Contents

Section 2 – Searches and Seizures...............................................................................................4

People vs. Marti [G.R. No. 81561, January 18, 1991]................................................................4
Stonehill vs. Diokno [G.R. No. L-19550, June 19, 1967].........................................................16
Mantaring vs. Judge Roman, A.M. No. RTJ-93-964, February 28, 1996.................................27
Soliven vs. Makasiar [G.R. No. 82585, November 14, 1988]...................................................32
Silva vs. Presiding Judge of RTC, Negros Oriental [G.R. No. 81756, October 21, 1991].......37
Morano vs. Vivo [G.R. No. L-22196, June 30, 1967]...............................................................43
Harvey vs. Santiago [G.R. No. 82544, June 28, 1988]..............................................................54
Salazar vs. Achacoso, G.R. No. 81510, March 14, 1990..........................................................61
Alvarez vs. CFI [G.R. No. 45358, January 29, 1937]...............................................................70
Mata vs. Bayona [G.R. No. 50720, March 26, 1984]................................................................83
People vs. Del Rosario [G.R. No. 109633, July 20, 1994]........................................................88
People vs. Gerente, G.R. No. 95847-48. March 10, 1993.........................................................96
Umil vs. Ramos [G.R. No. 81567, July 9, 1990].....................................................................103
People vs. Sucro [G.R. No. 93239, March 18, 1991]..............................................................119
Macad vs. People, [G.R. No. 227366, August 1, 2018]..........................................................127
People vs. Rodrigueza [G.R. No. 95902, February 4, 1992]...................................................144
Go. Vs. Court of Appeals [G.R. No. 101837, February 11, 1992]..........................................153
Posadas vs. Court of Appeals [G.R. No. 89139, August 2, 1990]...........................................169
People vs. Mengote [G.R. No. 87059, June 22, 1992]............................................................175
Malacat vs. Court of Appeals [G.R. No. 123595, December 12, 1997]..................................182
People vs. Aminnudin [G.R. No. L-74869, July 6, 1988].......................................................195
People vs. Malmstedt [G.R. No. 91107, June 19, 1991].........................................................203
Luz vs. People [G.R. No. 197788, February 29, 2012]...........................................................209
Espano vs. Court of Appeals [G.R. No. 120431, April 1, 1998].............................................218
United Laboratories vs. Isip, [G.R. No. 163858, June 28, 2005]............................................226
Papa vs. Mago [G.R. No. L-27360, February 28, 1968].........................................................239
People vs. Musa [G.R. No. 96177, January 27, 1993]............................................................253
People vs. Peralta, G.R. No. 145176, March 30, 2004............................................................266
Valmonte vs. De Villa [G.R. No. 83988, September 29, 1989]..............................................276
People vs. O’Cochlain [G.R. No. 229071, December 10, 2018].............................................279
Section 3 – Privacy of Communication and Correspondence.................................................306
Ople vs. Torres [G.R. No. 127685, July 23, 1998]..................................................................306
 Disini vs. Secretary of Justice [G.R. No. 203335, February 11, 2014]...................................332
Vivares vs. St. Theresa’s College, G.R. No. 202666, September 29, 2014............................341
Zulueta vs. Court of Appeals [G.R. No. 107383, February 20, 1996]....................................355
Ramirez vs. Court of Appeals [G.R. No. 93833, September 28, 1995]..................................359
Navarro vs. Court of Appeals [G.R. No. 121087, August 26, 1999]......................................369
Section 4..................................................................................................................................381
Freedom of Expression............................................................................................................381
Diocese of Bacolod vs. COMELEC, G.R. No. 205728, January 21, 2015.............................381
United States vs. Bustos [G.R. No. L-12592, March 8, 1918]................................................396
People vs. Alarcon [G.R. No. 46551, December 12, 1939]....................................................408
Ayer Productions PTY Ltd. vs. Capulong [G.R. No. L-82380, April 29, 1988].....................414
Borjal vs. Court of Appeals [G.R. No. 126466, January 14, 1999].........................................429
Reyes vs. Bagatsing [G.R. No. L-65366, November 9, 1983]................................................450
Pita vs. Court of Appeals [G.R. No. 80806, October 5, 1989]................................................463
Social Weather Stations, Inc. vs. COMELEC [G.R. No. 147571, May 5, 2001]....................477
Assembly and Petition.............................................................................................................484
Primicias vs. Fugoso [G.R. No. L-1800, January 27, 1948]....................................................484
Malabanan vs. Ramento [G.R. No. 62270, May 21, 1984].....................................................498
De la Cruz vs. Court of Appeals [G.R. No. 126183, March 25, 1999]...................................507
PBM Employees Association vs. Philippine Blooming Mills [G.R. No. L-31195, June 5,
1973]........................................................................................................................................516
Bayan vs. Ermita [G.R. No. 169838, April 25, 2006].............................................................536

Case list
Section 2 – Searches and Seizures

People vs. Marti [G.R. No. 81561, January 18, 1991]

Stonehill vs. Diokno [G.R. No. L-19550, June 19, 1967]
Mantaring vs. Judge Roman, A.M. No. RTJ-93-964, February 28, 1996
Soliven vs. Makasiar [G.R. No. 82585, November 14, 1988]
Silva vs. Presiding Judge of RTC, Negros Oriental [G.R. No. 81756, October
21, 1991]
Morano vs. Vivo [G.R. No. L-22196, June 30, 1967]
Harvey vs. Santiago [G.R. No. 82544, June 28, 1988]
Salazar vs. Achacoso, G.R. No. 81510, March 14, 1990
Alvarez vs. CFI [G.R. No. 45358, January 29, 1937]
Mata vs. Bayona [G.R. No. 50720, March 26, 1984]
People vs. Del Rosario [G.R. No. 109633, July 20, 1994]
People vs. Gerente, G.R. No. 95847-48. March 10, 1993.
Umil vs. Ramos [G.R. No. 81567, July 9, 1990]
People vs. Sucro [G.R. No. 93239, March 18, 1991]
Macad vs. People, [G.R. No. 227366, August 1, 2018]
People vs. Rodrigueza [G.R. No. 95902, February 4, 1992]
Go. Vs. Court of Appeals [G.R. No. 101837, February 11, 1992]
Posadas vs. Court of Appeals [G.R. No. 89139, August 2, 1990]
People vs. Mengote [G.R. No. 87059, June 22, 1992]
Malacat vs. Court of Appeals [G.R. No. 123595, December 12, 1997]
People vs. Aminnudin [G.R. No. L-74869, July 6, 1988]
People vs. Malmstedt [G.R. No. 91107, June 19, 1991]
Luz vs. People [G.R. No. 197788, February 29, 2012]
Espano vs. Court of Appeals [G.R. No. 120431, April 1, 1998]
United Laboratories vs. Isip, [G.R. No. 163958, June 28, 2005]
Papa vs. Mago [G.R. No. L-27360, February 28, 1968]
People vs. Musa [G.R. No. 96177, January 27, 1993]
People vs. Peralta, G.R. No. 145176, March 30, 2004
Valmonte vs. De Villa [G.R. No. 83988, September 29, 1989]
People vs. O’Cochlain [G.R. No. 229071, December 10, 2018]

Rules 113 and 126 of the Revised Rules of Court

Section 3 – Privacy of Communication and Correspondence

Ople vs. Torres [G.R. No. 127685, July 23, 1998]

Disini vs. Secretary of Justice [G.R. No. 203335, February 11, 2014]
Vivares vs. St. Theresa’s College, G.R. No. 202666, September 29, 2014
Zulueta vs. Court of Appeals [G.R. No. 107383, February 20, 1996]
Ramirez vs. Court of Appeals [G.R. No. 93833, September 28, 1995]
Navarro vs. Court of Appeals [G.R. No. 121087, August 26, 1999]

Section 4

Freedom of Expression

Diocese of Bacolod vs. COMELEC, G.R. No. 205728, January 21, 2015
United States vs. Bustos [G.R. No. L-12592, March 8, 1918]
People vs. Alarcon [G.R. No. 46551, December 12, 1939]
Ayer Productions PTY Ltd. vs. Capulong [G.R. No. L-82380, April 29, 1988]
Borjal vs. Court of Appeals [G.R. No. 126466, January 14, 1999]
Reyes vs. Bagatsing [G.R. No. L-65366, November 9, 1983]
Pita vs. Court of Appeals [G.R. No. 80806, October 5, 1989]
Social Weather Stations, Inc. vs. COMELEC [G.R. No. 147571, May 5, 2001]

Assembly and Petition

Primicias vs. Fugoso [G.R. No. L-1800, January 27, 1948]

Malabanan vs. Ramento [G.R. No. 62270, May 21, 1984]
 De la Cruz vs. Court of Appeals [G.R. No. 126183, March 25, 1999]
PBM Employees Association vs. Philippine Blooming Mills [G.R. No. L-31195,
June 5, 1973]
Bayan vs. Ermita [G.R. No. 169838, April 25, 2006]

Full Cases
Section 2 – Searches and Seizures
People vs. Marti [G.R. No. 81561, January 18, 1991]

[G.R. No. 81561. January 18, 1991.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B . Tatoy and Abelardo E . Rogacion for accused-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; GUARANTEE AGAINST

UNREASONABLE SEARCHES AND SEIZURES; PRONOUNCEMENT OF
UNITED STATES FEDERAL SUPREME COURT AND STATE APPELLATE
COURTS, DOCTRINAL IN THIS JURISDICTION. — Our present constitutional
provision on the guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which was in turn derived almost verbatim from the
Fourth Amendment to the United States Constitution. As such, the Court may
turn to the pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this jurisdiction.
2. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EXCLUSIONARY RULE ON
EVIDENCE OBTAINED IN VIOLATION OF THE GUARANTEE AGAINST
UNREASONABLE SEARCHES AND SEIZURES. — In a number of cases, the
Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard
against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz,
37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v.
Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also
Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; LIBERTIES MAY BE INVOKED
ONLY AGAINST THE STATE, NOT UPON PRIVATE INDIVIDUALS. — In the
absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked against the State. As this Court held in
Villanueva v. Querubin (48 SCRA 345 [1972]: 1. This constitutional right (against
unreasonable search and seizure) refers to the immunity of one's person,
whether citizen or alien, from interference by government, included in which is his
residence, his papers, and other possessions . . . That the Bill of Rights
embodied in the Constitution is not meant to be invoked against acts of private
individuals finds support in the deliberations of the Constitutional Commission.
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could only be invoked against the
State to whom the restraint against arbitrary and unreasonable exercise of power
is imposed.
4. ID.; ID.; ID.; GUARANTEE AGAINST UNREASONABLE SEARCH AND
SEIZURE; CASE AT BAR. — The contraband in the case at bar having come
into possession of the Government without the latter transgressing appellant's
rights against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the prosecution of
the offense charged. If the search is made upon the request of law enforcers, a
warrant must generally be first secured if it is to pass the test of constitutionality.
However, if the search is made at the behest or initiative of the proprietor of a
private establishment for its own and private purposes, as in the case at bar, and
without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual, not
the law enforcers, is involved. In sum, the protection against unreasonable
searches and seizures cannot be extended to acts committed by private
individuals so as to bring it within the ambit of alleged unlawful intrusion by the
government.
5. ID.; ID.; ID.; ID.; MERE PRESENCE OF NBI AGENTS TO OBSERVE AND
LOOK AT WHICH IS IN PLAIN SIGHT IS NOT A SEARCH. — The mere
presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution.
Merely to observe and look at that which is in plain sight is not a search. Having
observed that which is open, where no trespass has been committed in aid
thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the part of the arresting
officer, there is not the search that is prohibited by the constitution (US v. Lee
274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.
Ed. 2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).
6. ID.; CONSTITUTION; DOES NOT GOVERN RELATIONSHIP BETWEEN
INDIVIDUALS. — The constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern
relationships between individuals.
7. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; EVIDENCE PROCURED BY
INDIVIDUALS EFFECTED THROUGH PRIVATE SEIZURE, ADMISSIBLE. —
Similarly, the admissibility of the evidence procured by an individual effected
through private seizure equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
8. ID.; ID.; CREDIBILITY; SELF-SERVING DENIALS, DESERVE NO WEIGHT
IN LAW. — Denials, if unsubstantiated by clear and convincing evidence, are
negative self-serving evidence which deserve no weight in law and cannot be
given greater evidentiary weight than the testimony of credible witnesses who
testify on affirmative matters (People v. Esquillo, 171 SCRA 571
[1989]; People vs. Sariol, 174 SCRA 237 [1989]).
9. ID.; ID.; ID.; REQUISITE FOR EVIDENCE TO BE BELIEVED. — Evidence, to
be believed, must not only proceed from the mouth of a credible witness, but it
must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances.
10. ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; THINGS WHICH A
PERSON POSSESSES ARE PRESUMED OWNED BY HIM; CASE AT BAR. —
As records further show, appellant did not even bother to ask Michael's full name,
his complete address or passport number. Furthermore, if indeed, the German
national was the owner of the merchandise, appellant should have so indicated in
the contract of shipment. On the contrary, appellant signed the contract as the
owner and shipper thereof giving more weight to the presumption that things
which a person possesses, or exercises acts of ownership over, are owned by
him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.

DECISION

BIDIN, J :p

This is an appeal from a decision * rendered by the Special Criminal Court of

Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to Section 4, Article II and Section
2 (e)(i), Article I of Republic Act 6425, as amended, otherwise known as the
Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
"On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and
his common-law wife, Shirley Reyes, went to the booth of the "Manila
Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita,
Manila, carrying with them four (4) gift-wrapped packages. Anita Reyes
(the proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a
friend in Zurich, Switzerland. Appellant filled up the contract necessary
for the transaction, writing therein his name, passport number, the date
of shipment and the name and address of the consignee, namely,
"WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p.
6)
"Anita Reyes then asked the appellant if she could examine and inspect
the packages. Appellant, however, refused, assuring her that the
packages simply contained books, cigars, and gloves and were gifts to
his friend in Zurich. In view of appellant's representation, Anita
Reyes no longer insisted on inspecting the packages. The four (4)
packages were then placed inside a brown corrugated box one by two
feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of
the packages before the box was sealed with masking tape, thus making
the box ready for shipment (Decision, p. 8).
LLpr

"Before delivery of appellant's box to the Bureau of Customs and/or

Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita
(Reyes), following standard operating procedure, opened the boxes for
final inspection. When he opened appellant's box, a peculiar odor
emitted therefrom. His curiosity aroused, he squeezed one of the
bundles allegedly containing gloves and felt dried leaves inside.
Opening one of the bundles, he pulled out a cellophane wrapper
protruding from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams of the
contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
"Job Reyes forthwith prepared a letter reporting the shipment to the NBI
and requesting a laboratory examination of the samples he extracted
from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
"He brought the letter and a sample of appellant's shipment to the
Narcotics Section of the National Bureau of Investigation (NBI), at about
1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics Section. Job Reyes informed the
NBI that the rest of the shipment was still in his office. Therefore, Job
Reyes and three (3) NBI agents, and a photographer, went to the Reyes'
office at Ermita, Manila (tsn, p. 30, October 6, 1987).
"Job Reyes brought out the box in which appellant's packages were
placed and, in the presence of the NBI agents, opened the top flaps,
 removed the styro-foam and took out the cellophane wrappers from
inside the gloves. Dried marijuana leaves were found to have been
contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
"The package which allegedly contained books was likewise opened by
Job Reyes. He discovered that the package contained bricks or cake-like
dried marijuana leaves. The package which allegedly contained
tabacalera cigars was also opened. It turned out that dried marijuana
leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6,
1987).

"The NBI agents made an inventory and took charge of the box and of
the contents thereof, after signing a "Receipt" acknowledging custody of
the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's
stated address in his passport being the Manila Central Post Office, the agents
requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the
NBI to shed light on the attempted shipment of the seized dried leaves. On the
same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the
dried leaves were marijuana flowering tops as certified by the forensic chemist.
(Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
"THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE
FOUR PARCELS.
"THE LOWER COURT ERRED IN CONVICTING APPELLANT
DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE
CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED. cdphil

"THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE

EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS
CAME INTO HIS POSSESSION." (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been
obtained in violation of his constitutional rights against unreasonable search and
seizure and privacy of communication (Secs. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3
(2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
"Section 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
"Section 3. (1) The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public safety
or order requires otherwise as prescribed by law.
"(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding."
Our present constitutional provision on the guarantee against unreasonable
search and seizure had its origin in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized." (Sec. 1 [3], Article III).
was in turn derived almost verbatim from the Fourth Amendment ** to the
United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US
Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 2d [1961]),
this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible
any evidence obtained by virtue of a defective search and seizure warrant,
abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected
by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV)
constitutionalized the Stonehill ruling and is carried over up to the present with
the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable searches and seizures. (Bache &
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA
299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14,
1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its
law enforcers or other authorized government agencies. LLpr

On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by a
private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable
searches and seizure has been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's constitutional rights, be
invoked against the State?
We hold in the negative. In the absence of governmental interference, the
liberties guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
"1. This constitutional right (against unreasonable search and
seizure) refers to the immunity of one's person, whether citizen or alien,
from interference by government, included in which is his residence, his
papers, and other possessions . . .
". . . There the state, however powerful, does not as such have the
access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is called
upon to refrain from any invasion of his dwelling and to respect the
privacies of his life . . ." (Cf. Schermerber v. California, 384 US 757
[1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis
supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the
Court there in construing the right against unreasonable searches and seizures
declared that:
"(t)he Fourth Amendment gives protection against unlawful searches
and seizures, and as shown in previous cases, its protection applies to
governmental action. Its origin and history clearly show that it was
intended as a restraint upon the activities of sovereign authority, and
 was not intended to be a limitation upon other than governmental
agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested occupation
of his dwelling and the possession of his property, subject to the right of
seizure by process duly served."
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof
found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of
narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that
the search and seizure clauses are restraints upon the government and its
agents, not upon private individuals, (citing People v. Potter, 240 Cal. App.2d
621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965);
State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court
there said:
"The search of which appellant complains, however, was made by a
private citizen — the owner of a motel in which appellant stayed
overnight and in which he left behind a travel case containing the
evidence *** complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local
police, informed them of the bag's contents, and made it available to the
authorities.
"The fourth amendment and the case law applying it do not require
exclusion of evidence obtained through a search by a private citizen.
Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of the
Government without the latter transgressing appellant's rights against
unreasonable search and seizure, the Court sees no cogent reason why the
same should not be admitted against him in the prosecution of the offense
charged. LLphil

Appellant, however, would like this court to believe that NBI agents made an
illegal search and seizure of the evidence later on used in prosecuting the case
which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days.
In both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the
proposition that NBI agents conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly indicate that it was Mr. Job
Reyes, the proprietor of the forwarding agency, who made search/inspection of
the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery
of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 &
7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he
took samples of the same to the NBI and later summoned the agents to his place
of business. Thereafter, he opened the parcels containing the rest of the
shipment and entrusted the care and custody thereof to the NBI agents. Clearly,
the NBI agents made no search and seizure, much less an illegal one, contrary
to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure proscribed
by the Constitution. Merely to observe and look at that which is in plain sight is
not a search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the
constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of
California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122
[1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where
the property was taken into custody of the police at the specific request of the
manager and where the search was initially made by the owner there
is no unreasonable search and seizure within the constitutional meaning of the
term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental
law of the land must always be subject to protection. But protection against
whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights
answers the query which he himself posed, as follows:
"First, the general reflections. The protection of fundamental liberties in
the essence of constitutional democracy. Protection against
whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not the
relation between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some forbidden
 zones in the private sphere inaccessible to any power holder."
(Sponsorship Speech of Commissioner Bernas; Record of the
Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis
supplied)
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could only be invoked against the
State to whom the restraint against arbitrary and unreasonable exercise of power
is imposed. cdphil

If the search is made upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality. However, if the search
is made at the behest or initiative of the proprietor of a private establishment for
its own and private purposes, as in the case at bar, and without the intervention
of police authorities, the right against unreasonable search and seizure cannot
be invoked for only the act of private individual, not the law enforcers, is involved.
In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has
been modified by the present phraseology found in the 1987 Charter, expressly
declaring as inadmissible any evidence obtained in violation of the constitutional
prohibition against illegal search and seizure, it matters not whether the evidence
was procured by police authorities or private individuals (Appellant's Brief, p. 8,
Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not
govern relationships between individuals. Moreover, it must be emphasized that
the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to
the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June
30, 1987]. The modifications introduced deviate in no manner as to whom the
restriction or inhibition against unreasonable search and seizure is directed
against. The restraint stayed with the State and did not shift to anyone else.
Corollarily, alleged violations against unreasonable search and seizure may only
be invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State
would result in serious legal complications and an absurd interpretation of the
constitution.
Similarly, the admissibility of the evidence procured by an individual effected
through private seizure equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional rights to privacy and
communication.
2. In his second assignment of error, appellant contends that the lower court
erred in convicting him despite the undisputed fact that his rights under the
constitution while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of
the case and found nothing to indicate, as an "undisputed fact", that appellant
was not informed of his constitutional rights or that he gave statements without
the assistance of counsel. The law enforcers testified that accused/appellant was
informed of his constitutional rights. It is presumed that they have regularly
performed their duties (Sec. 5(m), Rule 131) and their testimonies should be
given full faith and credence, there being no evidence to the contrary. What is
clear from the records, on the other hand, is that appellant refused to give any
written statement while under investigation as testified by Atty. Lastimoso of the
NBI, Thus:
"Fiscal Formoso:
"You said that you investigated Mr. and Mrs. Job Reyes.
What about the accused here, did you investigate the
accused together with the girl?
"WITNESS:
"Yes, we have interviewed the accused together with the girl
but the accused availed of his constitutional right not to give
any written statement, sir." (TSN, October 8, 1987, p. 62;
Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by
the defense on cross-examination. As borne out by the records, neither was
there any proof by the defense that appellant gave uncounselled confession
while being investigated. What is more, we have examined the assailed
judgment of the trial court and nowhere is there any reference made to the
testimony of appellant while under custodial investigation which was utilized in
the finding of conviction. Appellant's second assignment of error is therefore
misplaced. cdphil

3. Coming now to appellant's third assignment of error, appellant would like us to

believe that he was not the owner of the packages which contained prohibited
drugs but rather a certain Michael, a German national, whom appellant met in a
pub along Ermita, Manila; that in the course of their 30-minute conversation,
Michael requested him to ship the packages and gave him P2,000.00 for the cost
of the shipment since the German national was about to leave the country the
next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger struck in half an hour could
not have pushed a man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as
the marijuana flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from
a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why
he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary
weight than the testimony of credible witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).
Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of hashish by
the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that
the consignee of the frustrated shipment, Walter Fierz, also a Swiss national,
was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances
(People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg.
130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further
show, appellant did not even bother to ask Michael's full name, his complete
address or passport number. Furthermore, if indeed, the German national was
the owner of the merchandise, appellant should have so indicated in the contract
of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed
the contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant
is therefore estopped to claim otherwise. LexLib
Premises considered, we see no error committed by the trial court in rendering
the assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond
reasonable doubt of the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
(People v. Marti, G.R. No. 81561, [January 18, 1991], 271 PHIL 51-65)
|||

Stonehill vs. Diokno [G.R. No. L-19550, June 19, 1967]

[G.R. No. L-19550. June 19, 1967.]

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J.

BROOKS and KARL BECK, petitioners, vs. HON. JOSE
W. DIOKNO, in his capacity as SECRETARY OF JUSTICE,
JOSE LUKBAN, in his capacity as Acting Director of the
National Bureau of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and MANUEL
VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES,
JUDGE AMADO ROAN, Municipal Court of Manila, JUDGE
ROMAN CANSINO, Municipal Court of Manila, JUDGE
HERMOGENES CALUAG, Court of First Instance of Rizal-
Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal
Court of Quezon City, respondents.

Paredes, Poblador, Cruz & Nazareno and Meer, Meer &

Meer and Juan T . David for petitioners.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico
P. de Castro, Assistant Solicitor General Frine C . Zaballero, Solicitor Camilo
D. Quiason and Solicitor C . Padua for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; SEARCH AND SEIZURE; WHO MAY

CONTEST LEGALITY THEREOF CASE AT BAR. — It is well settled that the
legality of a seizure can be contested only by the party whose rights have
been impaired thereby (Lewis vs. U.S., 6 F. 2d. 22) and that the objection to
an unlawful search and seizure is purely personal and cannot be availed of by
third parties (In. re Dooley, 48 F. 2d. 121: Rouda vs. U.S., 10 F. 2d. 916;
Lusco vs. U.S., 287 F. 69; Ganci vs. U.S., 287 F, 60; Moriz vs. U.S., 26 F. 2d.
444). Consequently, petitioner in the case at bar may not validly object to the
use in evidence against them of the document, papers, and things seized
from the offices and premises of the corporation adverted to, since the right to
object to the admission of said papers in evidence belongs exclusively to the
corporations, to whom the seized effects belong, and may not be invoked by
the corporate officers in proceedings against them in their individual capacity
U.S., vs. Gaas, 17 F. 2d. 997; People vs. Rubio, 57 Phil., 384).
2. ID.; ID.; REQUISITES FOR ISSUANCE OF SEARCH WARRANT. —
Two points must be stressed in connection with this constitutional mandate,
namely: (1) that no warrant issue but upon probable cause, to be determined
by the judge in the manner set forth in said provision; and (2) that the warrant
shall particularly describe the things to be seized. None of these requirements
has been complied with in the contested warrants. Indeed, the same were
issued upon applications stating that the natural and juridical persons therein
named had committed a "violation of Central Bank Laws, Tariff and Customs
Laws, Internal Revenue (Code) and Revised Penal Code." In other
words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to
have found the existence of probable cause, for the same presupposes the
introduction of competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given
provision of our criminal laws. As a matter of fact, the applications involved in
the case at bar do not allege any specific acts performed by herein
petitioners. It would be a legal heresy, of the highest order, to convict anybody
of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal
Revenue (Code) and Revised Penal Code", — as alleged in aforementioned
applications — without reference to any determine provision of said laws or
coders.
3. ID.; ID.; ID.; GENERAL WARRANTS ARE OUTLAWED BY THE
CONSTITUTION. — To uphold the validity of the warrants in question, would
be to wipe out completely one of the most fundamental rights guaranteed in
our Constitution, for it would place the sanctity of the domicile and the privacy
of communication and correspondence at the mercy of the victims, caprice or
passion of peace officers. This is precisely the evil sought to be remedied by
the constitutional provision Sec. 1, par. 3 Art. III, Const.) — to outlaw the so-
called general warrants. It is not difficult to imagine what would happen, in
times of keen political strife, when the party in power feels that the minority is
likely to wrest it, even though by legal means. Such is the seriousness of the
irregularities committed in connection with the disputed search warrants, that
this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court, by providing in its counterpart, under the Revised Rules of Court (Sec.
3, Rule 126) that "a search warrant shall not issue but upon probable cause in
connection with one specific offense." Not satisfied with this qualification, the
Court added thereto paragraph, directing that "no search warrant shall issue
for more than one specific offense."
4. ID.; ID.; ID.; ID.; CASE AT BAR. — The grave violation of the
Constitution made in the application for the contested search warrants was
compounded by the description therein made of the effects to be searched for
and seized, to wit: "Books of accounts, Financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and
other documents and/or papers, showing all business transactions including
disbursement receipts, balance sheets and related profit and loss
statements." Thus, the warrants authorized the search for and seizure of
records pertaining to all business transactions petitioners herein, regardless of
whether the transaction were legal or illegal. The warrants sanctioned the
seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our
Bill of Rights — that the things to be seized be particularly described —
as well as tending to defeat its major objective: the elimination
of general warrants.
5. ID.; ID.; ID.; NON-EXCLUSIONARY RULE CONTRAVENES THE
CONSTITUTIONAL PROHIBITIONS AGAINST UNREASONABLE SEARCH
AND SEIZURES. — Indeed, the non-exclusionary rule is contrary, not only to
the letter, but also to the spirit of the constitutional injunction against
unreasonable searches and seizures. To be sure, if the applicant for a search
warrant has competent evidence to establish probable cause of the
commission of a given crime by the party against whom the warrant is
intended, then there is no reason why the applicant should not comply with
the requirements of the fundamental law. Upon the other hand, if he
has no such competent evidence, then it is not possible for the Judge to find
that there is probable cause and only possible for the Judge to find that there
is probable cause and hence, no justification for the issuance of the warrant.
The only possible explanation (not justification) for its issuance is the
necessity of fishing evidence of the commission of crime. But when this
fishing expedition is indicative of the absence of evidence to establish a
probable cause.
6. ID.; ID.; ID.; ID.; PROSECUTION OF THOSE WHO SECURE
ILLEGAL SEARCH WARRANT OR MAKE UNREASONABLE SEARCH OR
SEIZURE IS NO EXCUSE. — The theory that the criminal prosecution of
those who secure an illegal search warrant and/or make unreasonable
searches or seizures would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that violations thereof are, in general,
committed by agents of the party in power, for certainly, those belonging to
the minority could not possibly abuse a power they do not have. Regardless
 of the handicap under which the minority usually but understandably finds
itself in prosecuting agents of the majority, one must not lose sight of the fact
that the psychological and moral effect of the possibility of securing their
conviction, is watered down by the pardoning power of the party for whose
benefit the illegality had been committed.
7. ID.; ID.; ID.; MONCADO DOCTRINE ABANDONED. — The doctrine
adopted in the Moncado case must be, as it is hereby, abandoned; the
warrants for the search of 3 residences of petitioners, as specified in the
Resolution of June 29, 1962, are null and void; the searches and seizures
therein made are illegal.

DECISION

CONCEPCION, C .J : p

Upon application of the officers of the government named on the

margin 1 — hereinafter referred to as Respondent-Prosecutors — several
judges 2 — hereinafter referred to as Respondent-Judges — issued, on
different dates, 3 a total of 42 search warrants against petitioners
herein 4 and/or the corporations of which they were officers, 5 directed to any
peace officer, to search the persons above-named and/or the premises of
their offices, warehouses and/or residences, and to seize and take
possession of the following personal property to wit:
"Books of accounts, financial records, vouchers, correspondence,
receipts, ledgers, journals, portfolios, credit journals, typewriters, and
other documents and/or papers showing all business transactions
including disbursements receipts, balance sheets and profit and loss
statements and Bobbins (cigarette wrappers)."
as "the subject of the offense; stolen or embezzled and proceeds or fruits of
the offense," or "used or intended to be used as the means of committing the
offense," which is described in the applications adverted to above as "violation
of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and
the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as
contravening the Constitution and the Rules of Court — because, inter alia:
(1) they do not describe with particularity the documents, books and things to
be seized; (2) cash money, not mentioned in the warrants, were actually
seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the
searches and seizures were made in an illegal manner; and (5) the
documents, papers and cash money seized were not delivered to the courts
that issued the warrants, to be disposed of in accordance with law — on
March 20, 1962, said petitioners filed with the Supreme Court this original
action for certiorari, prohibition, mandamus and injunction, and prayed that,
pending final disposition of the present case, a writ of preliminary injunction be
issued restraining Respondent-Prosecutors, their agents and or
representatives from using the effects seized as aforementioned, or any
copies thereof, in the deportation cases already adverted to, and that, in due
course, thereafter, decision be rendered quashing the contested search
warrants and declaring the same null and void, and commanding the
respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents,
papers, things and cash moneys seized or confiscated under the search
warrants in question.
In their answer, respondents-prosecutors alleged 6 (1) that the
contested search warrants are valid and have been issued in accordance with
law; (2) that the defects of said warrants, if any, were cured by petitioners'
consent; and (3) that, in any event, the effects seized are admissible in
evidence against herein petitioners, regardless of the alleged illegality of the
aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction
prayed for in the petition. However, by resolution dated June 29, 1962, the
writ was partially lifted or dissolved, insofar as the papers, documents and
things seized from the offices of the corporations above mentioned are
concerned; but, the injunction was maintained as regards the papers,
documents and things found and seized in the residences of petitioners
herein. 7
Thus, the documents, papers, and things seized under the alleged
authority of the warrants in question may be split into (2) major groups,
namely: (a) those found and seized in the offices of the aforementioned
corporations and (b) those found seized in the residences of petitioners
herein.
As regards the first group, we hold that petitioners herein
have no cause of action to assail the legality of the contested warrants and of
the seizures made in pursuance thereof, for the simple reason that said
corporations have their respective personalities, separate and distinct from
the personality of herein petitioners, regardless of the amount of shares of
stock or of the interest of each of them in said corporations, and whatever the
offices they hold therein may be. 8 Indeed, it is well settled that the legality of
a seizure can be contested only by the party whose rights have been impaired
thereby, 9 and that the objection to an unlawful search and seizure is
purely personal and cannot be availed of by third parties. 10 Consequently,
petitioners herein may not validly object to the use in evidence against them
of the documents, papers and things seized from the offices and premises of
the corporations adverted to above, since the right to object to the admission
of said papers in evidence belongs exclusively to the corporations, to whom
the seized effects belong, and may not be invoked by the corporate officers in
proceedings against them in their individual capacity. 11 Indeed, it has been
held:
". . . that the Government's action in gaining possession of papers
belonging to the corporation did not relate to nor did it affect the personal
defendants. If these papers were unlawfully seized and thereby the
constitutional rights of or any one were invaded, they were the rights of
the corporation and not the rights of the other defendants. Next, it is
clear that a question of the lawfulness of a seizure can be raised only by
one whose rights have been invaded. Certainly, such a seizure, if
unlawful, could not affect the constitutional rights of defendants whose
property had not been seized or the privacy of whose homes had not
been disturbed; nor could they claim for themselves the benefits of the
Fourth Amendment, when its violation, if any, was with reference to the
rights of another. Remus vs. United States (C.C.A.) 291 F. 501, 511. It
follows, therefore, that the question of the admissibility of the evidence
based on an alleged unlawful search and seizure does not extend to the
personal defendants but embraces only the corporation whose property
was taken . . ." (A. Guckenheimer & Bros. Co. vs. United States, [1925]
3 F. 2d, 786, 789, Emphasis supplied.)
With respect to the documents, papers and things seized in the
residences of petitioners herein, the aforementioned resolution of June 29,
1962, denied the lifting of the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining herein Respondent-Prosecutors
from using them in evidence against petitioners herein.
In connection with said documents, papers and things, two (2)
important questions need be settled, namely: (1) whether the search warrants
in question, and the searches and seizures made under the authority thereof,
are valid or not; and (2) if the answer to the preceding question is in the
negative, whether said documents, papers and things may be used in
evidence against petitioners herein.
Petitioners maintain that the aforementioned search warrants are in the
nature of general warrants and that, accordingly, the seizures effected upon
the authority thereof are null and void. In this connection, the
Constitution 13 provides:
 "The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures shall
not be violated, and no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized."
Two points must be stressed in connection with this constitutional
mandate, namely: (1) that no warrant shall issue but upon probable cause, to
be determined by the judge in the manner set forth in said provision; and (2)
that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested
warrants. Indeed, the same were issued upon applications stating that the
natural and juridical persons therein named had committed a "violation of
Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific offense had been alleged in
said applications. The averments thereof with respect to the offense
committed were abstract. As a consequence, it was impossible for the judges
who issued the warrants to have found the existence of probable cause, for
the same presupposes the introduction of competent proof that the party
against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws.
As a matter of fact, the applications involved in this case do not allege any
specific acts performed by herein petitioners. It would be a legal heresy, of the
highest order, to convict anybody of a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue (Code) and Revised Penal Code," — as
alleged in the aforementioned applications — without reference to any
determinate provision of said laws or codes.
To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our Constitution,
for it would place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the whims, caprice or
passion of peace officers. This is precisely the evil sought to be remedied by
the constitutional provision above quoted — to outlaw the so-called general
warrants. It is not difficult to imagine what would happen, in times of keen
political strife, when the party in power feels that the minority is likely to wrest
it, even though by legal means.
Such is the seriousness of the irregularities committed in connection
with the disputed search warrants, that this Court deemed it fit to amend
Section 3 of Rule 122 of the former Rules of Court 14 by providing in its
counterpart, under the Revised Rules of Court 15 that "a search warrant shall
not issue upon probable cause in connection with one specific offense." Not
satisfied with this qualification, the Court added thereto a paragraph, directing
that "no search warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the
contested search warrants was compounded by the description therein made
of the effects to be searched for and seized, to wit:
"Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals, typewriters,
and other documents and/or papers showing all business transactions
including disbursement receipts, balance sheets and related profit and
loss statements."
Thus, the warrants authorized the search for and seizure of records
pertaining to all business transactions of petitioners herein, regardless of
whether the transactions were legal or illegal. The warrants sanctioned the
seizure of all records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit command of our
Bill of Rights — that the things to be seized be particularly described — as
well as tending to defeat its major objective: the elimination
of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondent-
Prosecutors maintain that, even if the searches and seizures under
consideration were unconstitutional, the documents, papers and things thus
seized are admissible in evidence against petitioners herein. Upon mature
deliberation, however, we are unanimously of the opinion that the position
taken in the Moncado case must be abandoned. Said position was in line with
the American common law rule, that the criminal should not be allowed to go
free merely "because the constable has blundered," 16 upon the theory that
the constitutional prohibition against unreasonable searches and seizures is
protected by means other than the exclusion of evidence unlawfully
obtained, 17 such as the common-law action for damages against the
searching officer, against the party who procured the issuance of the search
warrant and against those assisting in the execution of an illegal search, their
criminal punishment, resistance, without liability to an unlawful seizure, and
such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this
approach and eventually adopted the exclusionary rule, realizing that this is
the only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures. In the language of Judge Learned
Hand:
"As we understand it, the reason for the exclusion of evidence
competent as such, which has been unlawfully acquired, is that
exclusion is the only practical way of enforcing the constitutional
 privilege. In earlier times the action of trespass against the offending
official may have been protection enough; but that is true no longer. Only
in case the prosecution which itself controls the seizing officials, knows
that it cannot profit by their wrong, will that wrong be repressed". 18
In fact, over thirty (30) years before, the Federal Supreme Court had
already declared:
"If letters and private documents can thus be seized and held and
used in evidence against a citizen accused of an offense, the protection
of the 4th Amendment, declaring his rights to be secure against such
searches and seizures, is of no value, and, so far as those thus placed
are concerned, might as well be stricken from the Constitution. The
efforts of the courts and their officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which
have resulted in their embodiment in the fundamental law of the land." 19
This view was, not only reiterated, but, also, broadened in subsequent
decisions of the same Federal Court. 20 After reviewing previous decisions
thereon, said Court held, in Mapp vs. Ohio (supra.):
". . . Today we once again examine the Wolf's constitutional
documentation of the right of privacy free from unreasonable state
intrusion, and, after its dozen years on our books, are led by it to close
the only courtroom door remaining open to evidence secured by official
lawlessness in flagrant abuse of that basic right, reserved to all persons
as a specific guarantee against that very same unlawful conduct. We
held that all evidence obtained by searches and seizures in violation of
the Constitution is, by that same authority, inadmissible in a State court.
"Since the Fourth Amendment's right of privacy has been
declared enforceable against the States through the Due Process
Clause of the Fourteenth, it is enforceable against them by the same
sanction of exclusion as it used against the Federal Government. Were it
otherwise, then just as without the Weeks rule the assurance against
unreasonable federal searches and seizures would be 'a form of words',
valueless and undeserving of mention in a perpetual charter of
inestimable human liberties, so too, 'without that rule the freedom from
state invasions of privacy would be so ephemeral and so neatly severed
from its conceptual nexus with the freedom from all brutish means of
coercing evidence as not to permit this Court's high regard as a freedom
implicit in the concept of ordered liberty.' At the time that the Court held
in Wolf that the Amendment was applicable to the States through the
Due Process Clause, the cases of this Court as we have seen, had
steadfastly held that as to federal officers the Fourth Amendment
included the exclusion of the evidence seized in violation of its
provisions. Even Wolf 'stoutly adhered' to that proposition. The right to
privacy, when conceded operatively enforceable against the States, was
 not susceptible of destruction by avulsion of the sanction upon which its
protection and enjoyment had always been deemed dependent under
the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally
unreasonable searches — state or federal — it was logically and
constitutionally necessary that the exclusion doctrine — an essential part
of the right to privacy — be also insisted upon as an essential ingredient
of the right newly recognized by the Wolf Case. In short, the admission
of the new constitutional right by Wolf could not consistently tolerate
denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by
reason of the unlawful seizure. To hold otherwise is to grant the right but
in reality to withhold its privilege and enjoinment. Only last year the
Court itself recognized that the purpose of the exclusionary rule 'is to
deter — to compel respect for the constitutional guaranty in the only
effectively available way — by removing the incentive to disregard it.' . . .
"The ignoble shortcut to conviction left open to the State tends to
destroy the entire system of constitutional restraints on which the
liberties of the people rest. Having once recognized that the right to
privacy embodied in the Fourth Amendment is enforceable against the
States, and that the right to be secure against rude invasions of privacy
by state officers is, therefore constitutional in origin, we can no longer
permit that right to remain an empty promise. Because it is enforceable
in the same manner and to like effect as other basic rights secured by
the Due Process Clause, we can no longer permit it to be revocable at
the whim of any police officer who, in the name of law enforceable itself,
chooses to suspend its enjoinment. Our decision, founded on reason
and truth, gives to the individual no more than that which the
Constitution guarantees him, to the police officer no less than that to
which honest law enforcement is entitled, and, to the courts, that judicial
integrity so necessary in the true administration of justice." (Emphasis
ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but,
also, to spirit of the constitutional injunction against unreasonable searches
and seizures. To be sure, if the applicant for a search warrant has competent
evidence to establish probable cause of the commission of a given crime by
the party against whom the warrant is intended, then there is no reason why
the applicant should not comply with the requirements of the fundamental law.
Upon the other hand, if he has no such competent evidence, then it is not
possible for the judge to find that there is probable cause, and,
hence, no justification for the issuance of the warrant. The only possible
explanation (not justification) for its issuance is the necessity
of fishing evidence of the commission of a crime. But, then, this fishing
expedition is indicative of the absence of evidence to establish a probable
cause.
Moreover, the theory that the criminal prosecution of those who secure
an illegal search warrant and/or make unreasonable searches or seizures
would suffice to protect the constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in general, committed by agents
of the party in power, for, certainly, those belonging to the minority could not
possibly abuse a power they do not have. Regardless of the handicap under
which the minority usually — but, understandably — finds itself in prosecuting
agents of the majority, one must not lose sight of the fact that the
psychological and moral effect of the possibility 21 of securing their conviction,
is watered down by the pardoning, power of the party for whose benefit the
illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of
this Court dated June 29, 1962, petitioners allege that Room Nos. 81 and 91
of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said Resolution as residences of
herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and
Karl Beck, respectively, and that, furthermore, the records, papers and other
effects seized in the offices of the corporations above referred to include
personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under
the latest rulings of the federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged
possession of and control over the aforementioned records, papers and
effects, and the alleged "personal" nature thereof, has been advanced, not in
their petition or amended petition herein, but in the Motion for Reconsideration
and Amendment of the Resolution of June 29, 1962. In other words, said
theory would appear to be a readjustment of that followed in said petitions, to
suit the approach intimated in the Resolution sought to be reconsidered and
amended. Then, too, some of the affidavits or copies of alleged affidavits
attached to said motion for reconsideration, or submitted in support thereof,
contain either inconsistent allegations, or allegations inconsistent with the
theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said
petitions and motion for reconsideration, and the contents of the
aforementioned affidavits and other papers submitted in support of said
motion, have sufficiently established the facts or conditions contemplated in
the cases relied upon by the petitioners, to warrant application of the views
therein expressed, should we agree thereto. At any rate, we do not deem it
 necessary to express our opinion thereon, it being best to leave the matter
open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must
be, as it is hereby, abandoned; that the warrants for the search of three (3)
residences of herein petitioners, as specified in the Resolution of June 29,
1962 are null and void; that the searches and seizures therein made are
illegal; that the writ of preliminary injunction heretofore issued, in connection
with the documents, papers and other effects thus seized in said residences
of herein petitioners is hereby made permanent, that the writs prayed for are
granted, insofar as the documents, papers and other effects so seized in the
aforementioned residences are concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as it is hereby, denied; and that
the petition herein is dismissed and the writs prayed for denied, as regards
the documents, papers and other effects seized in the twenty-nine (29)
places, offices and other premises enumerated in the same Resolution,
without special pronouncement as to costs.
It is so ordered.
(Stonehill v. Diokno, G.R. No. L-19550, [June 19, 1967], 126 PHIL 738-766)
|||

Mantaring vs. Judge Roman, A.M. No. RTJ-93-964, February 28, 1996

[A.M. No. RTJ-93-964. February 28, 1996.]

LEOVIGILDO
U. MANTARING, complainant, vs. JUDGE MANUEL A. ROMAN,
JR., RTC, Branch 42, Pinamalayan, Oriental Mindoro;
and JUDGE IRENEO B. MOLATO, MTC, Bongabon, Oriental
Mindoro, respondents.

SYLLABUS

1. REMEDIAL LAW; NEW TRIAL; REMEDY AVAILABLE TO PARTIES

DENIED OF A FAIR AND IMPARTIAL TRIAL. — There is a remedy available to
the party seeking the disqualification of the judge. If he is denied a fair and
impartial trial, caused by the judge's bias or prejudice, he can ask for a new trial
in the interest of justice which will be granted if that is really the case.
2. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; WARRANT OF
ARREST; BASIS FOR ISSUANCE. — The issuance of a search warrant and of a
warrant of arrest requires the showing of probabilities as to different facts. In the
case of search warrants, the determination is based on the finding that (1) the
articles to be seized are connected to a criminal activity and (2) they are found in
the place to be searched. It is not necessary that a particular person be
implicated. On the other hand, in arrest cases, the determination of probable
cause is based on a finding that a crime has been committed and that the person
to be arrested has committed it.
3. ID.; ID.; WARRANT OF ARREST; REQUIREMENTS FOR ISSUANCE.
— It is now settled that in issuing warrants of arrest in preliminary investigations,
the investigating judge must: (a) have examined in writing and under oath the
complainant and his witnesses by searching questions and answers; (b) be
satisfied that probable cause exists; and (c) that there is a need to place the
respondent under immediate custody in order not to frustrate the ends of justice.

DECISION

MENDOZA, J : p

Respondent Judge Ireneo B. Molato is the presiding judge of the Municipal

Trial Court of Bongabon, Oriental Mindoro. On January 7, 1993, an
administrative complaint was filed against him and Judge Manuel A. Roman, Jr.,
presiding judge of the Regional Trial Court of Pinamalayan, Oriental Mindoro,
Branch 42, by Leovigildo U. Mantaring, Sr., who charged them with conduct
unbecoming of members of the judiciary. On February 21, 1994, after the parties
had filed their respective pleadings and supporting documents, this Court
dismissed the complaint against the two for lack of merit. The motion for
reconsideration filed by complainant was subsequently denied.
What is before us now is the Supplemental Complaint filed by Leovigildo
U. Mantaring, Sr. against Judge Ireneo B. Molato, which charges him with
harassment. It is alleged that because of the filing of the first complaint against
him, respondent Judge Ireneo B. Molato should have inhibited himself from
conducting the preliminary investigation of a criminal case considering that the
respondents in that case were complainant and his son. Instead, it is alleged, he
took cognizance of the case and ordered the arrest of complainant and his son,
Leovigildo Mantaring, Jr., out of hatred and revenge for them because of the
filing of the first case by the complainant.
The Supplemental Complaint was referred to the Office of the Court
Administrator which, in a Memorandum dated 25 November 1994, recommended
the dismissal of the case for lack of merit. Nonetheless, the Court required the
respondent Judge Ireneo B. Molato to comment.
In his Comment dated July 6, 1995, respondent judge denies the
allegations against him. He avers that on the application by SPO4 Pacifico L.
Fradejas, he issued a search warrant which resulted in the seizure from a certain
Joel Gamo of a home-made gun, a hand grenade, five live ammunitions for Cal.
38 and three live ammunitions for 12 gauge shotgun; that on August 25, 1993, a
complaint for Illegal Possession of Firearms and Ammunition was filed against
Joel Gamo in which the herein complainant Leovigildo, Sr. and his son,
Leovigildo, Jr., were included; that finding that the house in which the firearms
and ammunition had been found was owned by complainant and his son, he
concluded that there was probable cause to believe that complainant and his son
were guilty of illegal possession of firearms and ammunition and accordingly
ordered their arrest. Respondent judge claims that he inhibited himself from the
case after he was ordered by the Executive Judge, RTC, Branch 41,
Pinamalayan, Oriental Mindoro.
In his Reply complainant contends that as the search warrant was issued
only against Joel Gamo and Mantaring, Jr. it was wrong for respondent judge to
find probable cause against him on the theory that, as owners of the house in
which the firearms and ammunition were found, they had constructive
possession of the same. He likewise contends that respondent judge did not
inhibit himself until after the preliminary examination was terminated and the
warrant of arrest issued, and only after complainant had filed a petition for
inhibition which the Executive Judge found to be well taken.
On October 16, 1995, this case was referred to the OCA for reevaluation,
report and recommendation. On January 12, 1996, the OCA submitted a
Memorandum, recommending dismissal of the supplemental complaint for lack of
merit, for the following reasons:
(1) It is erroneous for herein complainant to equate the application
for the issuance of search warrant with the institution and prosecution of
criminal action in a trial court. (Malaloan vs. Court of Appeals, 232
SCRA 249). Complainant cannot insist that since his name was not
included in the search warrant, the house designated to be searched did
not belong to him, and that he was not present at the preliminary
investigation of witnesses preparatory to the issuance of the questioned
warrant of arrest, there was no basis for respondent judge to order his
arrest.
(2) No taint of irregularity attended the issuance by
respondent judge of the warrant of arrest against complainant and his
son. Neither was the charge that the warrant of arrest was issued by
respondent judge in the spirit of anger, hatred or harassment purposes
substantiated.
To begin with, it cannot be contended that complainant
Leovigildo Mantaring, Sr. could not be proceeded against simply because he was
not included in the search warrant issued against Gamo and
Leovigildo Mantaring, Jr., who is apparently his son. The determination of
probable cause in preliminary investigations is based solely on the evidence
presented by the complainant, regardless of whether or not the respondent in
that case is named in the proceedings for a search warrant. As correctly pointed
out by, the OCA, 1 the issuance of a search warrant and of a warrant of arrest
requires the showing of probabilities as to different facts. In the case of search
warrants, the determination is based on the finding that (1) the articles to be
seized are connected to a criminal activity and (2) they are found in the place to
be searched. It is not necessary that a particular person be implicated. On
the other hand, in arrest cases, the determination of probable cause is based on
a finding that a crime has been committed and that the person to be arrested has
committed it.
In this case, the arrest of herein complainant and his son, together with
Joel Gamo, was ordered on the basis of respondent's finding that the place from
where the guns and ammunition were seized belonged to complainant
Leovigildo Mantaring, Sr. and the testimonies of witnesses presented by SPO4
Fradejas. Of course complainant denies that the house in which the firearms and
ammunition were found belonged to him and claims that at the time of the search
he was in Manila. The provincial prosecutor subsequently dismissed the case
against complainant on precisely these grounds, i.e., that the house did not
belong to complainant and he was in Manila at the time the search and seizure
were conducted. But to say this is not to say that respondent acted arbitrarily or
that he abused his powers so as to give ground for administrative disciplinary
action against him. It is only to say that he committed an error of judgment for
which complainant's remedy is judicial.
What we think requires serious consideration is the contention by the
complainant that respondent judge should have inhibited himself from conducting
the preliminary investigation of the criminal case, considering that the respondent
was the present complainant, who had earlier filed an administrative case against
the judge and another one.
We are not unmindful of the cases in which it was stated that the mere
filing of an administrative case against a judge by one of the parties before him is
not a ground for disqualifying him from hearing a case. 2 An examination of these
cases reveals, however, that the administrative cases were filed during the
pendency of the cases, and it is evident that the administrative cases were filed
only to force the judge to inhibit himself from the consideration of the case before
him. As this Court held, if on every occasion the party apparently aggrieved were
allowed to stop the proceedings in order to await the final decision on the desired
disqualification, or demand the immediate inhibition of the judge on the basis
alone of his being so charged, many cases would have to be kept pending or
perhaps there would not be enough judges left to handle all the cases pending in
all the courts. 3 On the other hand, there is a remedy available to the party
seeking the disqualification of the judge. If he is denied a fair and impartial trial,
caused by the judge's bias or prejudice, he can ask for a new trial in the interest
of justice which will be granted if that is really the case. 4
But, in the case at bar, an administrative complaint against respondent
and Judge Manuel A. Roman, Jr. had previously been filed and it was paramount
that respondent was free from any appearance of bias against, or hostility
toward, the complainant. The impression could not be helped that his action in
that case was dictated by a spirit of revenge against complainant for the latter's
having filed an administrative disciplinary action against the judge. The situation
called for sedulous regard on his part for the principle that a party is entitled to
nothing less than the cold neutrality of an impartial judge.
This circumstance should have underscored for respondent the need of
steering clear of the case because he might be perceived, rightly or wrongly, to
be susceptible to bias and partiality. For his judgment must not be tainted by
even the slightest suspicion of improbity or preconceived interest in order to
preserve at all times the faith and confidence in courts of justice by any party to
the litigation. 5
Indeed prudence should have made respondent judge heed the
admonition that "a spotless dispensation of justice requires not only that the
decision rendered be intrinsically fair but that the judge rendering it must at all
times maintain the appearance of fairness and impartiality." 6
Moreover, we think it was improper for respondent judge to have issued
the warrants of arrest against complainant and his son without any finding that it
was necessary to place them in immediate custody in order to prevent a
frustration of justice. It is now settled 7 that in issuing warrants of arrest in
preliminary investigations, the investigating judge must:
(a) have examined in writing and under oath the complainant and
his witnesses by searching questions and answers;
(b) be satisfied that probable cause exists; and
(c) that there is a need to place the respondent under immediate
custody in order not to frustrate the ends of justice.
In this case, respondent judge justified the issuance of the warrant of
arrest on the following ground:
In view of the above considerations [referring to the antecedent
facts], it is the honest belief and finding of the Court that there is
sufficient probable cause that the crime of Illegal Possession of Firearms
and Ammunition was committed and that the named three (3) accused
Joel Gamo, Leovigildo Mantaring, Sr. and Leovigildo Mantaring Jr. are
 the ones probably guilty thereof for which reason Warrant of Arrest was
issued by undersigned against them.
He thus ordered the issuance of warrant of arrest solely on his finding of
probable cause, totally omitting to consider the third requirement that there
must be a need to place the respondent under immediate custody "in order
not to frustrate the ends of justice."
The framers of the Constitution confined the determination of probable
cause as basis for the issuance of warrants of arrest and search warrants to
judges the better to secure the people against unreasonable searches and
seizures. Respondent judge failed to live up to this expectation by refusing to
inhibit himself even when his very impartiality was in question and worse by
issuing a warrant of arrest without determining whether or not it was justified by
the need to prevent a frustration of the ends of justice. Parenthetically, the
records show that the criminal complaints against herein complainant and his son
were eventually dismissed by the Provincial Prosecutor, but not without the
following parting words:
It cannot be gainsaid that respondents Mantarings were greatly
prejudiced and suffered damages as a consequence of their inclusion in
the criminal complaint. The unfortunate incident could have been
avoided had the Honorable Municipal Trial Judge exercised the
necessary prudence and judicial perpecuity [sic] expected of an
impartial Judge in the conduct of preliminary investigation before
issuance of warrant of arrest.
WHEREFORE, respondent judge Ireneo B. Molato is REPRIMANDED and
WARNED that commission of similar acts in the future will be dealt with more
severely. All other charges are dismissed for lack of merit.
SO ORDERED.
(Mantaring v. Roman, Jr., A.M. No. RTJ-93-964, [February 28, 1996], 324 PHIL
|||

387-395)
Soliven vs. Makasiar [G.R. No. 82585, November 14, 1988]

[G.R. No. 82585. November 14, 1988.]

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K.

AGCAOILI, and GODOFREDO L.
MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR,
Presiding Judge of the Regional Trial Court of Manila, Branch
35, UNDERSECRETARY SILVESTRE BELLO III, of the
Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF
MANILA AND PRESIDENT CORAZON C. AQUINO, respondents.
 [G.R. No. 82827. November 14, 1988.]

LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON

P. MAKASIAR, Presiding Judge of Branch 35 of the Regional
Trial Court, at Manila, THE HON. LUIS VICTOR CITY FISCAL
OF MANILA, PEOPLE OF THE PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT,
AND THE MEMBERS OF THE PROCESS SERVING UNIT AT
THE REGIONAL TRIAL COURT OF MANILA, respondents.

[G.R. No. 83979. November 14, 1988.]

LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY

CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE
BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO,
AND JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V . Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for
petitioner in G.R. No. 82827 and 83979.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW;

RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS COUNTER-
AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED
COMPLETED. — Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be
given the opportunity to submit counter-affidavits if he is so minded.
2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS AND EFFECTS; ISSUANCE OF WARRANT OF ARREST;
PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONAL
RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. — This
case is not a simple prosecution for libel. We have as complainant a powerful
and popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she
has taken the unorthodox step of going to court inspite of the invocations of
freedom of the press which would inevitably follow.
3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL
PROSECUTION; SUPREME COURT SHOULD DRAW THE DEMARCATION
LINE WHERE HARASSMENT GOES BEYOND USUAL DIFFICULTIES
ENCOUNTERED BY ANY ACCUSED. — There is always bound to be
harassment inherent in any criminal prosecution. Where the harassment goes
beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government
handling of sensitive issues and public affairs, this Court and not a lower tribunal
should draw the demarcation line.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE
DEFAMATION IS NOT AUTHORIZED, CRITICISM IS TO BE EXPECTED AND
SHOULD BE BORNE FOR THE COMMON GOOD. — As early as March 8,
1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the
case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and unjust accusation;
the wound can be assuaged with the balm of a clear conscience." The Court
pointed out that while defamation is not authorized, criticism is to be expected
and should be borne for the common good.
5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF
OFFENSES; LIBEL; RULES THEREON SHOULD BE EXAMINED FROM
VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT
OFFICIAL; THE SUPREME COURT SHOULD DRAW A FINE LINE INSTEAD
OF LEAVING IT TO A LOWER TRIBUNAL. — In fact, the Court observed that
high official position, instead of affording immunity from slanderous and libelous
charges would actually invite attacks by those who desire to create sensation. It
would seem that what would ordinarily be slander if directed at the typical person
should be examined from various perspectives if directed at a high government
official. Again, the Supreme Court should draw this fine line instead of leaving it
to lower tribunals.
6. ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME
THEREOF SHOULD BE FAITHFULLY APPLIED IN TRIAL OF LIBEL CASE. —
In the trial of the libel case against the petitioners, the safeguards in the name of
freedom of expression should be faithfully applied.

RESOLUTION
PER CURIAM : p

In these consolidated cases, three principal issues were raised: (1) whether or
not petitioners were denied due process when informations for libel were filed
against them although the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and, subsequently, by the President; (2)
whether or not the constitutional rights of Beltran were violated when respondent
RTC judge issued a warrant for his arrest without personally examining the
complainant and the witnesses, if any, to determine probable cause; and (3)
whether or not the President of the Philippines, under the Constitution, may
initiate criminal proceedings against the petitioners through the filing of a
complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March
30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration
and upheld the resolution of the Undersecretary of Justice sustaining the City
Fiscal's finding of a prima facie case against petitioners. A second motion for
reconsideration filed by petitioner Beltran was denied by the Secretary of Justice
on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for
reconsideration was denied by the Executive Secretary on May 16, 1988. With
these developments, petitioner's contention that they have been denied the
administrative remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of
denial of due process of law in the preliminary investigation is negated by the fact
that instead of submitting his counter-affidavits, he filed a "Motion to Declare
Proceeding Closed", in effect waiving his right to refute the complaint by filing
counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary
investigation completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent
provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law", has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses determination of probable
cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the complainant and
his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by
the fiscal regarding the existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require
the submission of supporting affidavits of witnesses to aid him in arriving
at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12,
setting down guidelines for the issuance of warrants of arrest. The procedure
therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed
procedure. Thus, with regard to the issuance of the warrants of arrest, a finding
of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be
sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to file
suit". He contends that if criminal proceedings ensue by virtue of the President's
filing of her complaint-affidavit, she may subsequently have to be a witness for
the prosecution, bringing her under the trial court's jurisdiction. This, continues
Beltran, would in an indirect way defeat her privilege of immunity from suit, as by
testifying on the witness stand, she would be exposing herself to possible
contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit
is to assure the exercise of Presidential duties and functions free from any
hindrance or distraction, considering that being the Chief Executive of the
Government is a job that, aside from requiring all of the office-holder's time, also
demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the
office and may be invoked only by the holder of the office; not by any other
person in the President's behalf Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the protection
afforded by the privilege and submit to the court's jurisdiction. The choice of
whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other
person.
As regards the contention of petitioner Beltran that he could not be held liable for
libel because of the privileged character or the publication, the Court reiterates
that it is not a trier of facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts,
gravely abused their discretion as to amount to lack of jurisdiction. Hence, the
writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack
of jurisdiction on the part of the public respondents, the Court Resolved to
DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to
maintain status quo contained in the Resolution of the Court en banc dated April
7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado,
JJ., concur.
(Soliven v. Makasiar, G.R. No. 82585, 82827, 83979 (Resolution), [November
|||

14, 1988], 249 PHIL 394-406)

Silva vs. Presiding Judge of RTC, Negros Oriental [G.R. No. 81756, October 21, 1991]

[G.R. No. 81756. October 21, 1991.]

 NICOMEDES SILVA @ "Comedes", MARLON SILVA @ "Tama"
and ANTONIETA SILVA, petitioners, vs. THE
HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT
OF NEGROS ORIENTAL, BRANCH XXXIII, DUMAGUETE
CITY, respondent.

Marcelo G. Flores for petitioners.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL

SEARCH AND SEIZURE; PURPOSE. — The purpose of the constitutional
provision against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasion of the
sanctity of the home, by officers of the law acting under legislative or judicial
sanction, and to give remedy against such usurpations when attempted.
(Alvero vs. Dizon, 76 Phil. 637 [1946]).
2. ID.; ID.; ID.; SEARCH WARRANT; REQUISITES FOR ISSUANCE THEREOF.
— Based on Section 2, Article III of the 1987 Constitution and Sections 3 and 4,
Rule 126 of the Rules of Court, the judge must, before issuing a search warrant,
determine whether there is probable cause by examining the complainant and
witnesses through searching questions and answers.
3. ID.; ID.; ID.; ID.; ID.; PROBABLE CAUSE; DEFINED. — In the
case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69,
767 this Court defined "probable cause" as follows: "The 'probable cause' for a
valid search warrant, has been defined 'as such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has
been committed, and that objects sought in connection with the offense are in the
place sought to be searched'. This probable cause must be shown to be within
the personal knowledge of the complainant or the witnesses he may produce and
not based on mere hearsay."
4. ID.; ID.; ID.; ID.; ID.; DUTY OF JUDGE TO PERSONALLY EXAMINE THE
APPLICANT AND THE WITNESSES; EFFECT OF FAILURE TO COMPLY. — In
issuing a search warrant, the judge must strictly comply with the
constitutional and statutory requirement that he must determine the
existence of probable cause by personally examining the applicant and his
witnesses in the form of searching questions and answers. His failure to
comply with this requirement constitutes grave abuse of discretion. As
declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114
SCRA 667, "the capricious disregard by the judge in not complying with the
requirements before issuance of search warrants constitutes
abuse of discretion".
5. ID.; ID.; ID.; ID.; SEIZURE OF PROPERTY NOT SPECIFIED IN THE
WARRANT; RULE. — The officers implementing the search warrant clearly
abused their authority when they seized the money of Antonieta Silva. This is
highly irregular considering that Antonieta Silva was not even named as
one of the respondents, that the warrant did not indicate the seizure of money but
only of marijuana leaves, cigarettes and joints, and that the search warrant was
issued for the seizure of personal property (a) subject of the offense and (b) used
or intended to be used as means of committing an offense and NOT for personal
property stolen or embezzled or other proceeds of fruits of the offense.

DECISION

FERNAN, C.J : p

In this special civil action for certiorari, petitioners seek the nullification of Search
Warrant No. 1 issued by respondent Judge as well as the return of the money in
the amount of P1,231.00 seized from petitioner Antonieta Silva.
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom
Detachment in Dumaguete City, Negros Oriental, filed an "Application for Search
Warrant" with the Regional Trial Court, Branch XXXIII, Dumaguete City against
petitioners Nicomedes Silva and Marlon Silva. 1 This application was
accompanied by a "Deposition of Witness" executed by Pfc. Arthur M. Alcoran
and Pat. Leon T. Quindo, also dated June 13, 1986. 2
On the same day, Judge Nickarter A. Ontal,
then Presiding Judge of the Regional Trial Court, Branch XXXIII, Dumaguete
City, pursuant to the said "Application for Search Warrant" and
"Deposition of Witness", issued Search Warrant No. 1, directing the aforesaid
police officers to search the room of Marlon Silva in the
residence of Nicomedes Silva for violation of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended. Pertinent
portions of Search Warrant No. 1 read as follows: prLL

"It appearing to the satisfaction of the undersigned after examining oath

(sic) MSGT. Ranulfo T. Villamor, Jr. and his witnesses (sic) Pfc. Arthur
M. Alcoran and Pat. Leon T. Quindo that there is probable cause to
believe that possession and control of Marijuana dried leaves,
cigarettes, joint has been committed or is about to be committed and that
 there are good and sufficient reasons to believe that marijuana dried
leaves, cigarettes, joint has in possession and/or control at Tama's
Room (Rgt. side 1st Floor) located at Nono-Limbaga Drive, Tanjay, Neg.
Or. which is/are:
"X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;
"X (Used or intended to be used as means of committing an
offense.
"You are hereby commanded to make an immediate search at any
time of the day (night) of the room of Tama Silva residence of his father
Comedes Silva to open (sic) aparadors, lockers, cabinets, cartoons,
containers, forthwith seize and take possession of the following
property Marijuana dried leaves, cigarettes, joint and bring the said
property to the undersigned to be dealt with as the law directs." 3
In the course of the search, the serving officers also seized money belonging to
Antonieta Silva in the amount of P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount
on the grounds that the search warrant only authorized the serving officers to
seize marijuana dried leaves, cigarettes and joint, and that said officers failed or
refused to make a return of the said search warrant in gross violation of Section
11, Rule 126 of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating
that the court "holds in abeyance the disposition of the said amount of P1,231.40
pending the filing of appropriate charges in connection with the search warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on
the grounds that (1) it was issued on the sole basis of a mimeographed
"Application for Search Warrant" and "Deposition of Witness", which were
accomplished by merely filling in the blanks and (2) the judge failed to personally
examine the complainant and witnesses by searching questions and answers in
violation of Section 3, Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz,
who, by then, had replaced retired Judge Ontal, issued an Order denying the
motion for lack of merit, finding the requisites necessary for the issuance of a
valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was
likewise denied by Judge Cruz in an order dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with
illegality and that respondent Judge should be viewed to have acted without or in
excess of jurisdiction, or committed grave abuse of discretion amounting to
lack of jurisdiction when he issued the Order dated August 11, 1987, denying
their motion to quash Search Warrant No. 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right
to personal liberty and security of homes against unreasonable searches and
seizures. This section provides: LLpr

"SECTION 2. The right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
The purpose of the constitutional provision against unlawful searches and
seizures is to prevent violations of private security in person and property, and
unlawful invasion of the sanctity of the home, by officers of the law acting under
legislative or judicial sanction, and to give remedy against such usurpations when
attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites
for the issuance of a search warrant, to wit:
"SECTION 3. Requisite for issuing search warrant. — A search warrant
shall not issue but upon probable cause in connection with one specific
offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the
things to be seized.
"SECTION 4. Examination of complainant; record. — The judge must,
before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath the complainant and
any witnesses he may produce on facts personally known to them and
attach to the record their sworn statements together with any affidavits
submitted."
Based on the aforecited constitutional and statutory provisions, the judge must,
before issuing a search warrant, determine whether there is probable cause by
examining the complainant and witnesses through searching questions and
answers.
In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180
SCRA 69, 767 this Court defined "probable cause" as follows:
"The 'probable cause' for a valid search warrant, has been defined 'as
such facts and circumstances which would lead a reasonably discreet
and prudent man to believe that an offense has been committed, and
that objects sought in connection with the offense are in the place sought
to be searched'. This probable cause must be shown to be within the
personal knowledge of the complainant or the witnesses he may
produce and not based on mere hearsay."

In the case at bar, we have carefully examined the questioned search warrant as
well as the "Application for Search Warrant" and "Deposition of Witness", and
found that Judge Ontal failed to comply with the legal requirement that he must
examine the applicant and his witnesses in the form of searching questions and
answers in order to determine the existence of probable cause. The joint
"Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was
submitted together with the "Application for Search Warrant" contained, for the
most part, suggestive questions answerable by merely placing "yes" or "no" in
the blanks provided thereon. In fact there were only four (4) questions asked, to
wit:
"Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for
a search warrant?"
A Yes, sir.
"Q Do you have personal knowledge that the said premises
subject of the offense stated above, and other
proceeds of fruit of the offense, used or obtain (sic) or intended to
be used as means of committing an offense?"
A Yes, sir. LexLib

"Q Do you know personally who is/are the person who has have the
property in his/their possession and control?"
A Yes, sir.
"Q How did you know all this (sic) things?"
A Through discreet surveillance." 9
The above deposition did not only contain leading questions but it was also very
broad. The questions propounded to the witnesses were in fact, not probing but
were merely routinary. The deposition was already mimeographed and all that
the witnesses had to do was fill in their answers on the blanks provided.
In the case of Nolasco vs. Paño, G.R. No. 69803, October 8, 1986, 139 SCRA
152, 163, this Court held:
"The 'probable cause' required to justify the issuance of a search warrant
comprehends such facts and circumstances as will induce a cautious
man to rely upon them and act in pursuant thereof Of the 8 questions
asked, the 1st, 2nd and 4th pertain to identity. The 3rd and 5th are
leading not searching questions. The 6th, 7th and 8th refer to the
description of the personalities to be seized, which is identical to that in
the Search Warrant and suffers from the same lack of particularity. The
examination conducted was general in nature and merely
repetitious of the deposition of said witness. Mere generalization will not
suffice and does not satisfy the requirements or probable cause upon
which a warrant may issue."
Likewise, in the Prudente case cited earlier, this Court declared the search
warrant issued as invalid due to the failure of the judge to examine the witness in
the form of searching questions and answers. Pertinent portion of the decision
reads:
"Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows
that it was too brief and short. Respondent Judge did not examine him
'in the form of searching questions and answers'. On the contrary, the
questions asked were leading as they called for a simple 'yes' or 'no'
answer. As held in Quintero vs. NBI, 'the questions propounded by
respondent Executive Judge to the applicant's witness are not
sufficiently searching to establish probable cause. Asking of leading
questions to the deponent in an application for search warrant, and
conducting of examination in a general manner, would not satisfy the
requirements for issuance of a valid search warrant." 10
Thus, in issuing a search warrant, the judge must strictly comply with the
constitutional and statutory requirement that he must determine the
existence of probable cause by personally examining the applicant and his
witnesses in the form of searching questions and answers. His failure to comply
with this requirement constitutes grave abuse of discretion. As declared
in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 667,
"the capricious disregard by the judge in not complying with the requirements
before issuance of search warrants constitutes abuse of discretion".
The officers implementing the search warrant clearly abused their authority when
they seized the money of Antonieta Silva. This is highly irregular considering that
Antonieta Silva was not even named as one of the respondents, that the warrant
did not indicate the seizure of money but only of marijuana leaves, cigarettes and
joints, and that the search warrant was issued for the seizure of personal
property (a) subject of the offense and (b) used or intended to be used as
means of committing an offense and NOT for personal property stolen or
embezzled or other proceeds of fruits of the offense. Thus, the
then presiding Judge Ontal likewise abused his discretion when he rejected the
motion of petitioner Antonieta Silva seeking the return of her seized money.
WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared
null and void. Respondent Judge of the Regional Trial Court of Negros Oriental,
Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the
amount of P1,231.40 which had earlier been seized from her by virtue of the
illegal search warrant. This decision is immediately executory. No costs. LexLib

SO ORDERED.
(Silva v. Presiding Judge, RTC of Negros Oriental, Br. XXXIII, Dumaguete City,
|||

G.R. No. 81756, [October 21, 1991], 280 PHIL 151-159)

Morano vs. Vivo [G.R. No. L-22196, June 30, 1967]

[G.R. No. L-22196. June 30, 1967.]

ESTEBAN MORANO, CHAN SAU WAH and FU YAN

FUN, petitioners-appellants, vs. HON. MARTINIANO VIVO, in his
capacity as Acting Commissioner of Immigration, respondent-
appellant.

Engracio Fabre Law Office for petitioners-appellants.

Solicitor General Arturo A. Alafriz, and Solicitor A. M. Amores for
respondent-appellant.

SYLLABUS

1. CITIZENSHIP; MARRIAGE OF AN ALIEN WOMAN TO A FILIPINO

CITIZEN; EFFECT THEREOF; CASE AT BAR. — In a series of cases, this
Court has declared that the marriage of an alien woman to a Filipino citizen
does not ipso facto make her a Filipino citizen. She must satisfactorily show
that she has all the qualifications and none of the disqualifications required by
the Naturalization Law. Considering that in the additional stipulation of facts of
July 3, 1963, petitioners admit that Chan-Sau Wah is not possessed of all the
qualifications required by the Naturalization Law there can be no doubt that
petitioner Chan Sau Wah did not become a Filipino citizen.
2. DEPORTATION PROCEEDINGS; SECTION I(3) ARTICLE III OF
THE CONSTITUTION NOT APPLICABLE. — The constitutional guarantee
set forth in Section 1(3), Article III of the Constitution, requiring that the issue
 of probable cause be determined by a judge, does not extend to deportation
proceedings (Tu Chuan Hai vs. Commissioner of Immigration, 55 Off.
Gaz., No. 28, pp. 681-683).
3. ID.; RULE AS TO TEMPORARY VISITORS UPON EXPIRATION OF
PERIOD OF STAY. — The law is to the effect that temporary visitors who do
not depart upon the expiration of the period of stay granted' them are subject
to deportation by the Commissioner of Immigration, for having violated the
limitation or condition under which they were admitted as non-immigrants
(Immigration Law, Sec. 37 (a), subsection (7); C.A. 613, as amended.
4. ID.; ID.; CHANGE OF STATUS; REQUISITES THEREFOR. — This
Court in a number of cases has ruled, and consistently too, that an alien
admitted as a temporary visitor cannot change his or her status without first
departing from the country and complying with the requirements of Section 9
of the Immigration Act. Thus, the marriage of a temporary alien visitor to a
Filipino does not ipso facto make her a permanent resident in this country.
5. ID.; CITIZENSHIP; MEANING OF "CHILD" IN SECTION 15
PARAGRAPH 3, COMMONWEALTH ACT 473. — The word child we are
certain means legitimate child, not a step-child. Thus, when the Constitution
provides that "those whose fathers are citizens of the Philippines are citizens
thereof" the fundamental charter intends "those" to apply to legitimate
children. In another case, the term "minor children" or "minor child" in Section
15 of the Revised Naturalization Law was interpreted to refer only to
legitimate children of Filipino citizens.
6. ID.; BONDS; RULE REQUIRING OFFICIAL APPROVAL THEREOF
MERELY DIRECTORY. — The provision requiring official approval of a bond
is merely directory. "Irregularity or entire failure in this respect does not affect
the validity of the bond." (9 C.J., p. 25).
7. ID.; ID.; ID.; ESTOPPEL ON EQUITABLE CONSIDERATIONS. —
Equitable consideration will stop petitioners from pleading invalidity of the
bond. They offered that bond to enable them to enter and stay in this country.
They enjoyed benefits therefrom. They cannot "in law and good conscience
be allowed to reap the fruits" of that bond, and then jettison the same. They
are "precluded from attacking the validity" of such bond.

DECISION

SANCHEZ, J : p
 Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6,
1932, arrived in the Philippines on November 23, 1961 to visit her cousin,
Samuel Lee Malaps. She left in mainland China two of her children by a first
marriage: Fu Tse Haw and Fu Yan Kai. With her was Fu Yan Fun, her minor
son also by the first marriage, born in Hongkong on September 11, 1957.
Chan Sau Wah and her minor son Fu Yan Fun were permitted entry
into the Philippines under a temporary visitor's visa for two (2) months and
after they posted a cash bond of P4,000.00.
On January 24, 1962, Chan Sau Wah married Esteban Morano, a
native-born Filipino citizen. Born to this union on September 16, 1962 was
Esteban Morano, Jr.
To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun
obtained several extensions. The last extension expired on September 10,
1962.
In a letter dated August 31, 1962, the Commissioner of Immigration
ordered Chan Sau Wah and her son, Fu Yan Fun, to leave the country on or
before September 10, 1962 with a warning that upon failure to do so, he will
issue a warrant for their arrest and will cause the confiscation of their bond.
Instead of leaving the country, on September 10, 1962, Chan Sau Wah
(with her husband Esteban Morano) and Fu Yan Fun petitioned the Court of
First Instance of Manila for mandamus to compel the Commissioner of
Immigration to cancel petitioner's Alien Certificates of Registration; prohibition
to stop the Commissioner from issuing warrants of arrest pending resolution
of this case. 1 The trial court, on November 3, 1962, issued the writ of
preliminary injunction prayed for, upon a P2,000-bond. After trial and the
stipulations of facts filed by the parties, the Court of First Instance rendered
judgment, viz:
"IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered as follows:
(a) Granting this petition for Mandamus and Prohibition with
respect to petitioner CHAN SAU WAH, who is hereby declared a citizen
of the Philippines; ordering the respondent to cancel her Alien Certificate
of Registration and other immigration papers upon the payment of
proper dues; and declaring the preliminary injunction with respect to her
permanent admission, prohibiting the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;
(b) Dismissing this petition with respect to petitioner FU YAN
FUN, and dissolving the writ of preliminary injunction issued herein,
restraining the respondent, his representatives or subordinates from
arresting and/or deporting said petitioner;
 (c) Authorizing respondent Commissioner to forfeit the bond filed
by herein petitioners CHAN SAU WAH and FU YAN FUN in the amount
of P4,000.00; and
(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of
the Philippine Immigration Act of 1940 unconstitutional
Without pronouncement as to costs."
Petitioners and respondent Commissioner both appealed.
We will deal with the claims of both appellants in their proper sequence.
1. The Solicitor General's brief assails the trial court's declaration that
Chan Sau Wah is a citizen of the Philippines. The court a quo took the
position that "Chan Sau Wah became, by virtue of, and upon, her marriage to
Esteban Morano, a natural-born Filipino, a Filipino citizen." 2
Placed to the fore is paragraph 1, Section 15 of Commonwealth Act
473 [Revised Naturalization Act], which reads:
'Sec. 15. Effect of the naturalization on wife and children. — Any
woman who is now or may hereafter be married to a citizen of the
Philippines, and who might herself be lawfully naturalized shall be
deemed a citizen of the Philippines."
To apply this provision, two requisites must concur: (a) a valid marriage
of an alien woman to a citizen of the Philippines; and (b) the alien woman
herself might be lawfully naturalized.
We may concede that the first requisite has been properly met. The
validity of the marriage is presumed.
But can the same be said of the second requisite? This question by all
means is not new. In a series of cases, this court has declared that the
marriage of an alien woman to a Filipino citizen does not ipso facto make her
a Filipino citizen. She must satisfactorily show that she has all the
qualifications and none of the disqualifications required by the Naturalization
Law. 3 Ly Giok Ha alias Wy Giok Ha, et al. vs. Emilio Galang, L-21332, March
18, 1966, clearly writes down the philosophy behind the rule in the following
expressive language, viz:
"Reflection will reveal why this must be so. The qualifications
prescribed under section 2 of the Naturalization Act, and the
disqualifications enumerated in its section 4, are not mutually exclusive;
and if all that were to be required is that the wife of a Filipino be not
disqualified under section 4, the result might well he that citizenship
would be conferred upon persons in violation of the policy of the statute.
For example, section 4 disqualified only —
 (c) Polygamists or believers in the practice of polygamy;
and
(d) Persons convicted of crimes involving moral turpitude',
so that a blackmailer, or a maintainer of gambling or bawdy houses, not
previously convicted by a competent court, would not be thereby
disqualified; still, it is certain that the law did not intend such a person to
be admitted as a citizen in view of the requirement of section 2 that an
applicant for citizenship 'must be of good moral character'.
Similarly, the citizen's wife might be a convinced believer in racial
supremacy, in government by certain selected classes, in the right to
vote exclusively by certain "herrenvolk', and thus disbelieve in the
principles underlying the Philippine Constitution; yet she would not be
disqualified under section 4, as long as she is not 'opposed to organized
government', nor affiliated to groups 'upholding or teaching doctrines
opposing all organized governments', nor 'defending or teaching the
necessity or propriety of violence, personal assault or assassination for
the success or predominance of their ideas'. Et sic de caeteris."
Upon the principle of selective citizenship, we cannot afford to depart
from the wise precept affirmed and reaffirmed in the cases heretofore noted.
In the additional stipulation of facts of July 3, 1963, petitioners admit
that Chan Sau Wah is not possessed of all the qualifications required by
the Naturalization Law.
Because of all these, we are left under no doubt that petitioner Chan
Sau Wah did not become a Filipino citizen.

2. Squarely put in issue by petitioners is the constitutionality of Section

37(a) of the Immigration Act of 1940, which reads:
"Sec. 37. (a) The following aliens shall be arrested upon the
warrant of the Commissioner of Immigration or of any other officer
designated by him for the purpose and deported upon the warrant of the
Commission of Immigration after a determination by the Board of
Commissioners of the existence of the ground for deportation as
charged against the alien:
xxx xxx xxx
(7) Any alien who remains in the Philippines in violation of any
limitation or condition under which he was admitted as a nonimmigrant."
Petitioners argue that the legal precept just quoted trenches upon the
constitutional mandate in Section 1 (3), Article III [Bill of Right] of the
Constitution, to wit:
 "(3) The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures shall
not be violated, and no warrants shall issue but upon probable cause, to
be determined by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be
seized."
They say that the Constitution limits to judges the authority to issue warrants
of arrest and that the legislative delegation of such power to the
Commissioner of Immigration is thus violative of the Bill of Rights.
Section 1 (3), Article III of the Constitution, we perceive, does not
require judicial intervention in the execution of a final order of deportation
issued in accordance with law. The constitutional limitation contemplates an
order of arrest in the exercise of judicial power 4 as a step preliminary or
incidental to prosecution or proceedings for a given offense or administrative
action, not as a measure indispensable to carry out a valid decision by a
competent official, such as a legal order of deportation, issued by the
Commissioner of Immigration, in pursuance of a valid legislation.
The following from American Jurisprudence, 5 is illuminating:
"It is thoroughly established that Congress has power to order the
deportation of aliens whose presence in the country it deems hurtful.
Owing to the nature of the proceeding, the deportation of an alien who is
found in this country in violation of law is not a deprivation of liberty
without due process of law. This is so, although the inquiry devolves
upon executive officers, and their findings of fact, after A fair though
summary hearing, are made conclusive."
xxx xxx xxx
"The determination of the propriety of deportation is not a
prosecution for, or a conviction of, crime; nor is the deportation a
punishment, even though the facts underlying the decision may
constitute a crime under local law. The proceeding is in effect simply a
refusal by the government to harbor persons whom it does not want. The
coincidence of local penal law with the policy of congress is purely
accidental, and, though supported by the same facts, a criminal
prosecution and a proceeding for deportation are separate and
independent."
In consequence, the constitutional guarantee set forth in Section 1(3),
Article III of the Constitution aforesaid requiring that the issue of probable
cause be determined by a judge, does not extend to deportation
proceedings. 6
 The view, we, here express funds support in the discussions during the
constitutional convention. The convention recognized, as sanctioned by due
process, possibilities and cases of deprivation of liberty, other than by order of
a competent court. 7
Indeed, the power to deport or expel aliens is an attribute of
sovereignty. Such power is planted on the "accepted maxim of international
law, that every sovereign nation has the power, as inherent in sovereignty,
and essential to self-preservation, to forbid the entrance of foreigners within
its dominions." 8 So it is, that this Court once aptly remarked that there can
be no controversy on the fact that where aliens are admitted as temporary
visitors, "the law is to the effect that temporary visitors who do not depart upon
the expiration of the period of stay granted them are subject to deportation by
the Commissioner of Immigration, for having violated the limitation or
condition under which they were admitted as non-immigrants (Immigration
Law, Sec. 37(a), subsection (7) C.A. 613, as amended)" 9
And, in a case directly in point, where the power of the Commissioner to
issue warrants of arrest was challenged as unconstitutional because "such
power is only vested in a judge by Section 1, paragraph 3, Article III of our
Constitution", this Court declared —
"This argument overlooks the fact that the stay of appellant Ng
Hua To as temporary visitor is subject to certain contractual stipulations
as contained in the cash bond put up by him, among them, that in case
of breach the Commissioner may require the recommitment of the
person in whose favor the bond has been filed. The Commissioner did
nothing but to enforce such condition. Such a step is necessary to
enable the Commissioner to prepare the ground for his deportation
under section 37 (a) of Commonwealth Act 613. A contrary interpretation
would render such power nugatory to the detriment of the State." 10
It is in this context that we rule that Section 37 (a) of the Immigration Act
of 1940 is not constitutionally proscribed.
3. A sequel to the question just discussed is the second error set forth
in the government's brief. The Solicitor General balks at the lower court's
ruling that petitioner Chan Sau Wah is entitled to permanent residence in the
Philippines without first complying with the requirements of Sections 9 and 13
of the Immigration Act of 1940, as amended by Republic Act 503.
We first go to the law, viz:
"SEC. 9 [last paragraph]
An alien who is admitted as a nonimmigrant cannot remain in the
Philippines permanently. To obtain permanent admission, a
nonimmigrant alien must depart voluntarily to some foreign country and
 procure from the appropriate Philippine consul the proper visa and
thereafter undergo examination by the officers of the Bureau of
Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of this Act."
xxx xxx xxx
"Sec. 13. Under the conditions set forth in this Act, there may be
admitted into the Philippines immigrants, termed 'quota immigrants' not
in excess of fifty (50) of any one nationality or without nationality for any
one calendar year, except that the following immigrants, termed
'nonquota immigrants, may be admitted without regard to such numerical
limitations.
The corresponding Philippine Consular representative abroad
shall investigate and certify the eligibility of a quota immigrant previous
to his admission into the Philippines. Qualified and desirable aliens who
are in the Philippines under temporary stay may be admitted within the
quota, subject to the provision of the last paragraph of section 9 of this
Act.
(a) The wife or the husband or the unmarried child under twenty-
one years of age of a Philippine citizen, if accompanying or following to
join such citizen:
(b) A child of alien parents born during the temporary visit abroad
of the mother, the mother having been previously lawfully admitted into
the Philippines for permanent residence, if the child is accompanying or
coming to join a parent and applies for admission within five years from
the date of its birth;"
Concededly, Chan Sau Wah entered the Philippines on a tourist
temporary visitor's visa. She is a non-immigrant. Under Section 15 just
quoted, she may therefore be admitted if she were a qualified and desirable
alien and subject to the provisions of the last paragraph of Section 9.
Therefore, first, she must depart voluntarily to some foreign
country; second, she must procure from the appropriate consul the proper
visa; and third, she must thereafter undergo examination by the officials of the
Bureau of Immigration at the port of entry for determination of her admissibility
in accordance with the requirements of the Immigration Act.
This Court in a number of cases has ruled, and consistently too, that an
alien admitted as a temporary visitor cannot change his or her status without
first departing from the country and complying with the requirements of
Section 9 of the Immigration Act. 11
The gravamen of petitioner's argument is that Chan Sau Wah has,
since her entry, married in Manila a native-born Filipino, Esteban Morano. It
will not particularly help analysis for petitioners to appeal to family solidarity in
an effort to thwart her deportation. Chan Sau Wah, seemingly is not one who
has a high regard for such solidarity. Proof: She left two of her children by the
first marriage, both minors, in the care of neighbors in Fukien, China.
Then, the wording of the statute heretofore adverted to is a forbidding
obstacle which will prevent this Court from writing into the law an additional
provision that marriage of a temporary alien visitor to a Filipino would ipso
facto make her a permanent resident in this country. This is a field closed to
judicial action. No breadth of discretion is allowed us. We cannot insulate her
from the State's power of deportation.
Really, it would be an easy matter for an alien woman to enter the
Philippines as a temporary visitor, go through a mock marriage, but actually
live with another man as husband and wife, and thereby skirt the provisions of
our immigration law. Also, a woman of undesirable character may enter this
country, ply a pernicious trade, marry a Filipino, and again throw overboard
Sections 9 and 13 of the Act. Such a flanking movement, we are confident, is
impermissible.
Recently we confirmed the rule that an alien wife of a Filipino may not
stay permanently without first departing from the Philippines. Reason:
Discourage entry under false pretenses. 12
The ruling of the trial court on this score should be reversed.
4. It is petitioner's turn to point as error the dismissal of the petition for
mandamus and prohibition with respect to petitioner Fu Yan Fun. Petitioner's
line of thought is this: Fu Yan Fun follows the citizenship of his mother. They
cite Section 15, paragraph 3, Commonwealth Act 473, which says that:
"A foreign-born minor child, if dwelling in the Philippines at the
time of the naturalization of the parent, shall automatically become a
Philippine citizen. . . ."
Petitioner's position is based on the assumption that Chan Sau Wah,
the mother, is a Filipino citizen. We have held that she is not. At best, Fu Yan
Fun is a step-son of Esteban Morano, husband of Chan Sau Wah. A step-son
is not a foreign-born child of the step-father. The word child, we are certain,
means legitimate child, not a step- child. We are not wanting in precedents.
Thus, when the Constitution provides that "[t]hose whose fathers are citizens
of the Philippines" are citizens thereof, 13 the fundamental charter intends
"those" to apply to legitimate children. 14 In another case, the term "minor
children" or "minor child" in Section 15 of the Revised Naturalization
Law refers only to legitimate children of Filipino citizens. This Court, thru Mr.
Chief Justice Roberto Concepcion, there said: 15
"It is claimed that the phrases 'minor children' and 'minor child',
used in these provisions, include adopted children. The argument is
 predicated upon the theory that an adopted child is, for all intents and
purposes, a legitimate child. Whenever, the word 'children' or 'child' is
used in statutes, it is generally understood, however, to refer to
legitimate children, unless the context of the law and its spirit indicate
clearly the contrary. Thus, for instance, when the Constitution provides
that 'those whose fathers are citizens of the Philippines', and 'those
whose mothers are citizens of the Philippines' who shall elect Philippine
citizenship upon reaching the age of majority are citizens of the
Philippines Article IV, Section 1, subdivisions [3] and (4]), our
fundamental law clearly refers to legitimate children (Chiongbian vs. De
Leon, 46 Off. Gaz., 3652-3654; Serra vs. Republic, L-4223, May 12,
1952)."
At any rate, Fu Yan Fun entered the Philippines as a temporary visitor.
The status of a temporary visitor cannot be converted into that of a permanent
resident, as we have heretofore held, without first complying with Section 9 of
the Immigration Law.
5. Petitioners finally aver that the lower court erred in authorizing
respondent Commissioner to forfeit the bond filed by petitioners Chan Sau
Wah and Fu Yan Fun in the amount of P4,000.00.
Here is petitioner's posture. They enjoyed their stay in the Philippines
upon a bond. Now they come to court and say that as the prescribed form of
this bond was not expressly approved by the Secretary of Justice in
accordance with Section 3 of Commonwealth Act 613, which reads —
"Sec. 3. . . . He [Commissioner of Immigration] shall, subject to
the approval of the Department Head, such rules and regulations and
prescribe such forms of bond, reports, and other papers, and shall issue
from time to time such instruction, not inconsistent with law, as he shall
deem best calculated to carry out the provisions of the immigration laws .
. ." that bond is void.
Reasons there are which prevent us from giving our imprimatur to this
argument.
The provision requiring official approval of a bond is merely directory.
"Irregularity or entire failure in this respect does not affect the validity of the
bond." 16 The reason for the rule is found in 9 C.J., p. 26 (footnote), which
reads:
"(a) Reason for rule. — 'Statutes requiring bonds to be approved
by certain officials are not for the purpose of protecting the obligors in
the bond, but are aimed to protect the public, to insure their solvency,
and to create evidence of an unimpeachable character of the fact of their
execution. When they are executed for a legal purpose, before a proper
tribunal, and are in fact accepted and approved by the officer or body,
whose duty it was to approve them, it could serve no useful purpose of
 the law to hold them invalid, to release all the obligation thereon, and to
defeat every purpose of its execution, simply because the fact of
approval was not indorsed precisely as had been directed by the
Legislature.' American Book Co., vs. Wells, 83 SW 622, 627, 26 Kyl
1159." (emphasis supplied)
And another. This bond was accepted by the government. It has been
there. The form of the bond here used is of long continued usage. If the
government did not question the form of the bond at all, then we must assume
that it counted with the Secretary's approval. For the presumption is that
official duty has been legally performed.
Surely enough, equitable considerations will stop petitioners from
pleading invalidity of the bond. They offered that bond to enable them to enter
and stay in this country. They enjoyed benefits therefrom. They cannot, "in
law and good conscience, be allowed to reap the fruits" of that bond, and then
jettison the same. They are "precluded from attacking the validity" of such
bond. 17
Actually, to petitioners the bond was good while they sought entry into
the Philippines; they offered it as security for the undertaking that they "will
actually depart from the Philippines" when their term of stay expires. Now that
the bond is being confiscated because they overstayed, they make an about-
face and say that such bond is null and void. They shall not profit from this
inconsistent position. Their bond should be confiscated.
Conformably to the foregoing, the judgment under review is hereby
modified as follows:
(1) The portion thereof which reads:
"(a) Granting this petition for Mandamus and Prohibition with
respect to petitioner CHAN SAU WAH, who is hereby declared a citizen
of the Philippines; ordering the respondent to cancel her Alien Certificate
of Registration and other immigration papers, upon the payment of
proper dues; and declaring the preliminary injunction with respect to her
permanent, prohibiting the respondent, his representatives or
subordinates from arresting and/or deporting said petitioner;"
is hereby reversed; and, in consequence —
The petition for mandamus and prohibition with respect to petitioner
Chan Sau Wah is hereby denied; and the judgment declaring her a citizen of
the Philippines, directing respondent to cancel her Alien Certificate of
Registration and other immigration papers, and declaring the preliminary
injunction with respect to her permanent, are all hereby set aside; and
(2) In all other respects, the decision appealed from is hereby affirmed.
 No costs. So ordered.
(Morano v. Vivo, G.R. No. L-22196, [June 30, 1967], 126 PHIL 928-943)
|||

Harvey vs. Santiago [G.R. No. 82544, June 28, 1988]

[G.R. No. 82544. June 28, 1988.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS

OF: ANDREW HARVEY, JOHN SHERMAN and ADRIAAN VAN
DEL ELSHOUT, petitioners, vs. HONORABLE COMMISSIONER
MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.

DECISION

MELENCIO-HERRERA,J : p

A petition for Habeas Corpus.

Petitioners Andrew Harvey and John Sherman, 52 and 72 years,
respectively, are both American nationals residing at Pagsanjan, Laguna,
while Adriaan Van Den Elshout, 58 years old, is a Dutch citizen also residing
at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27
February 1988 from their respective residences by agents of the Commission
on Immigration and Deportation (CID) by virtue of Mission Orders issued by
respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners
are presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles
who were apprehended after three months of close surveillance by CID
agents in Pagsanjan, Laguna. Two (2) days after apprehension, or on 29
February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted
for self-deportation and have left the country. One was released for lack of
evidence; another was charged not for being a pedophile but for working
without a valid working visa. Thus, of the original twenty two (22),only the
three petitioners have chosen to face deportation.
Seized during petitioners' apprehension were rolls of photo negatives
and photos of the suspected child prostitutes shown in salacious poses as
well as boys and girls engaged in the sex act. There were also posters and
other literature advertising the child prostitutes.
 The "Operation Report" on Andrew Harvey and Richard Sherman dated
29 February 1988 stated:
xxx xxx xxx
"ANDREW MARK HARVEY was found together with two young
boys.
"RICHARD SHERMAN was found with two naked boys inside his
room."
In respect of Van Den Elshout, the "After Mission Report," dated 27
February 1988 read in part:
"Noted:
There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime."
On 4 March 1988, deportation proceedings were instituted against
petitioners for being undesirable aliens under Section 69 of the Revised
Administrative Code (Deportation Case No. 88-13).The "Charge Sheet"
read inter alia:
"Wherefore, this Office charges the respondents for deportation,
as undesirable aliens, in that: they, being pedophiles, are inimical to
public morals, public health and public safety as provided in Section 69
of the Revised Administrative Code."
On 7 March 1988, Warrants of Arrest were issued by respondent
against petitioners for violation of Sections 37, 45 and 46 of the Immigration
Act and Section 69 of the Revised Administrative Code. On the same date,
the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release
Under Bond alleging that their health was being seriously affected by their
continuous detention. Upon recommendation of the Board of Commissioners
for their provisional release, respondent ordered the CID doctor to examine
petitioners, who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however,
respondent denied considering the certification by the CID physician that
petitioners were healthy. To avoid congestion, respondent ordered petitioners'
transfer to the CID detention cell at Fort Bonifacio, but the transfer was
deferred pending trial due to the difficulty of transporting them to and from the
CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion
stating that he had "finally agreed to a self-deportation" and praying that he be
"provisionally released for at least 15 days and placed under the custody of
Atty. Asinas before he voluntarily departs the country." On 7 April 1988, the
Board of Special Inquiry — III allowed provisional release of five (5) days only
under certain conditions. However, it appears that on the same date that the
aforesaid Manifestation/Motion was filed, Harvey and his co-petitioners had
already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition
for a Writ of Habeas Corpus. A Return of the Writ was filed by the Solicitor
General and the Court heard the case on oral argument on 20 April 1988. A
Traverse to the Writ was presented by petitioners to which a Reply was filed
by the Solicitor General.LLjur

Petitioners question the validity of their detention on the following

grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor
under Section 69 of the Revised Administrative Code, which legally clothes
the Commissioner with any authority to arrest and detain petitioners pending
determination of the existence of a probable cause leading to an
administrative investigation.
2) Respondent violated Section 2, Article III of the 1987
Constitution prohibiting unreasonable searches and seizures since the CID
agents were not clothed with valid Warrants of arrest, search and seizure as
required by the said provision.
3) Mere confidential information made to the CID agents and their
suspicion of the activities of petitioners that they are pedophiles, coupled with
their association with other suspected pedophiles, are not valid legal grounds
for their arrest and detention unless they are caught in the act. They further
allege that being a pedophile is not punishable by any Philippine Law nor is it
a crime to be a pedophile.
We reject petitioners' contentions and uphold respondent's official acts
ably defended by the Solicitor General.
There can be no question that the right against unreasonable searches
and seizures guaranteed by Article III, Section 2 of the 1987 Constitution, is
available to all persons, including aliens, whether accused of crime or not
(Moncado vs. People's Court,80 Phil. 1 [1948].One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be
based upon probable cause. Probable cause has been defined as referring to
"such facts and circumstances antecedent to the issuance of the warrant that
in themselves are sufficient to induce a cautious man to rely on them and act
in pursuance thereof" (People vs. Syjuco,64 Phil. 667 [1937];Alvarez vs.
CFI,64 Phil. 33 [1937]).
 The 1985 Rules on Criminal Procedure also provide that an arrest
without a warrant may be effected by a peace officer or even a private person
(1) when such person has committed, actually committing, or is attempting to
commit an offense in his presence; and (2) when an offense has, in fact, been
committed and he has personal knowledge of facts indicating that the person
to be arrested has committed it (Rule 113, Section 5).prcd

In this case, the arrest of petitioners was based on probable cause

determined after close surveillance for three (3) months during which period
their activities were monitored. The existence of probable cause justified the
arrest and the seizure of the photo negatives, photographs and posters
without warrant (See Papa vs. Mago,L-27360, February 28, 1968, 22 SCRA
857; People vs. Court of First Instance of Rizal,L-41686, November 17, 1980,
101 SCRA 86, cited in CRUZ, Constitutional Law, 1987 ed.,p. 143).Those
articles were seized as an incident to a lawful arrest and, are therefore,
admissible in evidence (Section 12, Rule 126, 1985 Rules on Criminal
Procedure).
But even assuming arguendo that the arrest of petitioners was not valid
at its inception, the records show that formal deportation charges have been
filed against them, as undesirable aliens, on 4 March 1988. Warrants of arrest
were issued against them on 7 March 1988 "for violation of Section 37, 45 and
46 of the Immigration Act and Section 69 of the Administrative Code." A
hearing is presently being conducted by a Board of Special Inquiry. The
restraint against their persons, therefore, has become legal. The Writ has
served its purpose. The process of the law is being followed (Cruz vs.
Montoya,L-39823, February 25, 1975, 62 SCRA 543)."Where a person's
detention was later made by virtue of a judicial order in relation to criminal
cases subsequently filed against the detainee, his petition for habeas
corpus becomes moot and academic" (Beltran vs. Garcia,L-49014, April 30,
1979, 89 SCRA 717)."It is a fundamental rule that a writ of habeas corpus will
not be granted when the confinement is or has become legal, although such
confinement was illegal at the beginning" (Matsura vs. Director of Prisons,77
Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest
illegal. Petitioners were found with young boys in their respective rooms, the
ones with John Sherman being naked. Under those circumstances the CID
agents had reasonable grounds to believe that petitioners had committed
"pedophilia" defined as "psycho-sexual perversion involving children" (Kraft-
Ebbing Psychopatia Sexualis, p. 555; "Paraphilia or unusual sexual activity in
which children are the preferred sexual object" (Webster's Third New
International Dictionary, 1971 ed.,p. 1665) [Solicitor General's Return of the
Writ, on p. 10].While not a crime under the Revised Penal Code, it is behavior
offensive to public morals and violative of the declared policy of the State to
promote and protect the physical, moral, spiritual, and social well-being of our
youth (Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail
should be considered as a waiver of any irregularity attending their arrest and
estops them from questioning its validity (Callanta v. Villanueva,L-24646 & L-
24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza,L-61770, January
31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in
accordance with Section 37(a) of the Philippine Immigration Act of 1940, in
relation to Section 69 of the Revised Administrative Code. Section 37(a)
provides in part:
"(a) The following aliens shall be arrested upon the warrant of the
Commissioner of Immigration and Deportation or any other officer
designated by him for the purpose and deported upon the warrant of the
Commissioner of Immigration and Deportation after a determination by
the Board of Commissioners of the existence of the ground for
deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the
summary and indivisible nature of a deportation proceeding, otherwise, the
very purpose of deportation proceedings would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-
22196, June 30, 1967, 20 SCRA 562). The specific constraints in both
the 1935 1 and 1987 2 Constitutions, which are substantially identical,
contemplate prosecutions essentially criminal in nature. Deportation
proceedings, on the other hand, are administrative in character. An order of
deportation is never construed as a punishment. It is preventive, not a penal
process. It need not be conducted strictly in accordance with ordinary Court
proceedings.
"It is of course well-settled that deportation proceedings do not
constitute a criminal action. The order of deportation is not a
punishment, (Mahler vs. Eby, 264 U.S.,32),it being merely the return to
his country of an alien who has broken the conditions upon which he
could continue to reside within our borders (U.S. vs. De los Santos, 33
Phil.,397).The deportation proceedings are administrative in character,
(Kessler vs. Stracker, 307 U.S.,22) summary in nature, and need not be
conducted strictly in accordance with the ordinary court proceedings
(Murdock vs. Clark, 53 F. [2d],155).It is essential, however, that the
warrant of arrest shall give the alien sufficient information about the
charges against him, relating the facts relied upon. (U.S. vs. Uhl, 211
F.,628.) It is also essential that he be given a fair hearing with the
 assistance of counsel, if he so desires, before unprejudiced investigators
(Strench vs. Pedaris, 55 F. [2d],597; Ex parte Jew You On, 16 F.
[2d],153).However, all the strict rules of evidence governing judicial
controversies do not need to be observed; only such as are fundamental
and essential, like the right of cross-examination. (U.S. vs. Hughes, 104
F. [2d],14; Murdock vs. Clark, 53 F. [2d],155.) Hearsay evidence may
even be admitted, provided the alien is given the opportunity to explain
or rebut it (Morrell vs. Baker, 270 F.,577; Sercerchi vs. Ward, 27 F.
Supp.,437)." (Lao Tang Bun vs. Fabre, 81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24
SCRA 155) that "the issuance of warrants of arrest by the Commissioner of
Immigration, solely for purposes of investigation and before a final order of
deportation is issued, conflicts with paragraph 3, Section 1 of Article III of
the Constitution" (referring to the 1935 Constitution) 3 is not invocable herein.
Respondent Commissioner's Warrant of Arrest issued on 7 March 1988 did
not order petitioners to appear and show cause why they should not be
deported. They were issued specifically "for violation of Sections 37, 45 and
46 of the Immigration Act and Section 69 of the Revised Administrative Code."
Before that, deportation proceedings had been commenced against them as
undesirable aliens on 4 March 1988 and the arrest was a step preliminary to
their possible deportation. cdrep

"Section 37 of the Immigration Law, which empowers the

Commissioner of Immigration to issue warrants for the arrest of
overstaying aliens is constitutional. The arrest is a step preliminary to the
deportation of the aliens who had violated the condition of their stay in
this country." (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the
Commissioner nugatory to the detriment of the State.
"The pertinent provision of Commonwealth Act No. 613, as
amended, which gives authority to the Commissioner of Immigration to
order the arrest of an alien temporary visitor preparatory to his
deportation for failure to put up new bonds required for the stay, is not
unconstitutional.
xxx xxx xxx
". . . Such a step is necessary to enable the Commissioner to
prepare the ground for his deportation under Section
37[a]of Commonwealth Act 613. A contrary interpretation would render
such power nugatory to the detriment of the State." (Ng Hua To vs.
Galang, G.R. No. 10140, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a
Judge, does not extend to deportation proceedings." (Morano vs. Vivo,
supra, citing Tiu Chun Hai vs. Commissioner, infra).There need
 be no "truncated" recourse to both judicial and administrative warrants in
a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs.
Deportation Board (G. R. No. 10280, September 30, 1963, 9 SCRA 27 [1963])
reiterated in Vivo vs. Montesa, supra, that "under the express terms of
our Constitution (the 1935 Constitution), it is therefore even doubtful whether
the arrest of an individual may be ordered by any authority other than a judge
if the purpose is merely to determine the existence of a probable cause,
leading to an administrative investigation." For, as heretofore stated, probable
cause had already been shown to exist before the warrants of arrest were
issued.
What is essential is that there should be a specific charge against the
alien intended to be arrested and deported, that a fair hearing be conducted
(Section 37[c]) with the assistance of counsel, if desired, and that the charge
be substantiated by competent evidence. Thus, Section 69 of the Revised
Administrative Code explicitly provides: LibLex

"Sec. 69. Deportation of subject of foreign power. A subject of a

foreign power residing in the Philippines shall not be deported, expelled,
or excluded from said Islands or repatriated to his own country by the
President of the Philippines except upon prior investigation, conducted
by said Executive or his authorized agent, of the ground upon which
such action is contemplated. In such a case the person concerned shall
be informed of the charge or charges against him and he shall be
allowed not less than 3 days for the preparation of his defense. He shall
also have the right to be heard by himself or counsel, to produce
witnesses in his own behalf, and to cross-examine the opposing
witnesses."
The denial by respondent Commissioner of petitioners' release on bail,
also challenged by them, was in order because in deportation proceedings,
the right to bail is not a matter of right but a matter of discretion on the part of
the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the
Philippine Immigration Act of 1940 provides that "any alien under arrest in a
deportation proceeding may be released under bond or under such other
conditions as may be imposed by the Commissioner of Immigration." The use
of the word "may" in said provision indicates that the grant of bail is merely
permissive and not mandatory on the part of the Commissioner. The exercise
of the power is wholly discretionary (Ong Hee Sang vs. Commissioner of
Immigration, L-9700, February 28, 1962, 4 SCRA 442). "Neither
the Constitution nor Section 69 of the Revised Administrative Code
guarantees the right of aliens facing deportation to provisional liberty on bail."
(Tiu Chun Hai, et al vs. Deportation Board,104 Phil. 949 [1958]).As
deportation proceedings do not partake of the nature of a criminal action, the
 constitutional guarantee to bail may not be invoked by aliens in said
proceedings (Ong Hee Sang vs. Commissioner of Immigration,supra).
Every sovereign power has the inherent power to exclude aliens from
its territory upon such grounds as it may deem proper for its self-preservation
or public interest (Lao Tan Bun vs. Fabre,81 Phil. 682 [1948]).The power to
deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick,38 Phil. 41[1918]).It is a police
measure against undesirable aliens whose continued presence in the country
is found to be injurious to the public good and the domestic tranquility of the
people (Forbes vs. Chuoco Tiaco, et al.,16 Phil. 534 [1910]).Particularly so in
this case where the State has expressly committed itself to defend the right of
children to assistance and special protection from all forms of neglect, abuse,
cruelty, exploitation, and other conditions prejudicial to their development
(Article XV, Section 3[2]).Respondent Commissioner of Immigration and
Deportation, in instituting deportation proceedings against petitioners, acted in
the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus
is hereby denied.
SO ORDERED.
(In re: Harvey v. Santiago, G.R. No. 82544, [June 28, 1988], 245 PHIL 809-
|||

821)
Salazar vs. Achacoso, G.R. No. 81510, March 14, 1990

[G.R. No. 81510. March 14, 1990.]

HORTENCIA SALAZAR, petitioner, vs. HON. TOMAS

D. ACHACOSO, in his capacity as Administrator of the
Philippine Overseas Employment Administration, and FERDIE
MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SYLLABUS

1. CONSTITUTIONAL LAW; WARRANTS OF SEARCH AND ARREST;

MAY BE ISSUED ONLY BY A JUDGE; EXCEPTION. — Under the new
Constitution, which states: . . . no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
 searched and the persons or things to be seized. It is only judges,
and no other, who may issue warrants of arrest and search. The exception is
in cases of deportation of illegal and undesirable aliens, whom the President
or the Commissioner of Immigration may order arrested, following a final order
of deportation, for the purpose of deportation.
2. ID.;ID.;SECRETARY OF LABOR; NO LONGER AUTHORIZED TO
ISSUE WARRANT. — The Secretary of Labor, not being a judge,
may no longer issue search or arrest warrants. Hence, the authorities must go
through the judicial process. To that extent, we declare Article 38, paragraph
(c),of the Labor Code, unconstitutional and of no force and effect.
3. ID.;ID.;IDENTIFY CLEARLY THE THINGS TO BE SEIZED. — We
have held that a warrant must identify clearly the things to be seized,
otherwise, it is null and void, thus: ...Another factor which makes the search
warrants under consideration constitutionally objectionable is that they are in
the nature of general warrants. ...In Stanford v. State of Texas, the search
warrant which authorized the search for `books, records, pamphlets, cards,
receipts, lists, memoranda, pictures, recordings and other written instruments
concerning the Communist Parties of Texas, and the operations of the
Community Party in Texas," was declared void by the U.S. Supreme Court for
being too general. In like manner, directions to 'seize any evidence in
connection with the violation of SDC 13-3703 or otherwise" have been held
too general, and that portion of a search warrant which authorized the seizure
of any "paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes (the statute dealing with the crime of
conspiracy)" was held to be a general warrant, and therefore invalid. The
description of the articles sought to be seized under the search warrants in
question cannot be characterized differently. ...

DECISION

SARMIENTO,J : p

This concerns the validity of the power of the Secretary of Labor to

issue warrants of arrest and seizure under Article 38 of the Labor Code,
prohibiting illegal recruitment.
LibLex

The facts are as follows:

xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza,
Pasay City, in a sworn statement filed with the Philippine Overseas
Employment Administration (POEA for brevity) charged petitioner
Hortencia Salazar, viz.:
"04. T: Ano ba ang dahilan at ikaw ngayon ay narito at nagbibigay ng
salaysay?
S: Upang ireklamo sa dahilan ang aking PECC Card ay ayaw
ibigay sa akin ng dati kong manager. — Horty Salazar — 615
R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap ang ginawang panloloko sa iyo ng
tao/mga taong inireklamo mo?
S: Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S: Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha
ang PECC Card ko at sinabing hahanapan ako ng Booking sa
Japan. Mag-9 months na ako sa Phils. ay hindi pa niya ako napa-
alis. So lumipat ako ng ibang company pero ayaw niyang ibigay
and PECC Card ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to
whom said complaint was assigned, sent to the petitioner the following
telegram:
"YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE
MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH
FLR. POEA BLDG. EDSA COR. ORTIGAS AVE.
MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE
CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF
LAW."
4. On the same day, having ascertained that the petitioner
had no license to operate a recruitment agency, public respondent
Administrator Tomas D. Achacoso issued his challenged CLOSURE
AND SEIZURE ORDER NO. 1205 which reads:
"HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential
Decree No. 1920 and Executive Order No. 1022, I hereby order
the CLOSURE of your recruitment agency being operated at No.
615 R.O. Santos St., Mandaluyong, Metro Manila and the seizure
of the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having
verified that you have —
 (1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same
code.
This ORDER is without prejudice to your criminal prosecution
under existing laws.
Done in the City of Manila, this 3rd day of November, 1987."
5. On January 26, 1988 POEA Director on Licensing and Regulation
Atty. Estelita B. Espiritu issued an office order designating respondents
Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as
members of a team tasked to implement Closure and Seizure Order No.
1205. Doing so, the group assisted by Mandaluyong policemen and
mediamen Lito Castillo of the People's Journal and Ernie Baluyot of
News Today proceeded to the residence of the petitioner at 615 R.O.
Santos St.,Mandaluyong, Metro Manila. There it was found that
petitioner was operating Hannalie Dance Studio. Before entering the
place, the team served said Closure and Seizure order on a certain Mrs.
Flora Salazar who voluntarily allowed them entry into the premises. Mrs.
Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.).However, when required
to show credentials, she was unable to produce any. Inside the studio,
the team chanced upon twelve talent performers — practicing a
dance number and saw about twenty more waiting outside. The team
confiscated assorted costumes which were duly receipted for by Mrs.
Asuncion Maguelan and witnessed by Mrs. Flora Salazar. cdphil

6. On January 28, 1988, petitioner filed with POEA the following letter:
"Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos,
Mandaluyong, Metro Manila, we respectfully request that the
personal properties seized at her residence last January 26, 1988
be immediately returned on the ground that said seizure was
contrary to law and against the will of the owner thereof. Among
our reasons are the following:
1. Our client has not been given any prior notice or hearing,
hence the Closure and Seizure Order No. 1205 dated
November 3, 1987 violates "due process of law"
guaranteed under Sec. 1, Art. III, of the Philippine
Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine
Constitution which guarantees right of the people "to
 be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever
nature and for any purpose."
3. The premises invaded by your Mr. Ferdie Marquez and five (5)
others (including 2 policemen) are the private residence of
the Salazar family, and the entry, search as well as the
seizure of the personal properties belonging to our client
were without her consent and were done with
unreasonable force and intimidation, together with grave
abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the
Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND
PESOS (P10,000.00) in all (and which were already due for
shipment to Japan) are returned within twenty-four (24) hours
from your receipt hereof, we shall feel free to take all legal action,
civil and criminal, to protect our client's interests.
We trust that you will give due attention to these important
matters."
7. On February 2, 1988, before POEA could answer the letter, petitioner
filed the instant petition; on even date, POEA filed a criminal complaint
against her with the Pasig Provincial Fiscal, docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition.
Although the acts sought to be barred are already fait accompli,thereby
making prohibition too late, we consider the petition as one for certiorari in
view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine
Overseas Employment Administration (or the Secretary of Labor) validly issue
warrants of search and seizure (or arrest) under Article 38 of the Labor Code?
It is also an issue squarely raised by the petitioner for the Court's resolution.
Under the new Constitution, which states:
. . . no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case,
it was declared that mayors may not exercise this power:
xxx xxx xxx
 But it must be emphasized here and now that what has just been
described is the state of the law as it was in September, 1985. The law
has since been altered. No longer does the mayor have at this time the
power to conduct preliminary investigations, much less issue orders of
arrest. Section 143 of the Local Government Code, conferring this power
on the mayor has been abrogated, rendered functus officio by the 1987
Constitution which took effect on February 2, 1987; the date of its
ratification by the Filipino people. Section 2, Article III of the 1987
Constitution pertinently provides that "no search warrant or warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the person or things to be
seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on
the basis thereof, warrants of arrest or search warrants; may be validly
exercised only by judges, this being evidenced by the elimination in
the present Constitution of the phrase, "such other responsible officer as
may be authorized by law" found in the counterpart provision of
said 1973 Constitution, who, aside from judges, might conduct
preliminary investigations and issue warrants of arrest or search
warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force exercises,
or was meant to exercise, prosecutorial powers, and on that ground, it
cannot be said to be a neutral and detached "judge" to determine the
existence of probable cause for purposes of arrest or search. Unlike a
magistraté, a prosecutor is naturally interested in the success of his
case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands,
invariably, as the accused's adversary and his accuser. To permit him to
issue search warrants and indeed, warrants of arrest, is to make him
both judge and jury in his own right, when he is neither. That makes, to
our mind and to that extent, Presidential Decree No. 1936 as
amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was
entered as an amendment by Presidential Decrees Nos. 1920 and 2018 of the
late President Ferdinand Marcos, to Presidential Decree No. 1693, in the
exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised
recommendatory powers: prLL

(c) The Minister of Labor or his duly authorized representative shall have
the power to recommend the arrest and detention of any person
engaged in illegal recruitment. 6
 On May 1, 1984, Mr. Marcos promulgated Presidential Decree No.
1920, with the avowed purpose of giving more teeth to the campaign against
illegal recruitment. The Decree gave the Minister of Labor arrest and closure
powers:
(b) The Minister of Labor and Employment shall have the power to cause
the arrest and detention of such non-licensee or non-holder of authority if
after proper investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the closure of
companies, establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without having been
licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential
Decree No. 2018, giving the Labor Minister search and seizure powers as
well:
(c) The Minister of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and detention
of such non-licensee or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers. The
Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in
illegal recruitment activities and the closure of companies, establishment
and entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized to do
so. 8
The above has now been etched as Article 38, paragraph (c) of the
Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of
authoritarian rule in its twilight moments.
We reiterate that the Secretary of Labor, not being a judge,
may no longer issue search or arrest warrants. Hence, the authorities must go
through the judicial process. To that extent, we declare Article 38, paragraph
(c),of the Labor Code, unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not
well-taken. Vivo involved a deportation case, governed by Section 69 of the
defunct Revised Administrative Code and by Section 37 of the Immigration
Law. We have ruled that in deportation cases, an arrest (of an undesirable
alien) ordered by the President or his duly authorized representatives, in order
to carry out a final decision of deportation is valid. 10 It is valid, however,
because of the recognized supremacy of the Executive in matters involving
foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco
Tiaco vs. Forbes,228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125).That
power may be exercised by the Chief Executive "when he deems such
action necessary for the peace and domestic tranquility of the nation."
Justice Johnson's opinion is that when the Chief Executive finds that
there are aliens whose continued presence in the country is injurious to
the public interest, "he may, even in the absence of express law, deport
them".(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569;
In re McCulloch Dick, 38 Phil. 41).
cdll

"The right of a country to expel or deport aliens because their continued

presence is detrimental to public welfare is absolute and unqualified"
(Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and the
Director of NBI, 104 Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation
is, obviously, exceptional. It (the power to order arrests) can not be made to
extend to other cases, like the one at bar. Under the Constitution, it is the sole
domain of the courts.
Moreover, the search and seizure order in question, assuming, ex
gratia argumenti, that it was validly issued, is clearly in the nature of a general
warrant:
Pursuant to the powers vested in me under Presidential Decree No.
1920 and Executive Order No. 1022, I hereby order the CLOSURE of
your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of
committing illegal recruitment, it having verified that you have —
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same
code.
This ORDER is without prejudice to your criminal prosecution under
existing laws. 13
We have held that a warrant must identify clearly the things to be
seized, otherwise, it is null and void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized
in this wise:
"1) All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders, dictaphone
and the like used an/or connected in the printing of the 'WE
FORUM' newspaper and any and all documents/communications,
letters and facsimile of prints related to the 'WE FORUM'
newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other
publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free
Philippines, Light-a-Fire Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the 'WE
FORUM' and other subversive materials and propaganda, more
particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP
665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472
with marking 'Bagong Silang.'"
In Stanford v. State of Texas,the search warrant which authorized the
search for 'books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the
Communist Parties of Texas, and the operations of the Community Party
in Texas,' was declared void by the U.S. Supreme Court for being too
general. In like manner, directions to 'seize any evidence in connection
with the violation of SDC 13-3703 or otherwise" have been held too
general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-
197 of the Connecticut General Statutes (the statute dealing with the
crime of conspiracy)" was held to be a general warrant, and therefore
invalid. The description of the articles sought to be seized under the
search warrants in question cannot be characterized differently.
LLpr

In the Stanford case, the U.S. Supreme court calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown were
 given roving commissions to search where they pleased in order to
suppress and destroy the literature of dissent both Catholic and Puritan."
Reference herein to such historical episode would not be relevant for it is
not the policy of our government to suppress any newspaper or
publication that speaks with "the voice of non-conformity" but
poses no clear and imminent danger to state security. 14
For the guidance of the bench and the bar, we reaffirm the following
principles:
1. Under Article III, Section 2, of the 1987 Constitution, it is only judges,
and no other, who may issue warrants of arrest and search;
2. The exception is in cases of deportation of illegal and undesirable
aliens, whom the President or the Commissioner of Immigration may order
arrested, following a final order of deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of
the Labor Code is declared UNCONSTITUTIONAL and null and void. The
respondents are ORDERED to return all materials seized as a result of the
implementation of Search and Seizure Order No. 1205. cdrep

No costs.
SO ORDERED.
||| (Salazar v. Achacoso, G.R. No. 81510, [March 14, 1990], 262 PHIL 160-171)

Alvarez vs. CFI [G.R. No. 45358, January 29, 1937]

[G.R. No. 45358. January 29, 1937.]

NARCISO ALVAREZ, petitioner, vs. THE COURT OF FIRST

INSTANCE OF TAYABAS and THE ANTI-USURY
BOARD, respondents.

Godofredo Reyes for petitioner.

Adolfo N. Feliciano for respondent Anti-Usury Board.
No appearance for other respondent.

SYLLABUS

1. CRIMINAL PROCEDURE; SEARCH WARRANT; DEFINITION. — A

search warrant is an order in writing, issued in the name of the People of the
Philippine Islands, signed by a judge or a justice of the peace, and directed to
a peace officer, commanding him to search for personal property and bring it
before the court (section 95, General Orders, No. 58, as amended by section
6 of Act No. 2886).
2. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES. — Of all the
rights of a citizen, few are of greater importance or more essential to his
peace and happiness than the right of personal security, and that involves the
exemption of his private affairs, books, and papers from the inspection and
scrutiny of others (In re Pacific Railway Commission, 32 Fed., 241; Interstate
Commerce Commn. vs. Brimson, 38 Law. ed., 1047; Boyd vs. U.S., 29 Law.
ed., 746; Carroll vs. U. S., 69 Law. ed., 543, 549). While the power to search
and seize is necessary to the public welfare, still it must be exercised and the
law enforced without transgressing the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to
the basic principles of government (People vs. Elias, 147 N. E., 472).
3. ID.; ID. — As the protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges of the court,
these constitutional guaranties should be given a liberal construction or a
strict construction in favor of the individual, to prevent stealthy encroachment
upon, or gradual depreciation of, the rights secured by them (State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373).
Since the proceeding is a drastic one, it is the general rule that statutes
authorizing searches and seizures or search warrants must be strictly
construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed.
[2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613).
4. ID.; ID.; OATH. — In its broadest sense, an oath includes any form of
attestation by which a party signifies that he is bound in conscience to perform
an act faithfully and truthfully; and it is sometimes defined as an outward
pledge given by the person taking it that his attestation or promise is made
under an immediate sense of his responsibility to God (Bouvier's Law
Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N.
S.], 7; Pumphrey vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State
vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required
must refer to the truth of the facts within the personal knowledge of the
petitioner or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause (U. S. vs.
Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 839; U. S. vs. Pitotto,
267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652.) The true test of sufficiency
of an affidavit to warrant issuance of a search warrant is whether it has been
drawn in such a manner that perjury could be charged thereon and affiant be
held liable for damages caused (State vs. Roosevelt County 20th Jud. Dis.
Ct., 244 Pac. 280; State vs. Quartier, 236 Pac., 746).
 5. ID.; UNREASONABLE SEARCH AND SEIZURE. — Unreasonable
searches and seizures are a menace against which the constitutional
guaranties afford full protection. The term "unreasonable search and seizure"
is not defined in the Constitution or in General Orders, No. 58, and it is said to
have no fixed, absolute or unchangeable meaning, although the term has
been defined in general language. All illegal searches and seizures are
unreasonable while lawful ones are reasonable. What constitute a reasonable
or unreasonable search or seizure in any particular case is purely a judicial
question, determinable from a consideration of the circumstances involved,
including the purpose of the search, the presence or absence of probable
cause, the manner in which the search and seizure was made, the place or
thing searched, and the character of the articles procured (Go-Bart Importing
Co., vs. U.S., 75 Law. ed., 374; Peru vs. U. S., 4 Fed. [2d], 881; U.S., vs.
Vatune, 229 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145; Lambert vs. U. S.
282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed.
Cas. [No. 9252], 2 Biss., 99).
6. ID.; ID.; NECESSITY OF TAKING THE AFFIDAVITS OF THE
WITNESSES. — Neither the Constitution nor General Orders, No 58 provides
it of imperative necessity to take the depositions of the witnesses to be
presented by the applicant or complainant in addition to the affidavit of the
latter. The purpose of both in requiring the presentation of depositions is
nothing else than to satisfy the committing magistrate of the existence of
probable cause. Therefore, if the affidavit of the applicant or complainant is
sufficient, the judge may dispense with that of other witnesses. Inasmuch as
the affidavit of the agent in this case was insufficient because his knowledge
of the facts was not personal but merely hearsay, it was the duty of the judge
to require the affidavit of one or more witnesses for the purpose of
determining the existence of probable cause to warrant the issuance of the
search warrant. When the affidavit of the applicant or complainant contains
sufficient if the judge is satisfied that there exists probable cause; when the
applicants knowledge of the facts is mere hearsay, the affidavit of one or more
witnesses having personal knowledge of the facts is necessary. We conclude,
therefore, that the warrant issued is likewise illegal because it was based only
on the affidavit of the agent who had no personal knowledge of the facts.
7. CRIMINAL PROCEDURE; SEARCH WARRANT; SERVICE AT
NIGHT. — Section 101 of General Orders, No. 58 authorizes that the search
be made at night when it is positively asserted in the affidavit that the property
is on the person or in the place ordered to be searched. As we have declared
the affidavit insufficient and the warrant issued exclusively upon it illegal, our
conclusion is that the contention is equally well founded and that the search
could not legally be made at night.
 8. ID.; ID.; DESCRIPTION OF ARTICLES. — Section 1, paragraph (3)
of Article III of the Constitution, and section 97 of General Orders, No. 58
provide that the affidavit to be presented, which shall serve as the basis for
determining whether probable cause exists and whether the warrant should
be issued, must contain a particular description of the place to be searched
and the person or thing to be seized. These provisions are mandatory and
must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs.
Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.
Borkowski, 268 Fed., 408; In re Tri- State Coal & Coke Co., 253 Fed., 605;
People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. A., 415); but
where, by the nature of the goods to be seized, their description must be
rather general, it is not required that a technical description be given, as this
would mean that no warrant could issue (People vs. Rubio, 57 Phil., 384;
People vs. Kahn, supra).
9. ID.; ID.; ID. — The only description of the articles given in the
affidavit presented to the judge was as follows: "that there are being kept in
said premises books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as money- lender, charging a usurious
rate of interest, in violation of the law." Taking into consideration the nature of
the articles so described, it is clear that no other more adequate and detailed
description could be given, particularly because it is difficult to give a
particular description of the contents thereof. The description so made
substantially complies with the legal provisions because the officer of the law
who executed the warrant was thereby placed in a position enabling him to
identify the articles in question, which he did.
10. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES; SEIZURE
OF BOOKS AND DOCUMENTS TO BE USED AS EVIDENCE IN CRIMINAL
PROCEEDINGS AGAINST THE OWNER OR POSSESSOR THEREOF. —
At the hearing of the incidents of the case raised before the court, it clearly
appeared that the books and documents had really been seized to enable the
Anti-Usury Board to conduct an investigation and later use all or some of the
articles in question as evidence against the petitioner in the criminal cases
that may be filed against him. The seizure of books and documents by means
of a search warrant, for the purpose of using them as evidence in a criminal
case against the person in whose possession they were found, is
unconstitutional because it makes the warrant unreasonable, and it is
equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself (Uy Kheytin vs. Villareal,
42 Phil., 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed.,
365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S., 116 U. S., 616; Carroll
vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the
documents in question were seized for the purpose of using them as evidence
 against the petitioner in the criminal proceeding or proceedings for violation of
the Anti-Usury Law, which it is attempted to institute against him, we hold that
the search warrant issued is illegal and that the documents should be
returned to him.
11. ID.; ID.; WAIVER OF THE CONSTITUTIONAL GUARANTEES. —
The Anti- Usury Board insinuates in its answer that the petitioner cannot now
question the validity of the search warrant or the proceedings had subsequent
to the issuance thereof, because he has waived his constitutional rights in
proposing a compromise whereby he agreed to pay a fine of P200 for the
purpose of evading the criminal proceeding or proceedings. We are of the
opinion that there was no such waiver, first, because the petitioner has
emphatically denied the offer of compromise and, second, because if there
was a compromise it referred not to the search warrant and the incidents
thereof but to the institution of criminal proceedings for violation of the Anti-
Usury Law. The waiver would have been a good defense for the respondents
had the petitioner voluntarily consented to the search and seizure of the
articles in question, but such was not the case because the petitioner
protested from the beginning and stated his protest in writing in the insufficient
inventory furnished him by the agents.
12. CIVIL PROCEDURE; MANDAMUS; WHEN IT LIES. — Section 222
of the Code of Civil Procedure in fact provides that mandamus will not issue
when there is another plain, speedy and adequate remedy in the ordinary
course of law. We are of the opinion, however, that an appeal from said
orders would not in this case be a plain, speedy and adequate remedy for the
petitioner because a long time would have to elapse before he recovers
possession of the documents and before the rights, for which he has been
unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426;
Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban
vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).

DECISION

IMPERIAL, J : p

The petitioner asks that the warrant of June 3, 1936, issued by the
Court of First Instance of Tayabas, ordering the search of his house and the
seizure, at any time of the day or night, of certain accounting books,
documents and papers belonging to him in his residence situated in Infanta,
Province of Tayabas, as well as the order of a later date, authorizing the
agents of the Anti-Usury Board to retain the articles seized, be declared illegal
and set aside, and prays that all the articles in question be returned to him.
On the date above-mentioned, the chief of the secret service of the
Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo
Gutierrez David then presiding over the Court of First Instance of Tayabas, an
affidavit alleging that according to reliable information, the petitioner kept in
his house in Infanta, Tayabas, books, documents, receipts, lists, chits and
other papers used by him in connection with his activities as a money-lender,
charging usurious rates of interest in violation of the law. In his oath at the end
of the affidavit, the chief of the secret service stated that his answers to the
questions were correct to the best of his knowledge and belief. He did not
swear to the truth of his statements upon his own knowledge of the facts but
upon the information received by him from a reliable person. Upon the
affidavit in question the judge, on said date, issued the warrant which is the
subject matter of the petition, ordering the search of the petitioner's house at
any time of the day or night, the seizure of the books and documents above-
mentioned and the immediate delivery thereof to him to be disposed of in
accordance with the law. With said warrant, several agents of the Anti-Usury
Board entered the petitioner's store and residence at seven o'clock on the
night of June 4, 1936, and seized and took possession of the following
articles: internal revenue licenses for the years 1933 to 1936, one ledger, two
journals, two cashbooks, nine order books, four notebooks, four check stubs,
two memorandums, three bankbooks, two contracts, four stubs, forty-eight
stubs of purchases of copra, two inventories, two bundles of bills of lading,
one bundle of credit receipts, one bundle of stubs of purchases of copra, two
packages of correspondence, one receipt book belonging to Luis Fernandez,
fourteen bundles of invoices and other papers, many documents and loan
contracts with security and promissory notes, 504 chits, promissory notes and
stubs of used checks of the Hongkong & Shanghai Banking Corporation. The
search for and seizure of said articles were made with the opposition of the
petitioner who stated his protest below the inventories on the ground that the
agents seized even the originals of the documents. As the articles had not
been brought immediately to the judge who issued the search warrant, the
petitioner, through his attorney, filed a motion on June 8, 1936, praying that
the agent Emilio L. Siongco, or any other agent, be ordered immediately to
deposit all the seized articles in the office of the clerk of court and that said
agent be declared guilty of contempt for having disobeyed the order of the
court. On said date the court issued an order directing Emilio L. Siongco to
deposit all the articles seized within twenty-four hours from the receipt of
notice thereof and giving him a period of five (5) days within which to show
cause why he should not be punished for contempt of court. On June 10th,
Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that the Anti-
Usury Board be authorized to retain the articles seized for a period of thirty
(30) days for the necessary investigation. The attorney for the petitioner, on
June 20th, filed another motion alleging that, notwithstanding the order of the
8th of said month, the officials of the Anti-Usury Board had failed to deposit
the articles seized by them and praying that a search warrant be issued, that
the sheriff be ordered to take all the articles into his custody and deposit them
in the clerk's office, and that the officials of the Anti-Usury Board be punished
for contempt o court. Said attorney, on June 24th, filed an ex parte petition
alleging that while agent Emilio L. Siongco had deposited some documents
and papers in the office of the clerk of court, he had so far failed to file an
inventory duly verified by oath of all the documents seized by him, to return
the search warrant together with the affidavit presented in support thereof, or
to present the report of the proceedings taken by him; and prayed that said
agent be directed to file the documents in question immediately. On the 25th
of said month the court issued an order requiring agent Emilio L. Siongco
forthwith to file the search warrant and the affidavit in the court, together with
the proceedings taken by him, and to present an inventory duly verified by
oath of all the articles seized. On July 2d of said year, the attorney for the
petitioner filed another petition alleging that the search warrant issued was
illegal and that it had not yet been returned to date together with the
proceedings taken in connection therewith, and praying that said warrant be
cancelled, that an order be issued directing the return of all the articles seized
to the petitioner, that the agent who seized them be declared guilty of
contempt of court, and that charges be filed against him for abuse of authority.
On September 10, 1936, the court issued an order holding: that the search
warrant was obtained and issued in accordance with the law, that it had been
duly complied with and, consequently, should not be cancelled, and that agent
Emilio L. Siongco did not commit any contempt of court and must, therefore,
be exonerated, and ordering the chief of the Anti-Usury Board in Manila to
show cause, if any, within the unextendible period of two (2) days from the
date of notice of said order, why all the articles seized appearing in the
inventory, Exhibit 1, should not be returned to the petitioner. The assistant
chief of the Anti-Usury Board of the Department of Justice filed a motion
praying, for the reasons stated therein, that the articles seized be ordered
retained for the purpose of conducting an investigation of the violation of the
Anti-Usury Law committed by the petitioner. In view of the opposition of the
attorney for the petitioner, the court, on September 25th, issued an order
requiring the Anti-Usury Board to specify the time needed by it to examine the
documents and papers seized and which of them should be retained, granting
it a period of five (5) days for said purpose. On the 30th of said month the
assistant chief of the Anti-Usury Board filed a motion praying that he be
granted ten (10) days to comply with the order of September 25th and that the
clerk of court be ordered to return to him all the documents and papers
together with the inventory thereof. The court, in an order of October 2d of
said year, granted him the additional period of ten (10) days and ordered the
clerk of court to send him a copy of the inventory. On October 10th, said
official again filed another motion alleging that he needed sixty (60) days to
examine the documents and papers seized, which are designated on pages 1
to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26, 27, 30, 31 , 34, 36, 37, 38,
39, 40, 41, 42, 43 and 45, and praying that he be granted said period of sixty
(60) days. In an order of October 16th, the court granted him the period of
sixty (60) days to investigate said nineteen (19) documents. The petitioner
alleges, and it is not denied by the respondents, that these nineteen (19)
documents continue in the possession of the court, the rest having been
returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the
People of the Philippine Islands, signed by a judge or a justice of the peace,
and directed to a peace officer, commanding him to search for personal
property and bring it before the court (section 95, General Orders, No. 58, as
amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of
greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his private
affairs, books, and papers from the inspection and scrutiny of others (In
re Pacific Railway Commission, 32 Fed., 241; Interstate Commerce Commn.
vs. Brimson, 38 Law. ed., 1047; Boyd vs. U. S., 29 Law. ed., 746; Carroll vs.
U. S., 69 Law. ed., 543, 549). While the power to search and seize is
necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights of citizens, for the enforcement
of no statute is of sufficient importance to justify indifference to the basic
principles of government (People vs. Elias, 147 N. E., 472).
II. As the protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges of the court,
these constitutional guaranties should be given a liberal construction or a
strict construction in favor of the individual, to prevent stealthy encroachment
upon, or gradual depreciation of, the rights secured by them (State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373).
Since the proceeding is a drastic one, it is the general rule that statutes
authorizing searches and seizures or search warrants must be strictly
construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed.
[2d], 353; Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613).

III. The petitioner claims that the search warrant issued by the court is
illegal because it has been based upon the affidavit of agent Mariano G.
Almeda in whose oath he declared that he had no personal knowledge of the
facts which were to serve as a basis for the issuance of the warrant but that
he had knowledge thereof through mere information secured from a person
whom he considered reliable. To the question "What are your reasons for
applying for this search warrant", appearing in the affidavit, the agent
answered: "It has been reported to me by a person whom I consider to be
reliable that there are being kept in said premises, books, documents,
receipts, lists, chits, and other papers used by him in connection with his
activities as a money- lender, charging a usurious rate of interest, in violation
of the law" and in attesting the truth of his statements contained in the
affidavit, the said agent stated that he found them to be correct and true to the
best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the
bill of rights, provides that "The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to
be seized." Section 97 of General Orders, No. 58 provides that "A search
warrant shall not issue except for probable cause and upon application
supported by oath particularly describing the place to be searched and the
person or thing to be seized." It will be noted that both provisions require that
there be not only probable cause before the issuance of a search warrant but
that the search warrant must be based upon an application supported by oath
of the applicant and the witnesses he may produce. In its broadest sense, an
oath includes any form of attestation by which a party signifies that he is
bound in conscience to perform an act faithfully and truthfully; and it is
sometimes defined as an outward pledge given by the person taking it that his
attestation or promise is made under an immediate sense of his responsibility
to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In
re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphrey vs. State, 122 N. W., 19; Priest
vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111
So., 865). The oath required must refer to the truth of the facts within the
personal knowledge of the petitioner or his witnesses, because the purpose
thereof is to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of probable
cause (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 839; U.
S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test
of sufficiency of an affidavit to warrant issuance of a search warrant is
whether it has been drawn in such a manner that perjury could be charged
thereon and affiant be held liable for damages caused (State vs. Roosevelt
County 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the
Constitution prohibits unreasonable searches and seizures. Unreasonable
searches and seizures are a menace against which the constitutional
guaranties afford full protection. The term "unreasonable search and seizure"
is not defined in the Constitution or in General Orders, No. 58, and it is said to
have no fixed, absolute or unchangeable meaning, although the term has
been defined in general language. All illegal searches and seizures are
unreasonable while lawful ones are reasonable. What constitutes a
reasonable or unreasonable search or seizure in any particular case is purely
a judicial question, determinable from a consideration of the circumstances
involved, including the1) purpose of the search, 2) the presence or absence of
probable cause, 3) the manner in which the search and seizure was made, 4)
the place or thing searched, and 5) the character of the articles procured (Go-
Bart Importing Co. vs. U. S., 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d],
881; U. S. vs. Vatune, 292 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145;
Lambert vs. U. S., 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason
vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it
appears that the affidavit, which served as the exclusive basis of the search
warrant, is insufficient and fatally defective by reason of the manner in which
the oath was made, and therefore, it is hereby held that the search warrant in
question and the subsequent seizure of the books, documents and other
papers are illegal and do not in any way warrant the deprivation to which the
petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search
warrant be declared illegal and cancelled is that it was not supported by other
affidavits aside from that made by the applicant. In other words, it is
contended that the search warrant cannot be issued unless it be supported by
affidavits made by the applicant and the witnesses to be presented
necessarily by him. Section 1, paragraph 3, of Article III of the Constitution
provides that no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 98 of General
Orders, No. 58 provides that the judge or justice must, before issuing the
warrant, examine under oath the complainant and any witnesses he may
produce and take their depositions in writing. It is the practice in this
jurisdiction to attach the affidavit of at least the applicant or complainant to the
application. It is admitted that the judge who issued the search warrant in this
case, relied exclusively upon the affidavit made by agent Mariano G. Almeda
and that he did not require nor take the deposition of any other witness.
Neither the Constitution nor General Orders, No. 58 provides that it is of
imperative necessity to take the depositions of the witnesses to be presented
by the applicant or complainant in addition to the affidavit of the latter. The
purpose of both in requiring the presentation of depositions is nothing more
than to satisfy the committing magistrate of the existence of probable cause.
Therefore, if the affidavit of the applicant or complainant is sufficient, the judge
may dispense with that of other witnesses. Inasmuch as the affidavit of the
agent in this case was insufficient because his knowledge of the facts was not
personal but merely hearsay, it is the duty of the judge to require the affidavit
of one or more witnesses for the purpose of determining the existence of
probable cause to warrant the issuance of the search warrant. When the
affidavit of the applicant or complainant contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is satisfied that there
exists probable cause; when the applicant's knowledge of the facts is mere
hearsay, the affidavit of one or more witnesses having a personal knowledge
of the facts is necessary. We conclude, therefore, that the warrant issued is
likewise illegal because it was based only on the affidavit of the agent who
had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the
illegality of the search warrant and the cancellation thereof, the fact that it
authorized its execution at night. Section 101 of General Orders, No. 58
authorizes that the search be made at night when it is positively asserted in
the affidavit that the property is on the person or in the place ordered to be
searched. As we have declared the affidavit insufficient and the warrant
issued exclusively upon it illegal, our conclusion is that the contention is
equally well founded and that the search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his
contention that the warrant was issued illegally is the lack of an adequate
description of the books and documents to be seized. Section 1, paragraph 3,
of Article III of the Constitution, and section 97 of General Orders, No. 58
provide that the affidavit to be presented, which shall serve as the basis for
determining whether probable cause exists and whether the warrant should
be issued, must contain a particular description of the place to be searched
and the person or thing to be seized. These provisions are mandatory and
must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs.
Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.
Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605;
People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 415); but
where, by the nature of the goods to be seized, their description must be
rather general, it is not required that a technical description be given, as this
would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284;
People vs. Kahn, supra). The only description of the articles given in the
affidavit presented to the judge was as follows: "that there are being kept in
said premises books, documents, receipts, lists, chits and other papers used
by him in connection with his activities as money-lender, charging a usurious
rate of interest, in violation of the law." Taking into consideration the nature of
the articles so described, it is clear that no other more adequate and detailed
description could have been given, particularly because it is difficult to give a
particular description of the contents thereof. The description so made
substantially complies with the legal provisions because the officer of the law
who executed the warrant was thereby placed in a position enabling him to
identify the articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that
the search warrant was obtained illegally, is that the articles were seized in
order that the Anti-Usury Board might provide itself with evidence to be used
by it in the criminal case or cases which might be filed against him for violation
of the Anti-Usury Law. At the hearing of the incidents of the case raised
before the court, it clearly appeared that the books and documents had really
been seized to enable the Anti-Usury Board to conduct an investigation and
later use all or some of the articles in question as evidence against the
petitioner in the criminal cases that may be filed against him. The seizure of
books and documents by means of a search warrant, for the purpose of using
them as evidence in a criminal case against the person in whose possession
they were found, is unconstitutional because it makes the warrant
unreasonable, and it is equivalent to a violation of the constitutional provision
prohibiting the compulsion of an accused to testify against himself (Uy Kheytin
vs. Villareal , 42 Phil., 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U.
S., 299 Fed., 365; U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S., 116 U. S.,
616; Carroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least
nineteen of the documents in question were seized for the purpose of using
them as evidence against the petitioner in the criminal proceeding or
proceedings for violation of the Anti-Usury Law, which it is attempted to
institute against him, we hold that the search warrant issued is illegal and that
the documents should be returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot
now question the validity of the search warrant or the proceedings had
subsequent to the issuance thereof, because he has waived his constitutional
rights in proposing a compromise whereby he agreed to pay a fine of P200 for
the purpose of evading the criminal proceeding or proceedings. We are of the
opinion that there was no such waiver, first, because the petitioner has
emphatically denied the offer of compromise and, second, because if there
was a compromise it referred not to the search warrant and the incidents
thereof but to the institution of criminal proceedings for violation of the Anti-
Usury Law. The waiver would have been a good defense for the respondents
had the petitioner voluntarily consented to the search and seizure of the
articles in question, but such was not the case because the petitioner
protested from the beginning and stated his protest in writing in the insufficient
inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the
petitioner does not lie because he can appeal from the orders which
prejudiced him and are the subject matter of his petition. Section 222 of the
Code of Civil Procedure in fact provides that mandamus will not issue when
there is another plain, speedy and adequate remedy in the ordinary course of
law. We are of the opinion, however, that an appeal from said orders would
not in this case be a plain, speedy and adequate remedy for the petitioner
because a long time would have to elapse before he recovers possession of
the documents and before the rights, of which he has been unlawfully
deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs.
McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs.
McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58,
relative to search and seizure, should be given a liberal construction in favor
of the individual in order to maintain the constitutional guaranties whole and in
their full force;
2. That since the provisions in question are drastic in their form and
fundamentally restrict the enjoyment of the ownership, possession and use of
the personal property of the individual, they should be strictly construed;
3. That the search and seizure made are illegal for the following
reasons: (a) Because the warrant was based solely upon the affidavit of the
petitioner who had no personal knowledge of the facts necessary to determine
the existence or non-existence of probable cause, and (b) because the
warrant was issued for the sole purpose of seizing evidence which would later
be used in the criminal proceedings that might be instituted against the
petitioner, for violation of the Anti- Usury Law;
4. That as the warrant had been issued unreasonably, and as it does
not appear positively in the affidavit that the articles were in the possession of
the petitioner and in the place indicated, neither could the search and seizure
be made at night;
5. That although it is not mandatory to present affidavits of witnesses to
corroborate the applicant or complainant in cases where the latter has
personal knowledge of the facts, when the applicant's or complainant's
knowledge of the facts is merely hearsay, it is the duty of the judge to require
 affidavits of other witnesses so that he may determine whether probable
cause exists;
6. That a detailed description of the person and place to be searched
and the articles to be seized is necessary, but where, by the nature of the
articles to be seized, their description must be rather general, it is not required
that a technical description be given, as this would mean that no warrant
could issue;
7. That the petitioner did not waive his constitutional rights because the
offer of compromise or settlement attributed to him, does not mean, if so
made, that he voluntarily tolerated the search and seizure; and
8. That an appeal from the orders questioned by the petitioner, if taken
by him, would not be an effective, speedy or adequate remedy in the ordinary
course of law, and, consequently, the petition for mandamus filed by him lies.
For the foregoing considerations, the search warrant and the seizure of
June 3, 1936, and the orders of the respondent court authorizing the retention
of the books and documents, are declared illegal and are set aside, and it is
ordered that the judge presiding over the Court of First Instance of Tayabas
direct the immediate return to the petitioner of the nineteen (19) documents
designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26, 27,
30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special
pronouncement as to costs. So ordered.
(Alvarez v. Court of First Instance of Tayabas, G.R. No. 45358, [January 29,
|||

1937], 64 PHIL 33-51)

Mata vs. Bayona [G.R. No. 50720, March 26, 1984]

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA, petitioner, vs. HON. JOSEPHINE K. BAYONA,

in her capacity as Presiding Judge of the City Court of Ormoc,
BERNARDO GOLES and REYNALDO MAYOTE, respondents.

Valeriano R. Ocubillo for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST

UNLAWFUL SEARCH AND SEIZURE; REQUISITES FOR ISSUANCE OF
SEARCH WARRANT. — Under the Constitution "no search warrant shall
issue but upon probable cause to be determined by the Judge or such other
responsible officer as may be authorized by law after examination under oath
or affirmation of the complainant and the witnesses he may produce". More
emphatic and detailed is the implementing rule of the constitutional injunction,
Section 4 of Rule 126 which provides that the judge must before issuing the
warrant personally examine on oath or affirmation the complainant and any
witnesses he may produce and take their depositions in writing, and attach
them to the record, in addition to any affidavits presented to him.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF
COMPLAINANT AND HIS WITNESSES IN THE CASE AT BAR. — Before
issuing a search warrant, the examining Judge has to take depositions in
writing of the complainant and the witnesses he may produce and to attach
them to the record. Such written deposition is necessary in order that the
Judge may be able to properly determine the existence or non-existence of
the probable cause, and to hold liable for perjury the person giving it if it will
be found later that his declarations are false. Mere affidavits of the
complainant and his witnesses are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO
RECORDS OF CASE IN CASE AT BAR. — The judge's insistence that she
examined the complainants under oath has become dubious by petitioner's
claim that at the particular time when he examined all the relevant papers
connected with the issuance of the questioned search warrant, after he
demanded the same from the lower court since they were not attached to the
records, he did not find any certification at the back of the joint affidavit of the
complainants. Before he filed his motion to quash the search warrant and for
the return of the articles seized, he was furnished, upon his request, certified
true copies of the said affidavits by the Clerk of Court but which certified true
copies do not bear any certification at the back. Petitioner likewise claims that
his xerox copy of the said joint affidavit obtained at the outset of this case
does not show also the certification of respondent judge. This doubt becomes
more confirmed by respondent Judge's own admission, while insisting that
she did examine thoroughly the applicants, that "she did not take the
deposition of Mayote and Goles because to have done so would be to hold a
judicial proceeding which will be open and public", such that, according to her,
the persons subject of the intended raid will just disappear and move his
illegal operations somewhere else. Could it be that the certification was made
belatedly to cure the defect of the warrant? Be that as it may, there
was no "deposition in writing" attached to the records of the case in palpable
disregard of the statutory prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching
questions propounded to the applicants of the search warrant and his
witnesses must depend to a large extent upon the discretion of the Judge just
 as long as the answers establish a reasonable ground to believe the
commission of a specific offense and that the applicant is one authorized by
law, and said answers particularly describe with certainty the place to be
searched and the persons or things to be seized. The examination or
investigation which must be under oath may not be in public. It may even be
held in the secrecy of his chambers. Far more important is that the
examination or investigation is not merely routinary but one that is thorough
and elicit the required information. To repeat, it must be under oath and must
be in writing.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT
BAR. — Nothing can justify the issuance of the search warrant but the
fulfillment of the legal requisites. Thus, in issuing a search warrant the Judge
must strictly comply with the requirements of the Constitution and the
statutory provisions. In the case at bar, the search warrant is tainted with
illegality by the failure of the Judge to conform with essential requisites of
taking the depositions in writing and attaching them to record, rendering the
search warrant invalid.
6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE
RETURNED; CASE AT BAR. — While the search warrant is illegal, the return
of the things seized cannot be ordered. In Castro vs. Pabalan (70 SCRA 478),
it was held that the illegality of the search warrant does not call for the return
of the things seized, the possession of which is prohibited.

DECISION

DE CASTRO, J : p

The validity of the search warrant issued by respondent Judge (not

reappointed) is challenged by petitioner for its alleged failure to comply with
the requisites of the Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by
respondent Judge was based merely on the application for search warrant
and a joint affidavit of private respondents which were wrongfully it is alleged
subscribed, and sworn to before the Clerk of Court of respondent Judge.
Furthermore, there was allegedly a failure on the part of respondent Judge to
attach the necessary papers pertinent to the issuance of the search warrant to
the records of Criminal Case No. 4298-CC wherein petitioner is accused
under PD 810, as amended by PD 1306, the information against him alleging
that Soriano Mata offered, took and arranged bets on the Jai Alai game by
"selling illegal tickets known as 'Masiao tickets' without any authority from the
Philippine Jai Alai & Amusement Corporation or from the government
authorities concerned." 1
Petitioner claims that during the hearing of the case, he discovered that
nowhere from the records of the said case could be found the search warrant
and other pertinent papers connected to the issuance of the same, so that he
had to inquire from the City Fiscal its whereabouts, and to which inquiry
respondent Judge replied, "it is with the court". The Judge then handed the
records to the Fiscal who attached them to the records. prcd

This led petitioner to file a motion to quash and annul the search
warrant and for the return of the articles seized, citing and invoking, among
others, Section 4 of Rule 126 of the Revised Rules of Court. The motion was
denied by respondent Judge on March 1, 1979, stating that the court has
made a thorough investigation and examination under oath of Bernardo U.
Goles and Reynaldo T. Mayote, members of the Intelligence Section of 352nd
PC Co./Police District II INP; that in fact the court made a certification to that
effect; and that the fact that documents relating to the search warrant were
not attached immediately to the record of the criminal case is of no moment,
considering that the rule does not specify when these documents are to be
attached to the records. 2 Petitioner's motion for reconsideration of the
aforesaid order having been denied, he came to this Court, with the instant
petition, praying, among others, that this Court declare the search warrant to
be invalid and all the articles confiscated under such warrant as inadmissible
as evidence in the case, or in any proceedings on the matter.
We hold that the search warrant is tainted with illegality for being
violative of the Constitution and the Rules of Court.
Under the Constitution "no search warrant shall issue but upon
probable cause to be determined by the Judge or such other responsible
officer as may be authorized by law after examination under oath or
affirmation of the complainant and the witnesses he may produce". More
emphatic and detailed is the implementing rule of the constitutional injunction,
Section 4 of Rule 126 which provides that the judge must before issuing the
warrant personally examine on oath or affirmation the complainant and any
witnesses he may produce and take their depositions in writing, and attach
them to the record, in addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing of the
complainant and the witnesses he may produce and to attach them to the
record. Such written deposition is necessary in order that the Judge may be
able to properly determine the existence or non-existence of the probable
cause, to hold liable for perjury the person giving it if it will be found later that
his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by
the failure of the Judge to conform with the essential requisites of taking the
depositions in writing and attaching them to the record, rendering the search
warrant invalid.cdll

The judge's insistence that she examined the complainants under oath
has become dubious by petitioner's claim that at the particular time when he
examined all the relevant papers connected with the issuance of the
questioned search warrant, after he demanded the same from the lower court
since they were not attached to the records, he did not find any certification at
the back of the joint affidavit of the complainants. As stated earlier, before he
filed his motion to quash the search warrant and for the return of the articles
seized, he was furnished, upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified true copies do not bear any
certification at the back. Petitioner likewise claims that his xerox copy of the
said joint affidavit obtained at the outset of this case does not show also the
certification of respondent judge. This doubt becomes more confirmed by
respondent Judge's own admission, while insisting that she did examine
thoroughly the applicants, that "she did not take the deposition of Mayote and
Goles because to have done so would be to hold a judicial proceeding which
will be open and public", 3 such that, according to her, the persons subject of
the intended raid will just disappear and move his illegal operations
somewhere else.
Could it be that the certification was made belatedly to cure the defect
of the warrant? Be that as it may, there was no "deposition in writing" attached
to the records of the case in palpable disregard of the statutory prohibition
heretofore quoted.
Respondent Judge impresses this Court that the urgency to stop the
illegal gambling that lures every man, woman and child, and even the lowliest
laborer who could hardly make both ends meet justifies her action. She claims
that in order to abate the proliferation of this illegal "masiao" lottery, she
thought it more prudent not to conduct the taking of deposition which is done
usually and publicly in the court room.
Two points must be made clear. The term "depositions" is sometimes
used in a broad sense to describe any written statement verified by oath; but
in its more technical and appropriate sense the meaning of the word is limited
to written testimony of a witness given in the course of a judicial proceeding in
advance of the trial or hearing upon oral examination. 4 A deposition is the
testimony of a witness, put or taken in writing, under oath or affirmation before
a commissioner, examiner or other judicial officer, in answer to interlocutory
and cross interlocutory, and usually subscribed by the witnesses. 5 The
searching questions propounded to the applicants of the search warrant and
his witnesses must depend to a large extent upon the discretion of the Judge
just as long as the answers establish a reasonable ground to believe the
commission of a specific offense and that the applicant is one authorized by
law, and said answers particularly describe with certainty the place to be
searched and the persons or things to be seized. The examination or
investigation which must be under oath may not be in public. It may even be
held in the secrecy of his chambers. Far more important is that the
examination or investigation is not merely routinary but one that is thorough
and elicit the required information. To repeat, it must be under oath and must
be in writing.
LexLib

The other point is that nothing can justify the issuance of the search
warrant but the fulfillment of the legal requisites. It might be well to point out
what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera:
"It has been said that of all the rights of a citizen, few are of greater
importance or more essential to his peace and happiness than the right
of personal security, and that involves the exemption of his private
affairs, books, and papers from inspection and scrutiny of others. While
the power to search and seize is necessary to the public welfare, still it
must be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of
government." 6
Thus, in issuing a search warrant the Judge must strictly comply with
the requirements of the Constitution and the statutory provisions. A liberal
construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the
Constitution. 7 No presumption of regularity are to be invoked in aid of the
process when an officer undertakes to justify it. 8
While We hold that the search warrant is illegal, the return of the things
seized cannot be ordered. In Castro vs. Pabalan, 9 it was held that the
illegality of the search warrant does not call for the return of the things seized,
the possession of which is prohibited.
WHEREFORE, the writ of certiorari is granted and the order of March 1,
1979 denying the motion to annul the search warrant as well as the order
of March 21, 1979 denying the motion for reconsideration are hereby
reversed, the search warrant, being declared herein as illegal.
Notwithstanding such illegality, the things seized under such warrant, such as
stock of "masiao" tickets; "masiao" issue tickets; bet money; control pad or
 "masiao" numbers; stamping pad with rubber stamp marked Ormoc City Jai-
Alai," cannot be returned as sought by petitioner. No costs.
SO ORDERED.
(Mata v. Bayona, G.R. No. 50720, [March 26, 1984], 213 PHIL 348-355)
|||

People vs. Del Rosario [G.R. No. 109633, July 20, 1994]

[G.R. No. 109633. July 20, 1994.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. NORMANDO DEL ROSARIO Y LOPEZ, accused-
appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; IN CASE AT BAR; FAILURE TO

PRESENT POSEUR-BUYER FATAL TO PROSECUTION'S CASE. — Foremost
among the inadequacies of the prosecution is its failure to call to the witness
stand PO1 Verando Luna, the alleged poseur-buyer. There is, thus, a total
absence of evidence to establish the purported sale of shabu by accused-
appellant to Venerando Luna, the supposed poseur-buyer. The omission to
present the poseur-buyer casts serious doubts that an illegal sale of a dangerous
drug actually took place. The trial court gave much weight to the testimonies of
the police members of the buy-bust operation. However, the prosecution did not
present as witness the supposed poseur-buyer. Such omission casts serious
doubt on appellant's guilt because without the testimony of the poseur-buyer,
there is not convincing evidence to show that appellant sold marijuana. The
testimonies of the rest of the buy-bust operation are hearsay in view of the fact
that the poseur-buyer was never presented at the trial. There was
even no testimony that when the accused-appellant handed the stuff to the
poseur-buyer that the latter in turn handed the marked money. The failure of the
prosecution to present the alleged buyer of the marijuana was a fatal flaw in the
case against the accused.(People vs. Fulgarillas, 212 SCRA 76, 80 [1992]) The
testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna,
the alleged poseur-buyer, bought shabu from accused-appellant was derived
solely from what Luna supposedly told him (pp. 19-20, tsn., December 11, 1991)
and, therefore, is patently hearsay evidence, without any evidentiary weight
whatsoever. Likewise, the statements of prosecution witnesses Policemen
Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the
alleged sale of shabu are hearsay, without weight, as all of them were not
present during the alleged sale.
 2. ID.; ID.; CREDIBILITY OF WITNESSES; IN CASE AT BAR,
PROSECUTION'S VERSION OF "BUY-BUST" OPERATION HIGHLY
INCREDIBLE. — According to the version of the prosecution, during the alleged
buy-bust operation, accused-appellant handed over to Veneracion Luna, the
alleged poseur-buyer, a quantity of shabu, and Luna in turn paid accused-
appellant a marked 100 bill and then returned to the police station and informed
the raiding team that he had already bought the shabu from accused-appellant.
Thereupon, the raiding team proceeded to the house of accused-appellant to
implement the search warrant. The version of the prosecution is highly incredible.
The record is devoid of any reason why the police officers did not make any
attempt to arrest accused-appellant at the time he allegedly sold the shabu to
Veneracion Luna who was accompanied by another police officer. That was the
opportune moment to arrest accused-appellant. The version foisted by the
prosecution upon this Court is contrary to human experience in the ordinary
course of human conduct. The usual procedure in a buy-bust operation is for the
police officers to arrest the pusher of drugs at the very moment he hands over
the dangerous drug to the poseur-buyer. That is the every reason why such a
police operation is called a "buy-bust" operation. The police poseur-buyer "buys"
dangerous drugs from the pusher and "bust" (arrests) him the moment the
pusher hands over the drug to the police officer.
3. ID.; ID.; WEIGHT AND SUFFICIENCY OF EVIDENCE; IN CASE AT
BAR, PRESUMPTION OF INNOCENCE IN FAVOR OF ACCUSED NOT
OVERTHROWN. — The manner the police officers conducted the subsequent
and much-delayed search is highly irregular. Upon barging into the residence of
accused-appellant, the police officers found him lying down and they immediately
arrested and detained him in the living room while they searched the other parts
of the house. Although they fetched two persons to witness the search, the
witnesses were called in only after the policemen had already entered accused-
appellant's residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the
policemen had more than ample time to plant the shabu. Corollary to the
constitutional precept that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved (Sec. 14(2), Article
III, Constitution of the Republic of the Philippines) is the rule that in order to
convict an accused the circumstances of the case must exclude all and each and
every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil.
463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144
SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that
accused-appellant is innocent.
4. ID.; CRIMINAL PROCEDURE; JUDGMENT; ACCUSED CANNOT BE
CONVICTED OF CRIME NOT CHARGED IN THE INFORMATION. — Accused-
appellant cannot be convicted of possession of the shabu contained in a canister
and allegedly seized at his house, for the charge against him was for selling
shabu with the information alleging that the "accused, without legal authority did
Hydrocholoride." Sale is totally different from possession. Article 1458 of the Civil
Code defines sale as a contract whereby "one of the contracting parties obligates
himself to transfer the ownership of and to deliver a determinate thing, and the
other to pay therefor a price certain in money or its equivalent", while
"possession is the holding of a thing or the enjoyment of a right" as defined by
Article 523 of the Civil Code. Accused-appellant cannot be convicted of a crime
which is not charged in the information for to do so would deny him the due
process of law (People vs. Despavellador, 2 SCRA 205 [1961]; People vs.
Mori, 55 SCRA 382 [1974]).
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; EXCLUSION IN EVIDENCE
OF ILLEGALLY SEIZED ARTICLES. — The search warrant implemented by the
raiding party authorized only the search and seizure of ".. the described quantity
of Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was
authorized to seize only shabu and paraphernalia for the use thereof
and no other. A search warrant is not a sweeping authority empowering a raiding
party to undertake a fishing expedition to seize and confiscate any and all kinds
of evidence or articles relating to a crime. The Constitution itself (Section 2,
Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that
the search warrant must particularly describe the things to be seized. Thus, the
search warrant was no authority for the police officers to seize the firearm which
was not mentioned, much less described with particularly, in the search warrant.
Neither may it be maintained that the gun was seized in the course of an arrest,
for as earlier observed, accused-appellant's arrest was far from regular and legal.
Said firearm, having been illegally seized, the same is not admissible in evidence
(Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains
the exclusion in evidence of illegally seized articles. Any evidence obtained in
violation of this or the preceding section shall be inadmissible for any purpose in
any proceeding.(Section 3 [2], Article III, Constitution of the Republic of the
Philippines).With the exclusion in evidence of the illegally seized firearm, there is,
therefore, a total absence of evidence to support the charge of illegal possession
of firearm, against accused-appellant. The same way may be said of the charge
of illegal possession of ammunition.

DECISION

MELO, J : p
 Normando del Rosario was charged before Branch 17 of the Regional Trial
Court of the Fourth Judicial Region stationed in Cavite City with Illegal
Possession of Firearm and Ammunitions in Criminal Case No. 236-91 and Illegal
Sale of Regulated Drugs in Criminal Case No. 237-91, under two informations
reading, respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite,
Republic of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without legal authority, did, then and
there, willfully, unlawfully, feloniously and knowingly have in his
possession and control a homemade (paltik) caliber 22 revolver with
three (3) live ammunition. cdrep

Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City of Cavite,
Republic of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without legal authority, did, then and
there, willfully, unlawfully, feloniously and knowingly sell to a poseur
buyer and aluminum foil containing Methamphetamine Hydrochloride
also known as "Shabu", a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)
Upon arraignment, accused-appellant pleaded not guilty to both charges,
and after joint trial of the two cases, the court a quo rendered a decision, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the
accused Normando del Rosario y Lopez guilty beyond reasonable doubt
in the above-entitled cases and he is hereby sentenced to undergo
imprisonment: in Crim. Case No. 236-91 for Violation of P.D. 1866 of
Seventeen (17) years, Four (4) months and One (1) day of reclusion
temporal, as minimum to Twenty (20) years of reclusion temporal, as
maximum and in Crim. Case No. 237-91 for a Violation of Section 15,
Article III of Republic Act 6425, as amended of life imprisonment and to
pay a fine of P30,000.00, without subsidiary imprisonment in case of
insolvency and to pay the costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia
are hereby ordered confiscated in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
 The prosecution's version of the case, as set forth in appellee's brief, is as
follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine
National Police (PNP) of Cavite City, Regional Trial Court Judge Arturo
de Guia issued in the morning of September 4, 1991 a search warrant
(Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the search and
seizure of an "undetermined quantity of Methamphetamine
Hydrocholoride commonly known as shabu and its paraphernalias" in
the premises of appellant's house located at 828 R. Basa St., San
Roque, Cavite City. However, the search warrant was not implemented
immediately due to the lack of police personnel to form the raiding team
(pp. 4, 7, tsn., Feb. 4, 1992).cdrep

At about 9 o'clock in the evening of that day, a raiding team was

finally organized. SPO3 Untiveros headed the raiding team with PO3
Rogelio Francisco, SPO1 Eduardo Novero, SPO3 Reynaldo de la Cruz,
PO1 Carlito Barbuco, PO3 Onrubio and SPO2 Villegas as members (pp.
5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it was
agreed upon that PO1 Venerando Luna will buy shabu from appellant
and after his return from appellant's house, the raiding team will
implement the search warrant (p. 10, tsn., Feb. 4, 1992; p. 17-18, tsn.,
Dec. 11, 1991). A marked money consisting of a P100 bill bearing
serial no. PQ 329406 (Exh. P, p. 51, Rec.) was given by the Station
Commander to PO1 Luna and entered in the police logbook (p. 12, Feb.
4, 1992). PO1 Luna with a companion proceeded to appellant's house to
implement the search warrant. Barangay Capt. Maigue,
Norma del Rosario and appellant witnessed the search at appellant's
house (p. 10, tsn., Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco
found a black canister containing shabu, an aluminum foil, plastik .22
caliber (Exh. O) atop the TV set, three used ammunition in a cup and
three wallets (Exhs. Q, R, S), one containing the marked money (Exh. P;
pp. 11-12, tsn., Dec. 11, 1991). SPO1 Novero found inside a show box
aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992). SPO3
de la Cruz turned over the wallet containing the marked money to PO3
Onrubio (p. 8, tsn., Jan. 7, 1992). The seized items were photographed
thereat by Fred Agana and then turned over to PO3 Onrubio (pp. 8, 32,
tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs. V, V-1, pp.
53-54, Rc.) for the seized items with Barangay Capt. Maigue and
appellant's sister Norma as signing witnesses. He also made a return
(Exh. U, p. 52, Rec.) of the seized items to the court (pp. 11-155, tsn.,
Feb. 18, 1992).
At police station, the seized items were taped and initialed by
SPO3 de la Cruz (p. 33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil,
through PO1 Barbuco, forwarded to NBI Forensic Chemist Mary Ann
 Aranas for laboratory analysis the aluminum foil (Exhs. A, J, pp. 37, 46,
Rec.) containing suspected shabu bought by PO1 Luna from appellant in
the buy-bus operation as well as the aluminum foils (Exhs. G, K, pp. 43,
47, Rec.) containing suspected marijuana which were confiscated by
virtue of the search warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all
the specimen submitted to her for laboratory analysis by SPO1 Pilapil,
thru PO1 Barbuco, gave positive results for Methamphetamine
Hydrocholoride (pp. 2-9, tsn., Dec. 3, 1991; Exh. B, C, H, I, pp. 38, 39,
44, 45, Rec.).
(pp. 102-105, Rollo.)
Carefully evaluation the evidence on record, we believe that the
prosecution has failed to prove the guilt of accused-appellant. Much is to be
desired in the manner the police authorities effected the arrest of accused-
appellant and the same observation may be made with regard to the way the
prosecution conducted its case. Cdpr

Foremost among the inadequacies of the prosecution is its failure to call to

the witness stand PO1 Verando Luna, the alleged poseur-buyer. There is, thus, a
total absence of evidence to establish the purported sale of shabu by accused-
appellant to Venerando Luna, the supposed poseur-buyer. The omission to
present the poseur-buyer casts serious doubts that an illegal sale of a dangerous
drug actually took place.
The trial court gave much weight to the testimonies of the police
members of the buy-bust operation. However, the prosecution did not
present as witness the supposed poseur-buyer. Such omission casts
serious doubt on appellant's guilt because without the testimony of the
poseur-buyer, there is not convincing evidence to show that appellant
sold marijuana. The testimonies of the rest of the buy-bust operation are
hearsay in view of the fact that the poseur-buyer was never presented at
the trial. There was even no testimony that when the accused-appellant
handed the stuff to the poseur-buyer that the latter in turn handed the
marked money. The failure of the prosecution to present the alleged
buyer of the marijuana was a fatal flaw in the case against the accused.
(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness PO3 Rogelio Francisco that
Veneracion Luna, the alleged poseur-buyer, bought shabu from accused-
appellant was derived solely from what Luna supposedly told him (pp. 19-20,
tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without
any evidentiary weight whatsoever. Likewise, the statements of prosecution
witnesses Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo
Novera, Jr. as to the alleged sale of shabu are hearsay, without weight, as all of
them were not present during the alleged sale.
According to the version of the prosecution, during the alleged buy-bust
operation, accused-appellant handed over to Veneracion Luna, the alleged
poseur-buyer, a quantity of shabu, and Luna in turn paid accused-appellant a
marked 100 bill and then returned to the police station and informed the raiding
team that he had already bought the shabu from accused-appellant. Thereupon,
the raiding team proceeded to the house of accused-appellant to implement the
search warrant. The version of the prosecution is highly incredible. The record is
devoid of any reason why the police officers did not make any attempt to arrest
accused-appellant at the time he allegedly sold the shabu to Veneracion Luna
who was accompanied by another police officer. That was the opportune moment
to arrest accused-appellant. The version foisted by the prosecution upon this
Court is contrary to human experience in the ordinary course of human conduct.
The usual procedure in a buy-bust operation is for the police officers to arrest the
pusher of drugs at the very moment he hands over the dangerous drug to the
poseur-buyer. That is the every reason why such a police operation is called a
"buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the
pusher and "bust" (arrests) him the moment the pusher hands over the drug to
the police officer.
We thus entertain serious doubts that the shabu contained in a small
canister was actually seized or confiscated at the residence of accused-
appellant. in consequence, the manner the police officers conducted the
subsequent and much-delayed search is highly irregular. Upon barging into the
residence of accused-appellant, the police officers found him lying down and they
immediately arrested and detained him in the living room while they searched the
other parts of the house. Although they fetched two persons to witness the
search, the witnesses were called in only after the policemen had already
entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991), and,
therefore, the policemen had more than ample time to plant the shabu. Corollary
to the constitutional precept that, in all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved (Sec. 14(2), Article III,
Constitution of the Republic of the Philippines) is the rule that in order to convict
an accused the circumstances of the case must exclude all and each and every
hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463
[1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA
516 [1986]). The facts of the case do not rule out the hypothesis that accused-
appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the
shabu contained in a canister and allegedly seized at his house, for the charge
against him was for selling shabu with the information alleging that the "accused,
without legal authority did . . . sell to a poseur buyer an aluminum foil containing
Methamphetamine Hydrocholoride . . .". Sale is totally different from
possession. Article 1458 of the Civil Code defines sale as a contract whereby
"one of the contracting parties obligates himself to transfer the ownership of and
to deliver a determinate thing, and the other to pay therefor a price certain in
money or its equivalent", while "possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-
appellant cannot be convicted of a crime which is not charged in the information
for to do so would deny him the due process of law (People vs. Despavellador, 2
SCRA 205 [1961]; People vs. Mori, 55 SCRA 382 [1974]). LLpr

Neither can accused-appellant be convicted of illegal possession of firearm

and ammunition. The search warrant implemented by the raiding party
authorized only the search and seizure of ". . . the described quantity of
Methamphetamine Hydrochloride commonly known as shabu and its
paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was
authorized to seize only shabu and paraphernalia for the use thereof
and no other. A search warrant is not a sweeping authority empowering a raiding
party to undertake a fishing expedition to seize and confiscate any and all kinds
of evidence or articles relating to a crime. The Constitution itself (Section 2,
Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that
the search warrant must particularly describe the things to be seized. Thus, the
search warrant was no authority for the police officers to seize the firearm which
was not mentioned, much less described with particularly, in the search warrant.
Neither may it be maintained that the gun was seized in the course of an arrest,
for as earlier observed, accused-appellant's arrest was far from regular and legal.
Said firearm, having been illegally seized, the same is not admissible in evidence
(Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains
the exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
(Section 3 [2], Article III, Constitution of the Republic of the
Philippines).
With the exclusion in evidence of the illegally seized firearm, there is,
therefore, a total absence of evidence to support the charge of illegal possession
of firearm, against accused-appellant. Cdpr

The same way may be said of the charge of illegal possession of

ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and
accused-appellant is hereby ACQUITTED in Criminal Case No. 236-91 and
Criminal Case No. 237-91.
 The immediate release of accused-appellant is hereby ordered unless
there exists of pending valid cause against him. Cdpr

The shabu, the marked P100 bill, firearm, and ammunition are hereby
ordered confiscated in favor of the government.
SO ORDERED.
(People v. Del Rosario y Lopez, G.R. No. 109633, [July 20, 1994], 304 PHIL
|||

418-428)
People vs. Gerente, G.R. No. 95847-48. March 10, 1993.
[G.R. No. 95847-48. March 10, 1993.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;

LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT
THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT
BAR. — The policemen arrested Gerente only some three (3) hours
after Gerente and his companions had killed Blace. They saw Blace dead in the
hospital and when they inspected the scene of the crime, they found the
instruments of death: a piece of wood and a concrete hollow block which the
killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes,
reported the happening to the policemen and pinpointed her neighbor, Gerente,
as one of the killers. Under those circumstances, since the policemen had
personal knowledge of the violent death of Blace and of facts indicating
that Gerente and two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had postponed his arrest until they could
obtain a warrant, he would have fled the law as his two companions did.
2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT
WHEN MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. — The
search conducted on Gerente's person was likewise lawful because it was made
as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of
the Revised Rules of Court which provides: "Section 12. Search incident to lawful
arrest. — A person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a
search warrant." The frisk and search of appellant's person upon his arrest was a
permissible precautionary measure of arresting officers to protect themselves, for
the person who is about to be arrested may be armed and might attack them
unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice
Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the
individual being arrested may be frisked for concealed weapons that may be
used against the arresting officer and all unlawful articles found his person, or
within his immediate control may be seized."
3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE;
CASE AT BAR. — There is no merit in appellant's allegation that the trial court
erred in convicting him of having conspired and cooperated with Fredo and Totoy
Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the
fracture on the back of the victim's skull could have been inflicted by one person
only. what Dr. Bernales stated was a mere possibility that only one person
dropped the concrete hollow block on the head of the victim, smashing it. That
circumstance, even if true, does not absolve the other two co-conspirators in the
murder of Blace for when there is a conspiracy to commit a crime, the act of one
conspirator is the act of all. The conspiracy was proven by the eyewitness-
testimony of Edna Edwina Reyes, that she overheard the appellant and his
companions conspire to kill Blace, that acting in concert, they attacked their
victim with a piece of wood and a hollow block and caused his death. "When
there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and his
testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587,
588). Hence, the trial court did not err in giving full credit to Edna Reyes'
testimony.
4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — The
Solicitor General correctly pointed out in the appellee's brief that the award of
P30,000.00 as civil indemnity for the death of Clarito Blace should be increased
to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643.

DECISION

GRIÑO-AQUINO, J : p

This is an appeal from the decision of the Regional Trial Court of

Valenzuela, Metro Manila, Branch 172, which found the appellant guilty of
Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972)
and sentenced him to suffer the penalty of imprisonment for a term of twelve
(12) years and one (1) day, as minimum, to twenty (20) years, as maximum;
and also found him guilty of Murder for which crime he was sentenced to
suffer the penalty of reclusion perpetua. The dispositive portion of the
appealed decision reads:
"WHEREFORE, in view of the foregoing the Court finds the
accused Gabriel Gerente in Criminal Case No. 10255-V-90 guilty beyond
reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby
sentences him to suffer the penalty of imprisonment of twelve years and
one day as minimum to twenty years as maximum, and a fine of twelve
thousand, without subsidiary imprisonment in case of insolvency, and to
pay the costs.
"In Criminal Case No. 10256-V-90, the Court finds the accused
Gabriel Gerente guilty beyond reasonable doubt of the crime of Murder,
and there by (sic) no aggravating circumstances nor mitigating
circumstances, is hereby sentenced to suffer the penalty of reclusion
perpetua; to indemnify the heirs of the victim in the sum of P30,000.00,
and in the amount of P17,609.00 as funeral expenses, without subsidiary
imprisonment in case of insolvency, and to pay the costs. The accused
Gabriel Gerente shall be credited with the full term of his preventive
imprisonment." (p. 25, Rollo.)
Appellant Gabriel Gerente y Bullo was charged with Violation of Section
8, Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90
of the Regional Trial Court of Valenzuela, Metro Manila. The Information
reads:
"That on or about the 30th day of April, 1990, in the municipality
of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, without justification,
did then and there wilfully, unlawfully and feloniously have in his
possession and control dried flowering tops wrapped in foil with
markings and place in a transparent plastic bag which are considered
prohibited drugs." (p. 2, Rollo.)
The same accused, together with Totoy and Fredo Echigoren who are
both at large, was charged with Murder in Criminal Case No. 10256-V-90 in
an information of the same date and signed by the same Assistant Provincial
Prosecutor, as follows: cdphil

"That on or about the 30th day of April, 1990, in the municipality

of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused together with two (2)
others who are still at large and against whom the preliminary
investigation has not yet been terminated by the Office of the Provincial
Prosecutor of Bulacan, conspiring, confederating together and mutually
helping one another, armed with a piece of wood and hallow (sic) block
and with intent to kill one Clarito B. Blace, did then and there wilfully,
unlawfully and feloniously, with evident premeditation and treachery,
 attack, assault and hit with the said piece of wood and hollow block the
said Clarito B. Blace, hitting the latter on the different parts of his body,
thereby inflicting serious physical injuries which directly caused the
death of the said victim." (p. 3, Rollo.)
Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990,
appellant Gabriel Gerente, together with Fredo Echigoren and Totoy
Echigoren, started drinking liquor and smoking marijuana in the house of the
appellant which is about six (6) meters away from the house of the
prosecution witness who was in her house on that day. She overheard the
three men talking about their intention to kill Clarito Blace. She testified that
she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace,"
and Totoy Echigoren allegedly seconded Fredo's suggestion saying:
"Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin
natin mamaya." (pp. 3-4, tsn, August 24, 1990.)
Fredo and Totoy Echigoren and Gerente carried out their plan to kill
Clarito Blace at about 2:00 p.m. of the same day. The prosecution witness,
Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren
struck the first blow against Clarito Blace, followed by Totoy Echigoren and
Gabriel Gerente who hit him twice with a piece of wood in the head and when
he fell, Totoy Echigoren dropped a hollow block on the victim's head.
Thereafter, the three men dragged Blace to a place behind the house
of Gerente.
At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the
Valenzuela Police Station received a report from the Palo Police Detachment
about a mauling incident. He went to the Valenzuela District Hospital where
the victim was brought. He was informed by the hospital officials that the
victim died on arrival. The cause of death was massive fracture of the skull
caused by a hard and heavy object. Right away, Patrolman Urrutia, together
with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to
Paseo de Blas where the mauling incident took place. There they found a
piece of wood with blood stains, a hollow block and two roaches of marijuana.
They were informed by the prosecution witness, Edna Edwina Reyes, that she
saw the killing and she pointed to Gabriel Gerente as one of the three men
who killed Clarito.
The policemen proceeded to the house of the appellant who was then
sleeping. They told him to come out of the house and they introduced
themselves as policemen. Patrolman Urrutia frisked appellant and found a
coin purse in his pocket which contained dried leaves wrapped in cigarette
foil. The dried leaves were sent to the National Bureau of Investigation for
examination. The Forensic Chemist found them to be marijuana. LexLib
 Only the appellant, Gabriel Gerente, was apprehended by the police.
The other suspects, Fredo and Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant

Provincial Prosecutor Benjamin Caraig against him for Violation of Section 8,
Art. II, of R.A. 6425, and for Murder.
When arraigned on May 16, 1990, the appellant pleaded not guilty to
both charges. A joint trial of the two cases was held. On September 24, 1990,
the trial court rendered a decision convicting him of Violation of Section 8
of R.A. 6425 and of Murder.
In this appeal of the appellant, the following errors are ascribed to the
trial court:
1. the court a quo gravely erred in admitting the marijuana leaves
adduced in evidence by the prosecution; and
2. the court a quo gravely erred in convicting the accused-appellant of
the crimes charged despite the absence of evidence required to prove
his guilt beyond reasonable doubt.
The appellant contends that the trial court erred in admitting the
marijuana leaves as evidence in violation of his constitutional right not to be
subjected to illegal search and seizure, for the dried marijuana leaves were
seized from him in the course of a warrantless arrest by the police officers.
We do not agree.
The search of appellant's person and the seizure of the marijuana
leaves in his possession were valid because they were incident to a lawful
warrantless arrest.
Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of
Court provide:
'SECTION 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a person:
"(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;"
"(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; . . .'
The policemen arrested Gerente only some three (3) hours
after Gerente and his companions had killed Blace. They saw Blace dead in
the hospital and when they inspected the scene of the crime, they found the
instruments of death: a piece of wood and a concrete hollow block which the
killers had used to bludgeon him to death. The eye-witness, Edna Edwina
Reyes, reported the happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under those circumstances, since the
policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had postponed his arrest until they
could obtain a warrant, he would have fled the law as his two companions
did.
prLL

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a
warrant was effected one (1) day after he had shot to death two Capcom
soldiers. The arrest was held lawful by this Court upon the rationale stated by
us in People vs. Malasugui, 63 Phil. 221, 228, thus:
"To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a warrant,
would be to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of criminals,
facilitating their escape in many instances."
The search conducted on Gerente's person was likewise lawful
because it was made as an incident to a valid arrest. This is in accordance
with Section 12, Rule 126 of the Revised Rules of Court which provides:
"SECTION 12. Search incident to lawful arrest. — A person
lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a
search warrant."
The frisk and search of appellant's person upon his arrest was a
permissible precautionary measure of arresting officers to protect themselves,
for the person who is about to be arrested may be armed and might attack
them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled
that "the individual being arrested may be frisked for concealed weapons that
may be used against the arresting officer and all unlawful articles found in his
person, or within his immediate control may be seized."
There is no merit in appellant's allegation that the trial court erred in
convicting him of having conspired and cooperated with Fredo and Totoy
Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the
fracture on the back of the victim's skull could have been inflicted by one
person only.
What Dr. Bernales stated was a mere possibility that only one person
dropped the concrete hollow block on the head of the victim, smashing it. That
circumstance, even if true, does not absolve the other two co-conspirators in
the murder of Blace for when there is a conspiracy to commit a crime, the act
 of one conspirator is the act of all. The conspiracy was proven by the
eyewitness-testimony of Edna Edwina Reyes, that she overheard the
appellant and his companions conspire to kill Blace, that acting in concert,
they attacked their victim with a piece of wood and a hollow block and caused
his death. "When there is no evidence indicating that the principal witness for
the prosecution was moved by improper motive, the presumption is that he
was not so moved and his testimony is entitled to full faith and credit"
(People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in
giving full credit to Edna Reyes' testimony. prcd

Appellant's failure to escape (because he was very drunk)

is no indicium of his innocence.
The Solicitor General correctly pointed out in the appellee's brief that
the award of P30,000.00 as civil indemnity for the death of Clarito Blace
should be increased to P50,000.00 in accordance with our ruling in People vs.
Sison, 189 SCRA 643.
WHEREFORE, the appealed decision is hereby AFFIRMED, with
modification of the civil indemnity awarded to the heirs of the victim, Clarito
Blace, which is hereby increased to P50,000.00.
SO ORDERED.
||| (People v. Gerente y Bullo, G.R. No. 95847-48, [March 10, 1993])

Umil vs. Ramos [G.R. No. 81567, July 9, 1990]

[G.R. No. 81567. July 9, 1990.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF

ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA.
MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V.
SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE
VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER
AGUIRRE, respondents.

[G.R. Nos. 84581-82. July 9, 1990.]

AMELIA ROQUE and WILFREDO

BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN.
RAMON MONTANO,respondents.

[G.R. Nos. 84583-84. July 9, 1990.]

 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO
T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON.
FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO
CARINO, LT. COL. REX D. PIAD, T/ SGT. CONRADO DE TORRES,
S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP
Detention Center, Camp Crame, Quezon City,respondents.

[G.R. No. 83162. July 9, 1990.]

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF

VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A.
OCAYA, petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE,
COL., HERCULES CATALUNA, COL. NESTOR
MARIANO,respondents.

[G.R. No. 85727. July 9, 1990.]

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF:

DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S.
LIM, COL. RICARDO REYES,respondents.

[G.R. No. 86332. July 9, 1990.]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF

NARCISO B. NAZARENO, ALFREDO
NAZARENO, petitioner, vs. THE STATION COMMANDER OF THE
MUNTINLUPA POLICE STATION, Muntinlupa, Metro Manila, P/SGT.
JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI
SOLEDAD, and P/SGT. MAURO AROJADO,respondents.

Efren H. Mercado for petitioners in G.R. No. 81567.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra Barbara Anne C. Migallos and Agripino G. Morga for
petitioners in G.R. Nos. 84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Associates for petitioner
in G.R. No. 85727.
Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
The Solicitor General for the respondents.

DECISION

PER CURIAM : p

These are eight (8) petitions for habeas corpus filed before the Court, which have
been consolidated because of the similarity of issues raised, praying for the
issuance of the writ of habeas corpus, ordering the respective respondents to
produce the bodies of the persons named therein and to explain why they should
not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of
the writ of habeas corpus is not available to the petitioners as they have
been legally arrested and are detained by virtue of valid informations filed in court
against them. LexLib

The petitioners counter that their detention is unlawful as their arrests were
made without warrant and, that no preliminary investigation was first conducted,
so that the informations filed against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective
pleadings, and it finds that the persons detained have not been illegally arrested
nor arbitrarily deprived of their constitutional right to liberty, and that the
circumstances attending these cases do not warrant their release on habeas
corpus.
The arrest of a person without a warrant of arrest or previous complaint is
recognized in law. The occasions or instances when such an arrest may be
effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as
amended, which provides:
"Sec. 5. Arrest without warrant; when lawful.— A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit en offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
 temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7."
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of
Rule 113 of the Rules of Court, as amended, is justified when the person
arrested is caught in flagranti delicto, viz.,in the act of committing an offense; or
when an offense has just been committed and the person making the arrest has
personal knowledge of the facts indicating that the person arrested has
committed it. The rationale behind lawful arrests, without warrant, was stated by
this Court in the case of People vs. Kagui Malasugui 1 thus:
"To hold that no criminal can, in any case, be arrested and searched for
the evidence and tokens of his crime without a warrant, would be to
leave society, to a large extent, at the mercy of the shrewdest, the most
expert, and the most depraved of criminals, facilitating their escape in
many instances."
The record of the instant cases would show that the persons in whose behalf
these petitions for habeas corpus have been filed, had freshly committed or were
actually committing an offense, when apprehended, so that their arrests without a
warrant were clearly justified, and that they are, further, detained by virtue of
valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8)
petitions is in order.
I
In G.R. No. 81567 (Umil vs. Ramos),the record shows that, on 1 February 1988,
the Regional Intelligence Operations Unit of the Capital Command (RIOU-
CAPCOM) received confidential information about a member of the NPA
Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St.
Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was
found that the wounded person, who was listed in the hospital records as Ronnie
Javelon, is actually Rolando Dural, a member of the NPA liquidation squad,
responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31
January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of
this verification, Rolando Dural was transferred to the Regional Medical Services
of the CAPCOM, for security reasons. While confined thereat, or on 4 February
1988, Rolando Dural was positively identified by eyewitnesses as the gunman
who went on top of the hood of the CAPCOM mobile patrol car, and fired at the
two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon
and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to
the Caloocan City Fiscal who conducted an inquest and thereafter filed with the
Regional Trial Court of Caloocan City an information charging Rolando
Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon
Agents of Persons in Authority." The case was docketed therein as Criminal
Case No. C-30112 and no bail was recommended. On 15 February 1988, the
information was amended to include, as defendant, Bernardo Itucal, Jr. who, at
the filing of the original information, was still unidentified.
cdphil

Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this
Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The
Court issued the writ of habeas corpus on 9 February 1988 and the respondents
filed a Return of the Writ on 12 February 1988. Thereafter, the parties were
heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail
before the Regional Trial Court of Pasay City where charges for violation of the
Anti-Subversion Act had been filed against them, and they were accordingly
released. The petition for habeas corpus, insofar as Umil and Villanueva are
concerned, is now moot and academic and is accordingly dismissed, since the
writ of habeas corpus does not lie in favor of an accused in a criminal case who
has been released on bail. 2
As to Rolando Dural,it clearly appears that he was not arrested while in the act of
shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just
after the commission of the said offense for his arrest came a day after the said
shooting incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples
Army (NPA),an outlawed subversive organization. Subversion being a continuing
offense, the arrest of Rolando Dural without warrant is justified as it can be said
that he was committing an offense when arrested. The crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in connection therewith constitute
direct assaults against the State and are in the nature of continuing crimes.As
stated by the Court in an earlier case:
"From the facts as above-narrated, the claim of the petitioners that they
were initially arrested illegally is, therefore, without basis in law and in
fact. The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses
committed in the furtherance, on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation No.
 2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside from their essentially involving a
massive conspiracy of nationwide magnitude. Clearly then, the arrest of
the herein detainees was well within the bounds of the law and existing
jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting

armed elements, or for committing non-violent acts but in furtherance of
the rebellion, is more an act of capturing them in the course of an armed
conflict, to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest, therefore,
need not follow the usual procedure in the prosecution of offenses which
requires the determination by a judge of the existence of probable cause
before the issuance of a judicial warrant of arrest and the granting of bail
if the offense is bailable. Obviously, the absence of a judicial warrant
is no legal impediment to arresting or capturing persons committing overt
acts of violence against government forces, or any other milder acts but
equally in pursuance of the rebellious movement. The arrest or capture
is thus impelled by the exigencies of the situation that involves the very
survival of society and its government and duly constituted authorities. If
killing and other acts of violence against the rebels find justification in the
exigencies of armed hostilities which is of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely
seizing their persons and detaining them while any of these
contingencies continue cannot be less justified. ..." 3
The record, moreover, shows that the criminal case filed against Rolando
Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court
below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and
Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly.
Rolando Dural is now serving the sentence imposed upon him by the trial court.
Thus, the writ of habeas corpus is no longer available to him. For, as held in the
early case of U.S. vs. Wilson: 4
"In this case, whatever may be said about the manner of his arrest, the
fact remains that the defendant was actually in court in the custody of
the law on March 29, when a complaint sufficient in form and substance
was read to him. To this he pleaded not guilty. The trial followed, in
which, and in the judgment of guilty pronounced by the court, we
find no error. Whether, if there were irregularities in bringing him
personally before the court, he could have been released on a writ
of habeas corpus or now has a civil action for damages against the
person who arrested him we need not inquire. It is enough to say that
such irregularities are not sufficient to set aside a valid judgment
rendered upon a sufficient complaint and after a trial free from error."
 II
In G.R. Nos. 84581-82 (Roque vs. De Villa),the arrest of Amelia
Roque and Wilfredo Buenaobra, without warrant, is also justified. When
apprehended at the house of Renato Constantino in Marikina Heights, Marikina,
Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he
had with him letters to Renato Constantino and other members of the rebel
group. Amelia Roque, upon the other hand, was a member of the National United
Front Commission, in charge of finance, and admitted ownership of subversive
documents found in the house of her sister in Caloocan City. She was also in
possession of ammunition and a fragmentation grenade for which she
had no permit or authority to possess.LLpr

The record of these two (2) cases shows that on 27 June 1988, one
Rogelio Ramos y Ibanes, a member of the NPA, who had surrendered to the
military authorities, told military agents about the operations of the Communist
Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro
Manila. He identified some of his former comrades as "Ka Mong",a staff member
of the Communications and Transportation Bureau; "Ka Nelia" a staff member in
charge of finance; "Ka Miller",an NPA courier from Sorsogon and Lopez,
Quezon; "Ka Ted",and "Ka Totoy".He also pointed to a certain house occupied
by Renato Constantino located in the Villaluz Compound, Molave St.,Marikina
Heights, Marikina, Metro Manila, which is used as a safehouse of the National
United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by
Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the
house was conducted at about 5:00 o'clock in the afternoon, by a combined team
of the Criminal Investigation Service, National Capital District (CIS-NCD) and the
Constabulary Security Group (CSG).In the course of the search, the following
articles were found and taken under proper receipt:
a) One (1 ) Colt M1 6A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK 8 SN: 260577 &
2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transceiver SN: 14903
g) One (1) Regulated power supply 220V AC;
 h) One (1) Antennae (adjustable);
i) One (1 ) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constantino could not produce any permit or authority
to possess the firearms, ammunition, radio and other communications
equipment. Hence, he was brought to the CIS Headquarters for investigation.
When questioned, he refused to give a written statement, although
he admitted that he was a staff member of the executive committee of the NUFC
and a ranking member of the International Department of the Communist Party of
the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988),Wilfredo
Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound.
When accosted, he readily admitted to the military agents that he is a regular
member of the CPP/NPA and that he went to the place to deliver letters to "Ka
Mong",referring to Renato Constantino, and other members of the rebel group.
On further questioning, he also admitted that he is known as "Ka Miller" and that
he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from
him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated
August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated
August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic",dated August 11,
1988.
Also found in Buenaobra's possession was a piece of paper containing a written
but jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias
"Ka Nelia",at 69 Geronimo St.,Caloocan City. Acting on the lead provided as to
the whereabouts of Amelia Roque, the military agents went to the given address
the next day (13 August 1988).They arrived at the place at about 11:00 o'clock in
the morning. After identifying themselves as military agents and after seeking
permission to search the place, which was granted, the military agents conducted
a search in the presence of the occupants of the house and the barangay captain
of the place, one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP.
They found ledgers, journals, vouchers, bank deposit books, folders, computer
diskettes, and subversive documents as well as live ammunition for a .38 SPL
Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live
ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia
Roque and the other occupants of the house were brought to the PC-CIS
Headquarters at Camp Crame, Quezon City, for investigation. Amelia
Roque admitted to the investigators that the voluminous documents belonged to
her and that the other occupants of the house had no knowledge of them. As a
result, the said other occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for
inquest after which an information charging her with violation of PD 1866 was
filed with the Regional Trial Court of Caloocan City. The case is docketed therein
as Criminal Case No. C-1196. Another information for violation of the Anti-
Subversion Act was filed against Amelia Roque before the Metropolitan Trial
Court of Caloocan City, which is docketed therein as Criminal Case No. C-
150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The
case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on
behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case,
however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP
Stockade at Camp Crame, Quezon City. Accordingly, the petition for habeas
corpus filed on his behalf is now moot and academic. Only the petition of Amelia
Roque remains for resolution. LLjur

The contention of respondents that petitioners Roque and Buenaobra are officers
and or members of the National United Front Commission (NUFC) of the CPP
was not controverted or traversed by said petitioners. The contention must be
deemed admitted. 5 As officers and/ or members of the NUFC-CPP, their arrest,
without warrant, was justified for the same reasons earlier stated vis-a-
vis Rolando Dural.The arrest without warrant of Roque was additionally justified
as she was, at the time of apprehension, in possession of ammunitions without
license to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos),the arrest of Domingo
Anonuevo and Ramon Casiple, without warrant, is also justified under the rules.
Both are admittedly members of the standing committee of the NUFC and, when
apprehended in the house of Renato Constantino, they had a bag containing
subversive materials, and both carried firearms and ammunition for which they
had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening
of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the
house of Renato Constantino at Marikina Heights, Marikina, which was still under
surveillance by military agents. The military agents noticed bulging objects on
their waist lines. When frisked, the agents found them to be loaded guns.
Anonuevo and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any. Hence, they
were brought to PC Headquarters for investigation. Found in their possession
were the following articles:

a) Voluminous subversive documents

b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1)
magazine for Cal. 7.65 containing ten (10) live ammunition of same
caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with
one (1) magazine containing five (5) live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "KaTed",and Ramon
Casiple as "Ka Totoy" of the CPP, by their comrades who had previously
surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary
evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who
conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were
charged with violation of Presidential Decree No. 1866 before the Regional Trial
Court of Pasig, Metro Manila. The cases are docketed therein as Criminal
Cases Nos. 74386 and 74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on
behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said
Anonuevo and Casiple were unlawfully arrested without a warrant and that the
informations filed against them are null and void for having been filed without
prior hearing and preliminary investigation. On 30 August 1988, the Court issued
the writ of habeas corpus, and after the respondents had filed a Return of the
Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested
because there was no previous warrant of arrest, is without merit. The record
shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed
firearms and ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them
are null and void for want of a preliminary investigation. The filing of an
information, without a preliminary investigation having been first conducted, is
sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended,
reads:
 "Sec. 7. When accused lawfully arrested without a warrant.— When a
person is lawfully arrested without a warrant for an offense cognizable by
the Regional Trial Court the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended
party or arresting officer or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance
of a lawyer and in case of non-availability of a lawyer, a responsible
person of his choice. Notwithstanding such waiver, he may apply for bail
as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation
having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule."
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to
sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended. In the informations filed against them, the prosecutor made identical
certifications, as follows:
"This is to certify that the accused has been charged in accordance with
Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure,
that no preliminary investigation was conducted because the accused
has not made and signed a waiver of the provisions of Art. 125 of the
Revised Penal Code, as amended; that based on the evidence
presented, there is reasonable ground to believe that the crime has been
committed, and that the accused is probably guilty thereof."
Nor did petitioners ask for a preliminary investigation after the informations had
been filed against them in court. Petitioners cannot now claim that they have
been deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre),the arrest without warrant, of Vicky
Ocaya is justified under the Rules, since she had with her an unlicensed
ammunition when she was arrested. The record of this case shows that on 12
May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP
Command, armed with a search warrant issued by Judge Eutropio Migrino of the
Regional Trial Court of Pasig, Metro Manila, conducted a search of a house
located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila,
believed to be occupied by Benito Tiamson, head of the CPP-NPA. In the course
of the search, Vicky Ocaya armed in a car driven by Danny Rivera. Subversive
documents and several rounds of ammunition for a .45 cal. pistol were found in
the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought
to the PC Headquarters for investigation. When Vicky Ocaya could not produce
any permit or authorization to possess the ammunition, an information charging
her with violation of PD 1866 was filed with the Regional Trial Court of Pasig,
Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny
Rivera, on the other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf
of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was
illegally arrested and detained, and denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so
that her arrest without a warrant is justified. No preliminary investigation was
conducted because she was arrested without a warrant and she refused to waive
the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule
112 of the Rules of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia
Roque claim that the firearms, ammunition and subversive documents alleged to
have been found in their possession when they were arrested, did not belong to
them, but were "planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their
aforesaid claim. On the other hand, no evil motive or ill-will on the part of the
arresting officers that would cause the said arresting officers in these cases to
accuse the petitioners falsely, has been shown. Besides, the arresting officers in
these cases do not appear to be seekers of glory and bounty hunters for, as
counsel for the petitioners Anonuevo and Casiple say, "there is absolutely
nothing in the evidence submitted during the inquest that petitioners are on the
'AFP Order of Battle with a reward of P15,000.00 on each on their heads.' " 6 On
the other hand, as pointed out by the Solicitor General, the arrest of the
petitioners is not a product of a witch hunt or a fishing expedition, but the result of
an in-depth surveillance of NPA safehouses pointed to by no less than former
comrades of the petitioners in the rebel movement. LexLib

The Solicitor General, in his Consolidated Memorandum, aptly observes:

"...To reiterate, the focal point in the case of petitioners Roque,
Buenaobra, Anonuevo and Casiple, was the lawful search and seizure
conducted by the military at the residence of Renato Constantino at
Villaluz Compound, Molave St.,Marikina Heights, Marikina, Metro
Manila. The raid at Constantino's residence, was not a witch hunting or
fishing expedition on the part of the military. It was a result of an in-depth
military surveillance coupled with the leads provided by former members
of the underground subversive organizations. That raid produced
positive results. To date, nobody has disputed the fact that the residence
of Constantino when raided yielded communication equipment, firearms
and ammunitions, as well as subversive documents.
The military agents working on the information provided by Constantino
that other members of his group were coming to his place, reasonably
conducted a 'stake-out' operation whereby some members of the raiding
team were left behind the place. True enough, barely two hours after the
raid and Constantino's arrest, petitioner Buenaobra arrived at
Constantino's residence. He acted suspiciously and when frisked and
searched by the military authorities, found in his person were letters.
They are no ordinary letters, as even a cursory reading would show. Not
only that, Buenaobra admitted that he is a NPA courier and was there to
deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of Constantino
and Buenaobra, petitioners Anonuevo and Casiple arrived at
Constantino's place. Would it be unreasonable for the military agents to
believe that petitioners Anonuevo and Casiple are among those
expected to visit Constantino's residence considering that Constantino's
information was true, in that Buenaobra did come to that place? Was it
unreasonable under the circumstances, on the part of the military
agents, not to frisk and search anyone who should visit the residence of
Constantino, such as petitioners Anonuevo and Casiple? Must this
Honorable Court yield to Anonuevo and Casiple's flimsy and bare
assertion that they went to visit Constantino, who was to leave for Saudi
Arabia on the day they were arrested thereat?.
As to petitioner Roque, was it unreasonable for the military authorities to
effect her arrest without warrant considering that it was Buenaobra who
provided the leads on her identity? It cannot be denied that Buenaobra
had connection with Roque. Because the former has the
phone number of the latter. Why the necessity of jumbling Roque's
telephone number as written on a piece of paper taken from
Buenaobra's possession? Petitioners Roque and Buenaobra have not
offered any plausible reason so far.

In all the above incidents, respondents maintain that they acted

reasonably, under the time, place and circumstances of the events in
question, especially considering that at the time of petitioners' arrest,
incriminatory evidence, i.e, firearms, ammunitions and/or subversive
documents were found in their possession.
 Petitioners, when arrested, were neither taking their snacks nor
innocently visiting a camp, but were arrested in such time, place and
circumstances, from which one can reasonably conclude that they were
up to a sinister plot, involving utmost secrecy and comprehensive
conspiracy.".
VI
In G.R. No. 85727 (Espiritu vs. Lim),the release on habeas corpus of the
petitioner Deogracias Espiritu, who is detained by virtue of an Information for
Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with
the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of
the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON),an
association of drivers and operators of public service vehicles in the Philippines,
organized for their mutual aid and protection.cdll

Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988,
while he was sleeping in his home located at 363 Valencia St.,Sta. Mesa, Manila,
he was awakened by his sister Maria Paz Lalic who told him that a group of
persons wanted to hire his jeepney. When he went down to talk to them, he was
immediately put under arrest. When he asked for the warrant of arrest arrest, the
men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their
owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to
accompany him, but the men did not accede to his request and hurriedly sped
away.
He was brought to Police Station No. 8 of the Western Police District at
Blumentritt, Manila where he was interrogated and detained. Then, at about 9:00
o'clock of the same morning, he was brought before the respondent Lim and,
there and then, the said respondent ordered his arrest and detention. He was
thereafter brought to the General Assignment Section, Investigation Division of
the Western Police District under Police Capt. Cresenciano A. Cabasal where he
was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified in
view of the Information filed against him before the Regional Trial Court of
Manila, docketed therein as Criminal Case No. 88-683-85, charging him with
violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a
judicial warrant of arrest since petitioner when arrested had in fact just committed
an offense in that in the afternoon of 22 November 1988, during a press
conference at the National Press Club.
 "Deogracias Espiritu through tri-media was heard urging all drivers and
operators to go on nationwide strike on November 23, 1988, to force the
government to give in to their demands to lower the prices of spare
parts, commodities, water and the immediate release from detention of
the president of the PISTON (Pinag-isang Samahan ng Tsuper
Operators Nationwide).Further, we heard Deogracias Espiritu taking the
place of PISTON president Medardo Roda and also announced the
formation of the Alliance Drivers Association to go on nationwide strike
on November 23, 1988." 8
Policemen waited for petitioner outside the National Press Club in order to
investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock
that afternoon at a gathering of drivers and sympathizers at the corner of Magsaysay Blvd. and Valencia
Street, Sta. Mesa, Manila where he was heard to say:

"Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali
sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory
ang gusto nating pagbaba ng halaga ng spare parts, bilihin at ang
pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo
na." 10 (emphasis supplied).
The police finally caught up with the petitioner on 23 November 1988. He was
invited for questioning and brought to police headquarters after which an
Information for violation of Art. 142 of the Revised Penal Code was filed against
him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the
provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is
detained by virtue of a valid information filed with the competent court, he may
not be released on habeas corpus. He may, however be released upon posting
bail as recommended. However, we find the amount of the recommended bail
(P60,000.00) excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander),we also find no merit in
the submission of Narciso Nazareno that he was illegally arrested and is
unlawfully detained. The record of this case shows that at about 8:30 o'clock in
the morning of 14 December 1988, one Romulo Bunye II was killed by a group of
men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinlupa,
Metro Manila. One of the suspects in the killing was Ramil Regala who was
arrested by the police on 28 December 1988. Upon questioning, Regala pointed
to Narciso Nazareno as one of his companions in the killing of the said Romulo
Bunye II. In view thereof, the police officers, without warrant, picked up Narciso
Nazareno and brought him to the police headquarters for questioning. Obviously,
the evidence of petitioner's guilt is strong because on 3 January 1989, an
information charging Narciso Nazareno, Ramil Regala, and two (2) others, with
the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati,
Metro Manila. The case is docketed therein as Criminal Case No. 731. cdphil

On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion
was denied by the trial court in an order dated 10 January 1989, even as the
motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was
granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of
habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of
Biñan, Laguna, Branch 24, ordering said court to hear the case on 30 January
1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of
the Regional Trial Court of Biñan, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody
of the respondents by reason of an information filed against him with the
Regional Trial Court of Makati, Metro Manila which had taken cognizance of said
case and had, in fact, denied the motion for bail filed by said Narciso Nazareno
(presumably because of the strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna
are based upon the facts and the law. Consequently, we will not disturb the
same. Evidently, the arrest of Nazareno was effected by the police without
warrant pursuant to Sec. 5 (b),Rule 113, Rules of Court after he was positively
implicated by his co-accused Ramil Regala in the killing of Romulo Bunye II; and
after investigation by the police authorities. As held in People vs. Ancheta: 12
"The obligation of an agent of authority to make an arrest by reason of a
crime, does not presuppose as a necessary requisite for the fulfillment
thereof, the indubitable existence of a crime. For the detention to be
perfectly legal, it is sufficient that the agent or person in authority making
the arrest has reasonably sufficient grounds to believe the existence of
an act having the characteristics of a crime and that the same grounds
exist to believe that the person sought to be detained participated
therein."
VIII
It is to be noted that, in all the petitions here considered, criminal charges have
been filed in the proper courts against the petitioners. The rule is, that if a person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge, and that the court or judge had jurisdiction to issue
the process or make the order, or if such person is charged before any court, the
writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as
amended is quite explicit in providing that:
 "Sec. 4. When writ is not allowed or discharge authorized.- If it appears
that the person alleged to be restrained of his liberty is in the custody of
an officer under process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction appears after the writ is
allowed, the person shall not be discharged by reason of any informality
or defect in the process, judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a person charged with or
convicted of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment." (emphasis supplied)
At this point, we refer to petitioners' plea for the Court to re-examine and,
thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of
habeas corpus is no longer available after an information is filed against the
person detained and a warrant of arrest or an order of commitment is issued by
the court where said information has been filed. 14 The petitioners claim that the
said ruling, which was handed down during the past dictatorial regime to enforce
and strengthen said regime, has no place under the present democratic
dispensation and collides with the basic, fundamental, and constitutional rights of
the people. Petitioners point out that the said doctrine makes possible the arrest
and detention of innocent persons despite lack of evidence against them, and,
most often, it is only after a petition for habeas corpus is filed before the court
that the military authorities file the criminal information in the courts of law to be
able to hide behind the protective mantle of the said doctrine. This, petitioners
assert, stands as an obstacle to the freedom and liberty of the people and
permits lawless and arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is based

upon express provision of the Rules of Court and the exigencies served by the
law. The fears expressed by the petitioners are not really unremediable. As the
Court sees it, re-examination or reappraisal, with a view to its abandonment, of
the Ilagan case doctrine is not the answer. The answer and the better practice
would be, not to limit the function of habeas corpus to a mere inquiry as to
whether or not the court which issued the process, judgment or order of
commitment or before whom the detained person is charged, had jurisdiction or
not to issue the process, judgment or order or to take cognizance of the case, but
rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for
habeas corpus the court must inquire into every phase and aspect of petitioner's
detention — from the moment petitioner was taken into custody up to the
moment the court passes upon the merits of the petition;" and "only after such a
scrutiny can the court satisfy itself that the due process clause of
our Constitution has in fact been satisfied." This is exactly what the Court has
done in the petitions at bar. This is what should henceforth be done in all future
cases of habeas corpus. In short, all cases involving deprivation of individual
liberty should be promptly brought to the courts for their immediate scrutiny and
disposition.LLpr

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim),the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.
(Umil v. Ramos, G.R. No. 81567, 84581-82, 84583-84, 83162, 85727, 86332,
|||

[July 9, 1990], 265 PHIL 325-365)

People vs. Sucro [G.R. No. 93239, March 18, 1991]

[G.R. No. 93239. March 18, 1991.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. EDISON SUCRO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Fidencio S.Raz accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT A

WARRANT; WHEN LAWFUL. — Section 5, Rule 113 of the Rules on Criminal
Procedure provides for the instances where arrest without warrant is considered
lawful. The rules states: "Arrest without warrant, when lawful.— A peace officer
or private person may, without warrant, arrest a person: (a) When in his
presence, the person to be arrested has committed,is actually committing, or is
attempting to commit an offense; (b) When an offense has in fact just been
committed, and he has personal knowledge of facts indicating that the person to
be arrested has committed it."
2. ID.;ID.;ID.;AN OFFENSE COMMITTED IN THE PRESENCE OR WITHIN THE
VIEW OF AN OFFICER, CONSTRUED. — An offense is committed in the
presence or within the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the officer sees the offense,
although at a distance, or hears the disturbances created thereby and proceeds
at once to the scene thereof (U.S. v.Fortaleza, 12 Phil. 472 [1909];and
U.S. v.Samonte, 16 Phil. 516 [1910]).
3. ID.;ID.;ID.;PERSONAL KNOWLEDGE OF ACTUAL COMMISSION OF
CRIME. — The court earlier indicated in the case of People v. Bati (G.R. No.
87429, August 27, 1990) that police officers have personal knowledge of the
actual commission of the crime when it had earlier conducted surveillance
activities of the accused.
4. ID.;ID.;SEARCHES AND SEIZURES, AS A GENERAL RULE MUST BE
SUPPORTED BY A VALID WARRANT; EXCEPTION. — That searches and
seizures must be supported by a valid warrant is not an absolute rule (Manipon,
Jr. v.Sandiganbayan, 143 SCRA 267 [1986]).Among the exceptions granted by
law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules
on Criminal Procedure, which provides that a person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant. (People v.Castiller, G.R. No.
87783, August 6, 1990)
5. ID.;EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY
ENTITLED TO GREAT WEIGHT. — Time and again it has been held that the
findings of the trial court are entitled to great weight and should not be disturbed
on appeal unless it is shown that the trial court had overlooked certain facts of
weight and importance, it being acknowledged that the court below, having seen
and heard the witnesses during the trial, is in a better position to evaluate their
testimonies (People v.Umali, et al.,G.R. No. 84450, February
4, 1991 citing People v.Alvarez, 163 SCRA 745 [1988];People v.Dorado, 30
SCRA 53 [1969];and People v.Espejo, 36 SCRA 400 [1970]).
6. ID.;ID.;BURDEN OF PROOF AND PRESUMPTIONS; PRESUMPTION THAT
POLICE OFFICERS PERFORM THEIR DUTIES REGULARLY; APPLIED IN
CASE AT BAR. — There is nothing in the record to suggest that the police
officers were compelled by any motive than to accomplish their mission to
capture a drug pusher in the execution of the crime, the presumption being that
police officers perform their duties regularly in the absence of any evidence to the
contrary (Rule 131, Sec. 3(m),Revised Rules on
Evidence; People v.Castiller, supra citing People v.Natipravat, 145 SCRA 483
[1986]).
7. ID.;ID.;CREDIBILITY; ALIBI; UNAVAILING IN THE FACE OF POSITIVE
IDENTIFICATION. — In contrast to the evidence presented by the prosecution,
accused-appellant's defense is alibi which is unavailing considering that he was
positively identified by Macabante to be the person from whom he bought
marijuana.
8. ID.;ID.;WEIGHT AND SUFFICIENCY; MERE DENIALS CANNOT PREVAIL
OVER POSITIVE IDENTIFICATION. — It is well-settled that mere denials cannot
prevail against the positive identification of the appellant as the seller of the
prohibited substances. (People v.Khan, 161 SCRA 406
[1988];and People v.Paco, 170 SCRA 681 [1989]).

DECISION

GUTIERREZ, JR.,J : p

Edison Sucro was charged with and convicted of violation of Section 4, Article II
of the Dangerous Drugs Act, under an Information which reads:
"That on or about the 21st day of March, 1989, in the evening, in the
Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, acting as a pusher or broker in the business of
selling, administering, delivery, giving away to another and - or
distributing prohibited drugs, did then and there wilfully, unlawfully and
feloniously and without authority of law have in his possession and
control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea
bags of dried marijuana leaves which were confiscated from him by the
police authorities of Kalibo, Aklan, shortly after having sold one tea bag
of dried marijuana leaves to a customer." (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of
"not guilty" to the offense charged. Trial ensued and a judgment of conviction
was rendered, the pertinent portion of which reads:
"WHEREFORE, judgment is rendered finding the accused
Edison Sucro guilty of the sale of prohibited drug under Section 4, Article
II of the Dangerous Drug Act, as amended, and sentencing him to suffer
the penalty of life imprisonment, and pay a fine of P20,000, and costs.
He shall be entitled to full credit in the service of his sentence with the
period for which he has undergone preventive imprisonment to the date
of promulgation of this judgment. All the items of marijuana confiscated
in this case are declared forfeited in favor of the State." (Rollo, p. 41)
From the foregoing judgment of conviction, accused-appellant interposes this
appeal, assigning the following as errors allegedly committed by the court a
quo,to wit:
I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR
THE PROSECUTION EXHIBITS "E"-"E-4",TEA BAGS OF ALLEGED
MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE, THAT
THE SAME WERE TAKEN WITHOUT THE REQUIRED WARRANT OF
SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE
 ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS
ARREST.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED
EDISON SUCRO GUILTY OF THE SALE OF PROHIBITED DRUGS
UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT
AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE
IMPRISONMENT AND TO PAY A FINE OF P20,000.00. (Appellant's
Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as
follows:
"On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo,
Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander
of the INP Kalibo, Aklan) to monitor the activities of appellant
Edison Sucro, because of information gathered by Seraspi
that Sucro was selling marijuana. (p. 6, TSN, May 2, 1989).
As planned, at about 5:00 P.M. on said date, Pat. Fulgencio positioned
himself under the house of a certain Arlie Regalado at C. Quimpo Street.
Adjacent to the house of Regalado, about 2 meters away, was a chapel.
Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking
something which turned out later to be marijuana from the compartment
of a cart found inside the chapel, and then return to the street where he
handed the same to a buyer, Aldie Borromeo. After a while appellant
went back to the chapel and again came out with marijuana which he
gave to a group of persons. (pp. 6-8, 15-18, ibid).It was at this instance
that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going
on P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring
developments. At about 6:30 P.M.,Pat. Fulgencio again called up
Seraspi to report that a third buyer later identified as Ronnie Macabante,
was transacting with appellant. (pp. 18-19, ibid)
At that point, the team of P/Lt Seraspi proceeded to the area and while
the police officers were at the Youth Hostel at Maagma St., Pat.
Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/ Lt.
Seraspi and his team caught up with Macabante at the crossing of
Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon
seeing the police, Macabante threw something to the ground which
turned out to be a tea bag of marijuana. (pp 6-8, TSN, June 19, 1989)
When confronted, Macabante readily admitted that he bought the same
from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24,
1989) The police team was able to overtake and arrest appellant at the
corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks
and 4 teabags of marijuana from the cart inside the chapel and another
teabag from Macabante. The teabags of marijuana were sent to the PC-
 INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis.
The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all
found positive of marijuana. (pp. 4-7, TSN, Sept. 4, 1989)" (Appellee's
Brief, pp. 3-6)
As can be seen from the facts, the issue hinges mainly on whether or not the
arrest without warrant of the accused is lawful and consequently, whether or not
the evidence resulting from such arrest is admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest was illegal, being a violation of
his rights granted under Section 2, Article III of the 1987 Constitution. He
stresses that there was sufficient time for the police officers to apply for a search
and arrest warrants considering that Fulgencio informed his Station Commander
of the activities of the accused two days before March 21, 1989, the date of his
arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal Procedure provides for the
instances where arrest without warrant is considered lawful. The rule states:
"Arrest without warrant, when lawful.— A peace officer or private person
may, without warrant, arrest a person:

(a) When in his presence, the person to be arrested has committed,is

actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it;" (Emphasis supplied).
An offense is committed in the presence or within the view of an officer, within
the meaning of the rule authorizing an arrest without a warrant, when the officer
sees the offense, although at a distance, or hears the disturbances created
thereby and proceeds at once to the scene thereof (U.S. v. Fortaleza,12 Phil.
472 [1909];and U.S. v. Samonte,16 Phil. 516 [1910]).
The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo
Street to monitor the activities of the accused who was earlier reported to be
selling marijuana at a chapel two (2) meters away from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious
activity. He saw Sucro talk to some persons, go inside the chapel, and return to
them and exchange some things. These, Sucro did three times during the time
that he was being monitored. Fulgencio would then relay the on-going
transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that Macabante, when intercepted by the
police, was caught throwing the marijuana stick and when confronted, readily
admitted that he bought the same from accused-appellant clearly indicates
that Sucro had just sold the marijuana stick to Macabante, and therefore, had just
committed an illegal act of which the police officers had personal knowledge,
being members of the team which monitored Sucro's nefarious activity. cdphil

The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August
27, 1990) that police officers have personal knowledge of the actual commission
of the crime when it had earlier conducted surveillance activities of the accused.
Thus, it stated:
"When Luciano and Caraan reached the place where the alleged
transaction would take place and while positioned at a street corner, they
saw appellant Regalado Bati and Warner Marquez by the side of the
street about forty to fifty meters away from them (the public
officers).They saw Marquez giving something to Bati, who, thereafter
handed a wrapped object to Marquez who then inserted the object inside
the front of his pants infront of his abdomen while Bati, on his part,
placed the thing given to him inside his pocket. (p. 2)
xxx xxx xxx
...Both Patrolman Luciano and Caraan actually witnessed the same and
their testimonies were based on their actual and personal knowledge of
the events that took place leading to appellant's arrest. They may not
have been within hearing distance, specially since conversation would
expectedly be carried on hushed tones, but they were certainly near
enough to observe the movements of the appellant and the buyer.
Moreover, these prosecution witnesses are all law enforcers and are,
therefore, presumed to have regularly performed their duties in the
absence of proof to the contrary (People v. Bati, supra citing People v.
Agapito, G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant
considering that Fulgencio himself knew of Sucro's activities even prior to the
former s joining the police force. Fulgencio reported Sucro's activities only three
days before the incident.
As the records reveal, Fulgencio and Sucro had known each other since their
childhood years and that after Fulgencio joined the police force, he told the
accused-appellant not to sell drugs in their locality. Hence, it is possible that
because of this friendship, Fulgencio hesitated to report his childhood friend and
merely advised him not to engage in such activity. However, because of reliable
information given by some informants that selling was going on everyday, he was
constrained to report the matter to the Station Commander.
On the other hand, the failure of the police officers to secure a warrant stems
from the fact that their knowledge acquired from the surveillance was insufficient
to fulfill the requirements for the issuance of a search warrant. What is
paramount is that probable cause existed. Thus, it has been held in the case
of People v. Lo Ho Wing, et al.(G.R. No. 88017, January 21, 1991):
"In the instant case, it was firmly established from the factual findings of
the trial court that the authorities had reasonable ground to believe that
appellant would attempt to bring in contraband and transport it within the
country. The belief was based on intelligence reports gathered from
surveillance activities on the suspected syndicate, of which appellant
was touted to be a member. Aside from this, they were also certain as to
the expected date and time of arrival of the accused from China. But
such knowledge was clearly insufficient to enable them to fulfill the
requirements for the issuance of a search warrant. Still and all, the
important thing is that there was probable cause to conduct the
warrantless search, which must still be present in such a case."
As the Solicitor General has pointed out:
"There are several instances when a warrantless search and seizure can
be effected without necessarily being preceded by an arrest provided the
same is effected on the basis of probable cause (e.g. stop and search
without warrant at checkpoints).Between warrantless searches and
seizures at checkpoints and in the case at bar the latter is more
reasonable considering that unlike in the former, it was effected on the
basis of probable cause. Under the circumstances (monitoring of
transactions) there existed probable cause for the arresting officers, to
arrest appellant who was in fact selling marijuana and to seize the
contraband."
That searches and seizures must be supported by a valid warrant is not an
absolute rule (Manipon, Jr. v. Sandiganbayan,143 SCRA 267 [1986]).Among the
exceptions granted by law is a search incidental to a lawful arrest under Sec. 12,
Rule 126 of the Rules on Criminal Procedure, which provides that a person
lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant.
(People v. Castiller,G.R. No. 87783, August 6, 1990)
The accused-appellant claims that the arrest having been done without warrant,
it follows that the evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering its
compliance with the requirements of a warrantless arrest. Ergo, the fruits
obtained from such lawful arrest are admissible in evidence. LLpr

Edison Sucro assails the trial court's reliance on the statement of Macabante
whose reason for testifying could be merely to escape prosecution.
We quote the trial court's finding as to the testimony of Macabante:
"The non-filing of a complaint against him for possession of marijuana
may have been the reason of (sic) his willingness to testify in court
against the accused. But this does not necessarily taint the evidence that
proceeds from his lips. As explained by Lt. Seraspi, the best sources of
information against drug pushers are usually their customers, especially
if as in this case, there is no other direct evidence of the selling except
the testimony of the buyer. We accept this observation as a realistic
appraisal of a situation in which drug users are, and should be employed
by law enforcement authorities to bolster the drive against pushers who
are the real felons in our society. We have observed the demeanor of
the witness in court, and found him to be straightforward, unhesitating,
and spontaneous in his declarations, so that we are satisfied as to his
intention and disposition to tell the truth" (Rollo, p. 40)
Time and again it has been held that the findings of the trial court are entitled to
great weight and should not be disturbed on appeal unless it is shown that the
trial court had overlooked certain facts of weight and importance, it being
acknowledged that the court below, having seen and heard the witnesses during
the trial, is in a better position to evaluate their testimonies (People v. Umali, et
al.,G.R. No. 84450, February 4, 1991 citing People v. Alvarez,163 SCRA 745
[1988];People v. Dorado,30 SCRA 53 [1969];and People v. Espejo,36 SCRA 400
[1970])
Furthermore, the testimony of Macabante was corroborated on material points by
public officers Fulgencio and Seraspi.
There is nothing in the record to suggest that the police officers were compelled
by any motive than to accomplish their mission to capture a drug pusher in the
execution of the crime, the presumption being that police officers perform their
duties regularly in the absence of any evidence to the contrary (Rule 131, Sec.
3(m),Revised Rules on Evidence; People v. Castiller,supra citing People v.
Natipravat,145 SCRA 483 [1986])
The prosecution evidence was further bolstered by the findings of the Forensic
Chemist that the items seized were all positive for marijuana.
In contrast to the evidence presented by the prosecution, accused-appellant's
defense is alibi which is unavailing considering that he was positively identified
by Macabante to be the person from whom he bought marijuana.
Sucro alleges that he could not have committed the crime since he was with his
uncle and cousin distributing handbills for his Auntie's candidacy. The fact,
however, remains that it does not preclude the possibility that he was present in
the vicinity as established by his admission that he moved a lot and even had the
occasion to meet Macabante on the street.
It is well-settled that mere denials cannot prevail against the positive identification
of the appellant as the seller of the prohibited substances. (People v. Khan,161
SCRA 406 [1988];and People v. Paco,170 SCRA 681 [1989])
Premises considered, this Court is convinced that appellant Edison Sucro had
indeed committed the offense charged. The trial court's decision must be upheld.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.
(People v. Sucro, G.R. No. 93239, [March 18, 1991], 272-A PHIL 362-371)
|||

Macad vs. People, [G.R. No. 227366, August 1, 2018]

[G.R. No. 227366. August 1, 2018.]

DOMINGO AGYAO MACAD @

AGPAD, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.

DECISION

GESMUNDO, J : p

This is an appeal by certiorari which seeks to reverse and set aside the
March 17, 2016 Decision Comprehensive Dangerous Drugs Act of 2002
The Antecedents

In an information dated November 29, 2011, petitioner was charged

with violating Section 5, Article II of R.A. No. 9165. When arraigned, he
pleaded "not guilty." Thereafter, trial ensued.
Version of the Prosecution

In the afternoon of November 27, 2011, PO1 Davies

Falolo (PO1 Falolo), who was not on duty, boarded a Bing Bush bus bound
for Bontoc, Mountain Province. He sat on the top of the bus as it was full. At
Botbot, petitioner boarded the bus. He threw his carton baggage over to
PO1 Falolo. Petitioner, also carrying a Sagada woven bag, then sat on top of
the bus, two (2) meters away from PO1 Falolo. 5
 When petitioner threw his carton box, PO1 Falolo already suspected
that it contained marijuana because of its distinct smell and irregular shape.
He was also dubious of the Sagada woven bag that petitioner had because it
was supposed to be oval but it was rectangular in shape. PO1 Falolo planned
to inform other police officers at the barracks but he was unable to do so
because he ran out of load to send a text message. 6
Upon reaching Bontoc, petitioner alighted at Caluttit, while PO1 Falolo
went down at the Department of Public Works and
Highways (DPWH) Compound to buy load for his cellular phone. Unable to
find any store selling load, PO1 Falolo hailed a tricycle and asked to be
brought to Caluttit. PO1 Falolo seated at the back of the driver. When the
tricycle arrived at Caluttit, petitioner was still there and hailed and rode inside
the same tricycle, with PO1 Falolo still seated behind the driver. 7
When the tricycle reached the Community Police Assistance
Center (COMPAC) circle, PO1 Falolo stopped the tricycle and called SPO2
Gaspar Suagen (SPO2 Suagen), who was then on duty. While SPO2 Suagen
approached them, PO1 Falolo asked petitioner if he could open his baggage,
to which the latter replied in the affirmative. However, petitioner suddenly ran
away from the tricycle towards the Pines Kitchenette. Both police officers ran
after him and apprehended him in front of Sta. Rita Parish Church. Petitioner
was then handcuffed and he, together with his baggage, were brought to the
Municipal Police Station. 8
At the police station, the baggage of petitioner were opened and these
revealed eleven (11) bricks of marijuana from the carton baggage and six (6)
bricks of marijuana from the Sagada woven bag. The seized items were
marked, photographed and inventoried in the presence of petitioner, the
barangay chairman, a prosecutor and a media representative. The bricks from
the carton baggage weighed 10.1 kilograms; while the bricks from the Sagada
woven bag weighed 5.9 kilograms. The items were brought to the Regional
Crime Laboratory Office for a forensic examination, which yielded a positive
result for marijuana. 9
Version of the Defense

On November 27, 2011, petitioner boarded a Bing Bush bus and sat on
top. With him was an unidentified man, who had a carton box. When he
alighted from the bus, petitioner called for a tricycle where PO1 Falolo and the
unidentified man had already boarded. The unidentified man then asked
petitioner to have his baggage dropped at the "circle" and the former alighted
at the motorpool. 10
Upon reaching the COMPAC, PO1 Falolo stopped the tricycle and
asked petitioner why his companion left. Petitioner denied that he had a
companion. When he saw PO1 Falolo call for another police officer, he ran
away. Realizing that the baggage was not his, petitioner stopped near the
church. At this point, PO1 Falolo and another police officer caught him and
arrested him. Petitioner was then brought to the COMPAC, where they waited
for thirty (30) minutes before going to the municipal hall. There, he was
coerced to confess that the baggage was his.
The RTC Ruling

In its January 10, 2014 judgment, the RTC found petitioner guilty of
transporting illegal drugs and sentenced him to suffer the penalty of life
imprisonment and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00). The trial court ruled that petitioner's warrantless arrest was
legal because he was caught in flagrante delicto of transporting marijuana,
and, as such, the subsequent search and seizure of the marijuana was legal
as an incident of a lawful arrest. In addition, it posited that the integrity and
evidentiary value of the drugs seized were preserved. The RTC observed
that no considerable time had elapsed from the time petitioner ran away until
he was arrested. Also, the trial court noted that the immediate marking of the
seized items at the nearest police station was valid. Further, it stated that the
witnesses were able to explain the minor inconsistencies in the documentary
evidence presented. The fallo of the RTC judgment reads:
ACCORDINGLY, judgment is hereby rendered finding the
accused DOMINGO AGYAO MACAD GUILTY beyond reasonable
doubt of the crime [of violation] of Section 5 of R.A. [No.] 9165 and is
sentenced to suffer the penalty of LIFE IMPRISONMENT and a fine of
FIVE HUNDRED THOUSAND PESOS (PhP500,000.00).
The subject prohibited drugs are forfeited in favor of the
government and are hereby directed to be turned over with dispatch to
the Philippine Drug Enforcement n (PDEA) for disposition in
accordance with the law.
Pursuant to Administrative Circular No. 4-92-A of the Court
Administrator, the District Jail Warden of the Bureau of Jail
Management and Penology, Bontoc District Jail, Bontoc, Mountain
Province is directed to immediately transfer the accused, DOMINGO
AGYAO MACAD, to the custody of the Bureau of Corrections,
Muntinlupa City, Metro Manila after the expiration of fifteen (15) days
from date of promulgation unless otherwise ordered by this Court.
SO ORDERED. 11
Petitioner filed a motion for reconsideration but it was denied by the
RTC in its resolution dated January 10, 2014.
Undaunted, petitioner appealed to the CA.
The CA Ruling

In its March 17, 2016 decision, the CA affirmed the RTC's decision. The
appellate court agreed that the search conducted was an incident of a lawful
arrest because petitioner's warrantless arrest was valid as it fell under Section
5 (a) and (b), Rule 113 of the Rules of Court. The CA also noted that the
pungent smell of marijuana emanating from the baggage of petitioner
constituted probable cause for PO1 Falolo to conduct a warrantless arrest. It
likewise reiterated that the prosecution was able to establish the chain of
custody.
Petitioner moved for reconsideration, but it was denied by the CA in its
September 23, 2016 resolution.
Hence, this petition.

ISSUES

Petitioner argues that:

THE COURT OF APPEALS COMMITTED MISAPPREHENSION OF
FACTS AND CONSEQUENTLY ERRED AND GRAVELY ABUSED
ITS DISCRETION IN UPHOLDING THE FINDING OF THE
REGIONAL TRIAL COURT THAT THE ACCUSED WAS
COMMITTING A CRIME WHEN HE WAS ARRESTED THEREBY
JUSTIFYING HIS WARRANTLESS ARREST AND EVENTUAL
SEARCH AND SEIZURE.
THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN
NOT EXCLUDING THE MARIJUANA ALLEGEDLY [SEIZED] FROM
THE PETITIONER IN [CONSONANCE] WITH ARTICLE III, SECTION
3(2) OF THE 1987 CONSTITUTION.
THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS
DISCRETION IN UPHOLDING THE FINDING OF THE REGIONAL
TRIAL COURT THAT THE CHAIN OF CUSTODY OF THE SEIZED
DRUG WAS PROPERLY ESTABLISHED. 12
Petitioner asserts that the search conducted was neither an incident of
a lawful arrest nor was it made with his consent. He assails that PO1 Falolo's
actions belie that he had probable cause to believe that petitioner was
transporting marijuana because it took him a long time to make any overt act
in arresting petitioner.
In addition, petitioner argues that the integrity of the items seized was
compromised because the baggage, which contained the drugs, were left
behind when the police officers chased him. Also, he claims that the
procedure prescribed under Section 21 of R.A. No. 9165 was not followed
because the marking, photography and inventory were not immediately made
at the place of arrest.
In its Comment, 13 respondent, through the Office of the Solicitor
General (OSG), argues that at the moment petitioner boarded the bus,
PO1 Falolo had probable cause to conduct the warrantless search and
seizure on petitioner's personal effects due to the distinctive smell of
marijuana emanating from petitioner's carton baggage and the unusual shape
of the Sagada woven bag. It also states that the probable cause of
PO1 Falolo was reinforced when petitioner ran away when asked for
permission to check his baggage. Respondent concludes that petitioner's
warrantless arrest and incidental search from such arrest were based on the
existence of probable cause.
Respondent also argues that PO1 Falolo immediately tried to contact
the Provincial Head Quarters (PHQ) when he had probable cause that
petitioner was transporting marijuana, but his cellular phone ran out of load;
and that the integrity and evidentiary value of the seized items were preserved
because all the police officers involved in the chain of custody took the
necessary precautions to ensure that there had been no change in the
condition of the marijuana bricks. It further avers that the minor discrepancy in
the document, entitled "Turn Over of Evidence," is too inconsequential to
affect the integrity and evidentiary value of the seized items.
In his Reply, 14 a petitioner reiterates that PO1 Falolo did not have
probable cause to search his baggage because he did not immediately
confront him regarding the matter; and that PO1 Falolo's indifferent actions
cast doubt on his certainty that petitioner's baggage contained illegal drugs.

The Court's Ruling

The petition lacks merit.

Petition resorted to the
wrong mode of appeal
Section 13 (c), Rule 124 of the Rules of Court, as amended, states that
"[i]n cases where the CA imposes reclusion perpetua, life imprisonment or a
lesser penalty, it shall render and enter judgment imposing such penalty. The
judgment may be appealed to the Supreme Court by notice of appeal filed
with the Court of Appeals." Hence, an accused, upon whom the penalty
of reclusion perpetua or life imprisonment had been imposed by the CA, can
simply file a notice of appeal to allow him to pursue an appeal as a matter of
right before the Court, which opens the entire case for review on any question
including one not raised by the parties. 15
 On the other hand, an accused may also resort to an appeal
by certiorari to the Court via Rule 45 under the Rules of Court. An appeal to
this Court by petition for review on certiorari shall raise only questions of law.
Moreover, such review is not a matter of right, but of sound judicial discretion,
and will be granted only when there are special and important reasons. 16
In other words, when the CA imposed a penalty of reclusion perpetua or
life imprisonment, an accused may: (1) file a notice of appeal under Section
13 (c), Rule 124 to avail of an appeal as a matter of right before the Court and
open the entire case for review on any question; or (2) file a petition for review
on certiorari under Rule 45 to resort to an appeal as a matter of discretion and
raise only questions of law. 17
In this case, the CA affirmed the RTC decision imposing the penalty of
life imprisonment to petitioner. Notably, however, the petition filed before this
Court invokes grave abuse of discretion in assailing the CA decision, which is
a ground under a petition for certiorari under Rule 65 of the Rules of Court. In
any event, even if the instant petition is treated as a petition for review
on certiorari under Rule 45, which is limited to questions of law, it still raises
questions of fact because it essentially assails the appreciation of the
testimonial and documentary evidence by the CA and the RTC. 18 As a rule,
these questions of fact cannot be entertained by the Court under Rule 45.
Thus, the petition is procedurally infirm.
Nonetheless, even if the questions of fact raised by petitioner are
considered by the Court, the petition is still bereft of merit.
PO1 Falolo had probable
cause to conduct a valid
warrantless arrest and a
valid incidental search
Rule 113 of the Rules of Court identifies three (3) instances when
warrantless arrests may be lawfully effected. These are: (a) an arrest of a
suspect in flagrante delicto; (b) an arrest of a suspect where, based on
personal knowledge of the arresting officer, there is probable cause that said
suspect was the perpetrator of a crime which had just been committed;
and (c) an arrest of a prisoner who has escaped from custody serving final
judgment or temporarily confined during the pendency of his case or has
escaped while being transferred from one confinement to another. 19
In warrantless arrests made pursuant to Section 5 (a), Rule 113, two
(2) elements must concur, namely: (a) the person to be arrested must
execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (b) such overt act is done
in the presence or within the view of the arresting officer. On the other hand,
Section 5 (b), Rule 113 requires for its application that at the time of the
arrest, an offense had in fact just been committed and the arresting officer
had personal knowledge of facts indicating that the accused had committed
it. 20
In both instances, the officer's personal knowledge of the fact of the
commission of an offense is essential. Under Section 5 (a), Rule 113 of
the Revised Rules of Criminal Procedure, the officer himself witnesses
the crime; while in Section 5 (b) of the same, he knows for a fact that a crime
has just been committed. 21
A valid warrantless arrest which justifies a subsequent search is one
that is carried out under the parameters of Section 5 (a), Rule 113 of
the Rules of Court, which requires that the apprehending officer must have
been spurred by probable cause to arrest a person caught in flagrante delicto.
To be sure, the term probable cause has been understood to mean a
reasonable ground of suspicion supported by circumstances sufficiently
strong in themselves to warrant a cautious man's belief that the person
accused is guilty of the offense with which he is charged. Specifically, with
respect to arrests, it is such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested. In this light, the determination
of the existence or absence of probable cause necessitates a re-examination
of the factual incidents. 22 Accordingly, after a valid warrantless arrest is
effected, the officer may also conduct a valid warrantless search, which is in
incidental to such arrest.
Aside from a search incident leading to a lawful arrest, warrantless
searches have also been upheld in cases involving a moving vehicle. The
search of moving vehicles has been justified on the ground that the mobility of
motor vehicles makes it possible for the vehicle to be searched to move out of
the locality or jurisdiction in which the warrant must be sought. 23
A search of a moving vehicle may either be a mere routine
inspection or an extensive search. The search in a routine inspection is
limited to the following instances: (1) where the officer merely draws
aside the curtain of a vacant vehicle which is parked on the public fair
grounds; (2) simply looks into a vehicle; (3) flashes a light therein without
opening the car's doors; (4) where the occupants are not subjected to a
physical or body search; (5) where the inspection of the vehicles is
limited to a visual search or visual inspection; and (6) where the routine
check is conducted in a fixed area. 24
On the other hand, an extensive search of a moving vehicle is only
permissible when there is probable cause. When a vehicle is stopped and
subjected to an extensive search, such a warrantless search has been held to
be valid only as long as the officers conducting the search have reasonable
or probable cause to believe before the search that they will find the
instrumentality or evidence pertaining to a crime, in the vehicle to be
searched. 25
This Court has in the past found probable cause to conduct without a
judicial warrant an extensive search of moving vehicles in situations where
(1) there had emanated from a package the distinctive smell of
marijuana; (2) officers of the Philippine National Police (PNP) had received a
confidential report from informers that a sizeable volume of marijuana would
be transported along the route where the search was conducted; (3) [police
officers] had received information that a Caucasian coming from Sagada,
Mountain Province, had in his possession prohibited drugs and when the
Narcom agents confronted the accused Caucasian, because of a conspicuous
bulge in his waistline, he failed to present his passport and other identification
papers when requested to do so; (4) [police officers] had received confidential
information that a woman having the same physical appearance as that of the
accused would be transporting marijuana; (5) the accused who were riding a
jeepney were stopped and searched by policemen who had earlier received
confidential reports that said accused would transport a large quantity of
marijuana; and (6) where the moving vehicle was stopped and searched on
the basis of intelligence information and clandestine reports by a deep
penetration agent or spy — one who participated in the drug smuggling
activities of the syndicate to which the accused belonged — that said accused
were bringing prohibited drugs into the country. 26
In People v. Claudio, 27 a police officer rode a bus with the accused
therein from Baguio City to Olongapo City. The officer noticed that the
accused was acting suspiciously with her woven buri bag. While in transit, the
officer inserted his finger in the buri bag and smelled marijuana. However, the
officer did not do anything after he discovered that there was marijuana inside
the bag of the accused until they reached Olongapo City. Right after the
accused alighted from the bus, the officer apprehended her and brought her
to the police station. There, a search on the bag of the accused yielded
marijuana. In that case, the Court ruled that the officer had probable cause to
conduct a valid warrantless arrest and make a warrantless search incidental
to a lawful arrest.
In People v. Vinecario, 28 the accused therein were onboard a
motorcycle when they sped past a checkpoint and the officers ordered them
to return. Upon their return, the officers required them to produce their
identification cards, but they failed to comply. The officers noticed that the
accused were acting suspiciously with the military bag they were carrying
because it was passed from one person to another. The officers then ordered
one of the accused to open the bag. When the latter opened it, a package
wrapped in paper was taken out and when one of the accused grabbed it, the
wrapper was torn and the smell of marijuana wafted in the air. Thereafter, the
accused were arrested and the items were confiscated. In that case, the Court
ruled that there was probable cause to conduct an extensive search because
of the numerous circumstances indicating that accused were offenders of the
law.
In this case, the Court finds that PO1 Falolo had probable cause to
believe that petitioner was carrying marijuana in his baggage. He testified as
follows:
[Pros. DOMINGUEZ]
Q: According to you when you reached Botbot a certain
Domingo Macad [hailed the bus], what did you do Mr. Witness?
[Police Officer FALOLO]
A: He [threw] his [carton] baggage and went at the top load, sir.
Q: Before he [threw] you his baggage, what did he do?
A: He [flagged] down the bus, sir.
xxx xxx xxx
Q: When the bus stop, what did Domingo Macad do?
A: He [threw] me his baggage, sir.
Q: How did he throw to you the baggage [carton]?
A: He threw the baggage upwards, sir.
Q: Were you able to catch the [carton] baggage?
A: Yes, sir.
Q: Aside from that what did you notice when he [threw] you that baggage
[carton]?
A: The smell and the shape of the [carton], sir.
Q: Will you describe to us the [carton] baggage of Domingo Macad?
A: The [carton] was supposed to be flat but it seems there is
something at the top, sir.
Q: Was there markings on this [carton]?
A: Yes, sir. Magic flakes.
Q: After he threw you this [carton] what happened next?
A: He immediately came to the top load, sir.
Q: How far were you seated from him?
A: About two meters, sir.
 Q: Aside from this [carton] what else did you notice when he went on top
of the bus?
A: I noticed a Sagada traveling pack, sir. The shape of the bag is
rectangular [but] it is supposed to be oval, sir.
Q: What is the color of the bag?
A: Blue, sir.
Q: Was he carrying this Sagada woven bag?
A: Yes, sir.
Q: What did you notice to this woven bag, Mr. witness?
A: The shape, sir. When I touched [it], it's hard, sir.
Q: What came to your mind when you [touched that] it's hard?
A: [I] suspected marijuana bricks, sir.
Q: Why did you suspect that they are marijuana bricks?
A: First, when he [threw] me the [carton] baggage [and] right there I
[smelled] the odor [that] is the same as marijuana, sir.
Q: You mean to say, when you [held] that [carton], you [smelled]
marijuana leaves?
A: Yes, sir.
Q: Why are you familiar with the smell of marijuana leaves?
A: It is familiar to us law enforces because in our trainings, our
instructors showed to us the different kinds of marijuana. We
touch and we smell, sir.
Q: That was during your training as police officers?
A: Yes, sir and the same odor when we caught marijuana in Tocucan,
sir.
Q: So you mean to say, Mr. witness, that at the time he [threw] you
that [carton] and he boarded and [joined] you at the top load
and so with the Sagada woven bag, you suspected marijuana
leaves?
A: Yes, sir. 29 (emphases supplied)
Evidently, petitioner hailed the same bus that PO1 Falolo was riding on
the way to Bontoc, Mountain Province. He then threw his carton baggage to
PO1 Falolo who was then seated on the roof and was toting a Sagada woven
bag as well. Immediately, PO1 Falolo smelled the distinct scent of marijuana
emanating from the carton baggage and noticed its irregular shape. He also
noticed that the Sagada woven bag of petitioner was rectangular instead of an
oval and, upon touching it, he noticed that it was hard.
 Accordingly, PO1 Falolo had probable cause that petitioner was
committing the crime of transporting dangerous drugs, specifically marijuana
bricks, due to the unique scent of marijuana emanating from the bag and the
unusual shapes and hardness of the baggage. As PO1 Falolo was not in
uniform at that time, he intended to inform his colleagues at the PHQ Barracks
to conduct a check point so that they could verify his suspicion about the
transport of illegal drugs. 30 As seen in his testimony, PO1 Falolo already
had probable cause to conduct an extensive search of a moving
vehicle because he believed before the search that he and his colleagues
would find instrumentality or evidence pertaining to a crime, particularly
transportation of marijuana, in the vehicle to be searched.
However, PO1 Falolo discovered that his load was insufficient to make
a phone call. Thus, without the back-up of his colleagues, he chose to remain
vigilant of petitioner until he could contact them. When the bus reached
Bontoc, petitioner alighted in lower Caluttit. On the other hand, PO1 Falolo
alighted in front of the DPWH Compound, which was not more than a
kilometer away from lower Caluttit, to look for cellphone load to contact his
colleagues. When he failed to find load for his phone, PO1 Falolo immediately
boarded a tricycle back to lower Caluttit and sat at the back of the driver.
There, PO1 Falolo chanced upon petitioner, who boarded the same
tricycle and sat inside. When the tricycle reached the COMPAC, PO1 Falolo
stopped the tricycle and called SPO2 Suagen, who was on duty. He then
asked petitioner if he could check his baggage and the latter answered in the
affirmative. However, when petitioner saw SPO2 Suagen approaching the
tricycle, he suddenly ran away towards the Pizza Kitchenette and left his
baggage.
At that moment, PO1 Falolo also acquired probable cause to
conduct a warrantless arrest on petitioner. There were numerous
circumstances and overt acts which show that PO1 Falolo had probable
cause to effect the said warrantless arrest: (1) the smell of marijuana
emanating from the carton baggage; (2) the irregular shape of the baggage;
(3) the hardness of the baggage; (4) the assent of petitioner in the inspection
of his baggage but running away at the sight of SPO2 Suagen; and (5) leaving
behind his baggage to avoid the police officers.
Petitioner's flight at the sight of the uniformed police officer and leaving
behind his baggage are overt acts, which reinforce the finding of probable
cause to conduct a warrantless arrest against him. The Court has held that
the flight of an accused is competent evidence to indicate his guilt; and flight,
when unexplained, is a circumstance from which an inference of guilt may be
drawn. Indeed, the wicked flee when no man pursueth, but the innocent are
as bold as lion. 31
 Based on these facts, PO1 Falolo had probable cause to believe that
there was a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's belief that
petitioner is guilty of the offense charged. Petitioner was caught in flagrante
delicto of transporting marijuana bricks by PO1 Falolo.
Consequently, when PO1 Falolo and SPO2 Suagen captured petitioner
in front of the St. Rita Parish Church, they had probable cause to arrest him
and bring him and his baggage to the police station. There, the police officers
properly conducted a search of petitioner's baggage, which is an incident to a
lawful arrest. Indeed, numerous devious circumstances surround the incident,
from the time petitioner boarded the bus until he was caught after fleeing at
the sight of the police officer, that constitute as probable cause to arrest him
and to conduct the warrantless search incidental to such lawful arrest.
Under the circumstances, PO1
Falolo could not immediately
conduct the search
Petitioner's argument — that PO1 Falolo's finding of probable cause is
not authentic because petitioner was not immediately arrested or searched in
the bus or upon disembarking — is bereft of merit.
As properly discussed by the RTC, it was reasonable for PO1 Falolo
not to immediately arrest petitioner. 32 PO1 Falolo was not on duty and was
not in uniform when he smelled the pungent odor of marijuana from the
baggage of petitioner. They were in a crowded bus and any commotion
therein may cause panic to the civilian passengers. Further, it was not shown
that PO1 Falolo was carrying handcuffs, thus, he may not be able to single-
handedly restrain petitioner. 33 Moreover, the Court finds that it was sensible
for PO1 Falolo to wait for back-up as petitioner could be carrying a dangerous
weapon to protect his two large bags of suspected marijuana.
When he saw petitioner disembark from the bus in lower Caluttit,
PO1 Falolo did not immediately follow him; rather, PO1 Falolo disembarked in
front of the DPWH. The RTC underscored that the proximity of the said place
was not more than a kilometer away from lower Caluttit. 34 Thus, when
PO1 Falolo failed to find load for his cellular phone, he was able to reach
lower Caluttit immediately on board a tricycle and was able to chance upon
petitioner due to the proximity of their positions. Manifestly, PO1 Falolo's
acts showed that he clung to his determination of probable cause to
conduct an extensive search on the baggage of petitioner. When
PO1 Falolo saw his colleague SPO2 Suagen in the COMPAC, he decided
that it was safe and reasonable to conduct the search and immediately asked
permission from petitioner to examine his baggage.
 Nevertheless, when petitioner suddenly ran away from the tricycle while
SPO2 Suagen was approaching and left his baggage behind, PO1 Falolo also
obtained probable cause to conduct a warrantless arrest. He was earnest in
his probable cause that petitioner was committing a crime in flagrante delicto,
thus, PO1 Falolo religiously pursued him until he was arrested and his
baggage eventually searched as an incident thereof.
The chain of custody rule

Chain of custody means the duly recorded authorized movements and

custody of seized drugs or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody
of seized item shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such transfer of
custody were made in the course of safekeeping and use in court as
evidence, and the final disposition. 35 To ensure the establishment of the
chain of custody, Section 21 (1) of RA No. 9165 specifies that:
(1) The apprehending team having initial custody and control of
the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or
the person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory and be given a
copy thereof.
Section 21 (a) of the Implementing Rules and Regulations (IRR)
of R.A. No. 9165 supplements Section 21 (1) of the said law, viz.:
(a) The apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant
is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case
of warrantless seizures; Provided, further, that non-compliance with
these requirements under justifiable grounds, as long as the integrity
and the evidentiary value of the seized items are properly preserved by
 the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items[.] (emphasis supplied)
Based on the foregoing, Section 21 of R.A. No. 9165 requires the
apprehending team, after seizure and confiscation, to immediately conduct a
physically inventory; and photograph the same in the presence of (1) the
accused or the persons from whom such items were confiscated and/or
seized, or his/her representative or counsel, (2) a representative from
the media and (3) the DOJ, and (4) any elected public official who shall
be required to sign the copies of the inventory and be given a copy
thereof. 36
In the amendment of R.A. No. 10640, the apprehending team is now
required to conduct a physical inventory of the seized items and photograph
the same in (1) the presence of the accused or the persons from whom
such items were confiscated and/or seized, or his/her representative or
counsel, (2) with an elected public official and (3) a representative of the
National Prosecution Service or the media who shall be required to sign
the copies of the inventory and be given a copy thereof. 37 In the present
case, as the alleged crimes were committed on November 27, 2011, then the
provisions of Section 21 of R.A. No. 9165 and its IRR shall apply.
Notably, Section 21 of the IRR provides a saving clause which states
that non-compliance with these requirements shall not render void and invalid
such seizures of and custody over the confiscated items provided that such
non-compliance were under justifiable grounds and the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer or team. 38
The exception found in the IRR of R.A. 9165 comes into play when
strict compliance with the prescribed procedures is not observed. This saving
clause, however, applies only (1) where the prosecution recognized the
procedural lapses, and thereafter explained the cited justifiable grounds, and
(2) when the prosecution established that the integrity and evidentiary value of
the evidence seized had been preserved. The prosecution, thus, loses the
benefit of invoking the presumption of regularity and bears the burden of
proving — with moral certainty — that the illegal drug presented in court is the
same drug that was confiscated from the accused during his arrest. 39
The prosecution substantially
complied with the chain of
custody rule
The Court finds that the prosecution was able to sufficiently comply with
the chain of custody rule under Section 21 of R.A. No. 9165 and its IRR.
When petitioner was apprehended, he and his baggage were brought to the
Municipal Police Station. There, the seized items, consisting of eleven (11)
bricks of marijuana from the carton baggage and six (6) bricks of marijuana
from the Sagada woven bag, were marked, photographed and inventoried. At
that moment, the presence of petitioner, Barangay Chairman Erlinda
Bucaycay, DOJ representative Prosecutor Golda Bagawa, a media
representative Gregory Taguiba, and a certain Atty. Alsannyster Patingan
were secured by the police officers. 40 Accordingly, all the required witnesses
under Section 21 of R.A. No. 9165 were obtained. Petitioner does not even
question the sufficiency of the required witnesses.
The seized items were also immediately weighed. The eleven (11)
bricks from the carton baggage weighed 10.1 kilograms; while six (6) bricks
from the Sagada woven bag weighed 5.9 kilograms. 41
After the marking, inventory and taking of photographs, SPO1 Jessie
Lopez (SPO1 Lopez) prepared the inventory report and allowed the witnesses
to sign it. SPO1 Lopez also signed the spot report. The seized items were
then turned over to PO2 Jonathan Canilang (PO2 Canilang), who thereafter
brought the said items along with the request for laboratory examination to
SPO3 Oscar Cayabas (SPO3 Cayabas) of the Provincial Crime Laboratory,
Bontoc, Mountain Province. SPO3 Cayabas then made a request for
examination to the Regional Crime Laboratory Office. There, PSI Alex
Biadang (PSI Biadang) received the request for examination, along with the
seized items. After the examination, all the bricks tested positive for
marijuana. The subject bag and carton, together with the seized marijuana
bricks, were all identified in open court by PO1 Falolo and PSI Biadang. 42
Clearly, the prosecution was able to establish the chain of custody of
the seized drugs. They were able to prove that all the persons who handled
the drugs were duly accounted for and that the integrity and evidentiary value
of the seized items were maintained by these persons until their presentation
in court. In addition, there was no lapse or gap in the handling of the seized
items because the witnesses of the prosecution correctly identified the
persons involved in the custody of the seized marijuana bricks.
The seized items may be marked in
the nearest police station; minor
discrepancy in the document is
immaterial
Petitioner argues that the police officers should have immediately
marked the seized items upon his arrest and should not have left the baggage
in the tricycle.
The Court is not convinced.
 As a rule, under the IRR, the physical inventory and photograph of the
seized items shall be conducted at the place where the search warrant is
served. Likewise, the marking should be done upon immediate confiscation.
However, Section 21 of the IRR also provides an exception that the physical
inventory and photography of the seized items may be conducted at the
nearest police station or the nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures. In such instance,
provided that it is practicable, the marking of the seized items may also be
conducted at nearest police station.
In Imson v. People, 43 the Court stated that to be able to create a first
link in the chain of custody, what is required is that the marking be made in
the presence of the accused and upon immediate confiscation. "Immediate
Confiscation" has no exact definition. Thus, testimony that included the
marking of the seized items at the police station and in the presence of the
accused was sufficient in showing compliance with the chain of custody rules.
Marking upon immediate confiscation contemplates even marking at the
nearest police station or office of the apprehending team.
Similarly, in People v. Bautista, 44 the Court reiterated that the failure to
mark the seized items at the place of arrest does not itself impair the integrity
of the chain of custody and render the confiscated items inadmissible in
evidence. Marking upon "immediate" confiscation can reasonably cover
marking done at the nearest police station or office of the apprehending team,
especially when the place of seizure is volatile and could draw unpredictable
reactions from its surroundings.
In this case, it was reasonable for the police officers not to conduct the
marking immediately at the place of the arrest and seizure. Evidently,
petitioner is a flight risk because he immediately ran away at the sight of
SPO2 Suagen. To conduct the marking in an unsecured location may result in
the escape of petitioner. Also, the seized baggage contained large quantities
of marijuana. It would be impractical, if not dangerous, for merely two police
officers to conduct the marking of such drugs in broad daylight and in open
public, without the assistance and security of other police officers.
Accordingly, it was prudent and rational for the police officers to conduct the
marking in the police station. As stated earlier, PO1 Falolo and PSI Biadang
were able to identify all the marked items in open court.
Further, there was no opportunity of tampering when PO1 Falolo and
SPO2 Suagen ran after petitioner. As properly discussed by the RTC, there
was no considerable time that elapsed from the moment that petitioner ran
away from his baggage up to the time the police officers arrested him. The
distance between the Sta. Rita Church, where petitioner was caught, and the
COMPAC, where the baggage was left, was only about 500 meters. Thus, the
 police officers were able to immediately return to the baggage once they
arrested petitioner. It would be the height of absurdity to require the police
officers to simply wait at the tricycle while they freely allow petitioner to
escape even though there was probable cause to believe that he was
transporting illegal drugs.
Likewise, petitioner argues that the mistake in the document, entitled
"Turn Over of Evidence," which states that six (6) bricks of marijuana were
contained in a carton, instead of the Sagada woven bag, taints the chain of
custody.
Again, the argument has no merit.
The RTC correctly observed that the statement in the turn over of
evidence that the six (6) bricks of marijuana were contained in a carton,
instead of the Sagada woven bag, was a minor oversight and does not in any
way destroy the prosecution's case. PO1 Falolo testified that the six (6) bricks
of marijuana were contained in the Sagada woven bag. When PO2 Canilang
was presented as witness, he also testified that the six (6) bricks of marijuana
were acquired in the Sagada woven bag. Both witnesses were able to
properly identify the marking contained in the said bricks of marijuana from
the Sagada woven bag. These portions of the testimonies of the police officer
were never assailed by petitioner during cross-examination, hence, these
were readily admitted by the RTC.
Verily, it was only in the turn over of evidence that the minor mistake
was found and it was a mere product of inadvertence. The testimonies of the
prosecution witnesses sufficiently established that the six (6) bricks of
marijuana were indeed found in the Sagada woven bag. Accordingly, it was
proven by the prosecution that the six (6) marijuana bricks were seized from
the Sagada woven bag belonging to petitioner, and not from the carton.
In fine, the guilt of petitioner for violating Section 5, Article II of Republic
Act (R.A.) No. 9165 for transporting illegal drugs has been proven beyond
reasonable doubt.
WHEREFORE, the petition is DENIED. The March 17, 2016 Decision
and September 23, 2016 Resolution of the Court of Appeals in CA-G.R. CR-
H.C. No. 06638 are AFFIRMED in toto.
SO ORDERED.
Velasco, Jr. and Bersamin, JJ., concur.
||| (Macad v. People, G.R. No. 227366, [August 1, 2018])

People vs. Rodrigueza [G.R. No. 95902, February 4, 1992]

[G.R. No. 95902. February 4, 1992.]
 PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. DON RODRIGUEZA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUGS ACT OF 1972 (RA No. 6425);

ENTRAPMENT; BUY-BUST OPERATION; REQUISITE THEREOF; NOT
COMPLIED WITH IN CASE AT BAR. — A buy-bust operation is a form of
entrapment employed by peace officers to trap and catch a malefactor
in flagrante delicto. Applied to the case at bar, the term in flagrante
delicto requires that the suspected drug dealer must be caught redhanded in the
act of selling marijuana or any prohibited drug to a person acting or posing as a
buyer. In the instant case, however, the procedure adopted by the NARCOM
agents failed to meet this qualification. Based on the very evidence of the
prosecution, after the alleged consummation of the sale of dried marijuana
leaves, CIC Taduran immediately released appellant Rodrigueza instead of
arresting and taking him into his custody. This act of CIC Taduran,
assuming arguendo that the supposed sale of marijuana did take place, is
decidedly contrary to the natural course of things and inconsistent with the
aforestated purpose of a buy-bust operation. It is rather absurd on his part to let
appellant escape without having been subjected to the sanctions imposed by
law. It is, in fact, a dereliction of duty by an agent of the law.
2. ID.; ID.; CONFISCATED MARIJUANA LEAVES AND OTHER PROHIBITED
DRUG PARAPHERNALIA CONSTITUTES THE CORPUS DELICTI OF THE
CRIME; PROOF OF THEIR EXISTENCE NECESSARY. —
In People vs. Rubio (142 SCRA 329 [1986]), this Court had the occasion to rule
that the plastic bag and the dried marijuana leaves contained therein constitutes
the corpus delicti of the crime. As such, the existence thereof must be proved
with certainty and conclusiveness. Failure to do so would be fatal to the cause of
the prosecution.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF A PERSON UNDER
CUSTODIAL INVESTIGATION; WAIVER THEREOF MUST BE MADE WITH
ASSISTANCE AND IN THE PRESENCE OF COUNSEL. — The admissibility of
the sworn statement allegedly executed by appellant was squarely placed in
issue and, as correctly pointed out by the defense, said sworn statement is
inadmissible in evidence against appellant. We have once again to reiterate and
emphasize that Article III of the 1987 Constitution provides: "Sec. 12 (1). Any
person under investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have a competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel. . . . (3) Any
confession or admission obtained in violation of this or section 17 hereof shall be
inadmissible in evidence against him." An examination of said sworn statement
shows that appellant was informed of his constitutional right to remain silent and
to be assisted by counsel during custodial examination. He was also asked if he
was waiving his right to be assisted by counsel and he answered in the
affirmative. However, while the rights of a person under custodial investigation
may be waived, such waiver must be made not only voluntarily, knowingly and
intelligently but also in the presence and with the assistance of counsel
(People vs. Olaes, 188 SCRA 91 [1990]; People vs. Hernandez, et al., 162
SCRA 422 [1988]). In the present case, the waiver made by appellant being
without the assistance of counsel, this omission alone is sufficient to invalidate
said sworn statement (People vs. Nolasco, 163 SCRA 623 [1988]).
4. ID.; ID.; SEARCH AND SEIZURE; SEARCH WARRANT REQUIRED;
EXCEPTIONS; CASE AT BAR. — As provided in the present Constitution, a
search, to be valid, must generally be authorized by a search warrant duly issued
by the proper government authority (Section 2, Article III, 1987 Constitution).
True, in some instances, this Court has allowed government authorities to
conduct searches and seizures even without a search warrant. Thus, when the
owner of the premises waives his right against such incursion; when the search
is incidental to a lawful arrest; when it is made on vessels and aircraft for
violation of customs laws; when it is made on automobiles for the purpose of
preventing violations of smuggling or immigration laws; when it involves
prohibited articles in plain view; or in cases of inspection of buildings and other
premises for the enforcement of fire, sanitary and building regulations, a search
may be validly made even without a search warrant. In the case at bar, however,
the raid conducted by the NARCOM agents in the house of
Jovencio Rodrigueza was not authorized by any search warrant. It does not
appear, either, that the situation falls under any of the aforementioned cases.
Hence, appellant's right against unreasonable search and seizure was clearly
violated. The NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the
prosecution witnesses reveal that the place had already been put under
surveillance for quite some time. Had it been their intention to conduct the raid,
then they should, because they easily could, have first secured a search warrant
during that time.
5. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; CREDIBILITY
THEREOF AFFECTED BY MATERIAL INCONSISTENCIES. — It is accepted
that, as a rule, minor inconsistencies in the testimony of a witness will not affect
his credibility. It even enhances such credibility because it only shows that he
has not been rehearsed. However, when the inconsistencies pertain to material
and crucial points, the same detract from his overall credibility.
6. ID.; ID.; TESTIMONY OF ACCUSED; GIVEN CREDENCE. — We are
constrained to give more credibility to the testimony of appellant Rodrigueza.
While it is true that appellant's defense amounts to an alibi, and as such is the
weakest defense in a criminal prosecution, there are, nonetheless, some
evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit
of Arrest corroborates his testimony that he was not among those who were
arrested on the night of July 1, 1987. His co-accused Segovia also testified that
appellant Rodrigueza was not with them when they were apprehended by the
NARCOM agents. Secondly, the apparent motive of the NARCOM agents in
prosecuting the accused was also revealed during the trial of the case. Rebuttal
witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of
Samuel Segovia, testified that Sgt. Moliñawe, who has since been reportedly
dismissed from the service, asked for P10,000.00 from each of them in exchange
for the liberty of the accused. This allegation was never refuted by the
prosecution.
7. ID.; ID.; PROOF REQUIRED IN CRIMINAL CASES; BEYOND REASONABLE
DOUBT NOT ESTABLISHED IN CASE AT BAR. — The Court has repeatedly
ruled that to sustain the conviction of the accused, the prosecution must rely on
the strength of its own evidence and not on the weakness of the defense. As
clearly shown by the evidence, the prosecution has failed to establish its cause. It
has not overcome the presumption of innocence accorded to appellant. This
being the case, appellant should not be allowed to suffer for unwarranted and
imaginary imputations against him.

DECISION

REGALADO, J : p

On appeal before us is the decision of the Regional Trial Court of Legaspi City,
Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable
doubt of violating Section 4, Article II of the Dangerous Drugs Act of
1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the
penalty of life imprisonment and to pay a fine of P20,000.00 and costs. 1
However, the Solicitor General, deviating from his conventional stance in the
prosecution of criminal cases, recommends the acquittal of appellant for the
reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed
with the Court. We have reviewed and analyzed the testimonial and documentary
evidence in this case and we find said recommendation to be well taken. cdrep

The information, dated July 10, 1987, charges Don Rodrigueza and his co-
accused, Samuel Segovia and Antonio Lonceras, with allegedly having in their
custody and possession 100 grams of marijuana leaves and for selling, in a buy-
bust operation, said 100 grams of dried marijuana leaves for a consideration of
P200.00. 2
During the arraignment, all the accused pleaded not guilty to the charge against
them. At the trial, the prosecution and the defense presented several witnesses
after which the court a quo rendered judgment acquitting Samuel Segovia and
Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore
stated.
The following facts are culled from the decision of the trial court and the evidence
presented by the prosecution.
At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was
in their headquarters at the Office of the Narcotics Regional Unit at Camp
Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Moliñawe, CIC
Leonardo B. Galutan and their commanding officer, Major Crisostomo M.
Zeidem, when a confidential informer arrived and told them that there was an
ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem
formed a team to conduct a buybust operation, which team was given P200.00 in
different denominations to buy marijuana. These bills were treated with ultraviolet
powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Moliñawe
gave the money to Taduran who acted as the poseur buyer. He was told to look
for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas
alone and, while along the road, he met Samuel Segovia. He asked Segovia
where he could find Don and where he could buy marijuana. Segovia left for a
while and when he returned, he was accompanied by a man who was later on
introduced to him as Don, herein appellant. 3

After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a
passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and
Segovia. When he came back, Don gave Taduran "a certain object wrapped in a
plastic" which was later identified as marijuana, and received payment therefor.
Thereafter, Taduran returned to the headquarters and made a report regarding
his said purchase of marijuana. 4
Based on that information, Major Zeidem ordered a team to conduct an operation
to apprehend the suspects. In the evening of the same date, CIC Galutan and
S/Sgt. Moliñawe proceeded to Regidor Street, Daraga, Albay and arrested
appellant, Antonio Lonceras and Samuel Segovia. The constables were not,
however, armed with a warrant of arrest when they apprehended the three
accused. The arrestees were brought to the headquarters for investigation. 5
Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in
the house of Jovencio Rodrigueza, father of appellant. Taduran did not go with
them. During the raid, they were able to confiscate dried marijuana leaves and a
plastic syringe, among others. The search, however, was not authorized by any
search warrant. 6
The next day, July 2, 1987, Jovencio Rodrigueza was released from detention
but appellant was detained. An affidavit, allegedly taken from and executed by
him, was sworn to by him before the assistant city prosecutor. Appellant
had no counsel when his sworn statement was taken during that custodial
investigation. The arrestees were also examined by personnel of the PCCL and
were found positive for ultraviolet powder. 7
The three accused presented different versions of their alleged participations.
Samuel Segovia testified that he was in their house in the evening of July 1, 1987
listening to the radio. Later, he ate his merienda and then went out to buy
cigarettes from the store. While he was at the store, a jeep stopped behind him.
Several armed men alighted therefrom and ordered him to get inside the jeep. He
refused but he was forced to board the vehicle. He was even hit by the butt of a
gun. 8
He was thereafter brought to Camp Bagong Ibalon where he was investigated
and was repeatedly asked regarding the whereabouts of Rodrigueza. He was
manhandled by the NARCOM agents and was detained while inside the camp.
He was then made to hold a P10.00 bill treated with ultraviolet powder. When he
was taken to the PCCL and examined, he was found positive of the ultraviolet
powder. He was also made to sign some papers but he did not know what they
were all about. 9
Appellant, on the other hand, testified that on said date he was in the house of
his aunt in San Roque, Legaspi City. He stayed there overnight and did not leave
the place until the next day when his brother arrived and told him that their father
was taken by some military men the preceding night. Appellant went to Camp
Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of July 2,
1987. When he arrived, he was asked if he knew anything about the marijuana
incident, to which question he answered in the negative. Like Segovia, he was
made to hold a P10.00 bill and was brought to the crime laboratory for
examination. From that time on, he was not allowed to go home and was
detained inside the camp. He was also tortured in order to make him admit his
complicity in the alleged sale of marijuana. 1 0
In the assignment of errors in his brief, appellant contends that the trial court
erred in (1) admitting in evidence the sworn statement of appellant which was
obtained in violation of his constitutional rights; (2) convicting appellant of the
crime charged despite the fact that the 100 grams of dried marijuana leaves
allegedly bought from him were not properly identified; (3) convicting appellant of
the crime charged despite the fact that the evidence for the prosecution is weak
and not convincing; and (4) finding appellant guilty beyond reasonable doubt of
selling or at least acting as broker in the sale of the 100 grams of marijuana to
CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the
prosecution to prove his guilt beyond reasonable doubt. 11
We rule for the appellant and approve the recommendation for his acquittal. In
disposing of this case, however, we feel that the issues raised by appellant
should properly be discussed seriatim.
1. A buy-bust operation is a form of entrapment employed by peace officers to
trap and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the
term in flagrante delicto requires that the suspected drug dealer must be caught
redhanded in the act of selling marijuana or any prohibited drug to a person
acting or posing as a buyer.
In the instant case, however, the procedure adopted by the NARCOM agents
failed to meet this qualification. Based on the very evidence of the prosecution,
after the alleged consummation of the sale of dried marijuana leaves, CIC
Taduran immediately released appellant Rodrigueza instead of arresting and
taking him into his custody. This act of CIC Taduran, assuming arguendo that the
supposed sale of marijuana did take place, is decidedly contrary to the natural
course of things and inconsistent with the aforestated purpose of a buy-bust
operation. It is rather absurd on his part to let appellant escape without having
been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty
by an agent of the law.
2. The admissibility of the sworn statement allegedly executed by appellant was
squarely placed in issue and, as correctly pointed out by the defense, said sworn
statement is inadmissible in evidence against appellant.
We have once again to reiterate and emphasize that Article III of the 1987
Constitution provides:
"Sec. 12 (1). Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent
and to have a competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and
in the presence of counsel.
xxx xxx xxx
 (3) Any confession or admission obtained in violation of this or section
17 hereof shall be inadmissible in evidence against him."
An examination of said sworn statement shows that appellant was informed of
his constitutional right to remain silent and to be assisted by counsel during
custodial examination. He was also asked if he was waiving his right to be
assisted by counsel and he answered in the affirmative. However, while the
rights of a person under custodial investigation may be waived, such waiver must
be made not only voluntarily, knowingly and intelligently but also in the presence
and with the assistance of counsel. 13 In the present case, the waiver made by
appellant being without the assistance of counsel, this omission alone is
sufficient to invalidate said sworn statement. 14
3. Corollary to this, we take cognizance of the error of the trial court in admitting
in evidence against appellant the articles allegedly confiscated during the raid
conducted in the house of Jovencio Rodrigueza. cdll

As provided in the present Constitution, a search, to be valid, must generally be

authorized by a search warrant duly issued by the proper government
authority. 15 True, in some instances, this Court has allowed government
authorities to conduct searches and seizures even without a search warrant.
Thus, 1) when the owner of the premises waives his right against such
incursion; 16 2) when the search is incidental to a lawful arrest; 17 3) when it is
made on vessels and aircraft for violation of customs laws; 18 4) when it is made
on automobiles for the purpose of preventing violations of smuggling or
immigration laws; 19 4) when it involves prohibited articles in plain view; 20 or 5) in
cases of inspection of buildings and other premises for the enforcement of fire,
sanitary and building regulations, 21 a search may be validly made even without a
search warrant.
In the case at bar, however, the raid conducted by the NARCOM agents in the
house of Jovencio Rodrigueza was not authorized by any search warrant. It does
not appear, either, that the situation falls under any of the aforementioned cases.
Hence, appellant's right against unreasonable search and seizure was clearly
violated. The NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the
prosecution witnesses reveal that the place had already been put under
surveillance for quite some time. Had it been their intention to conduct the raid,
then they should, because they easily could, have first secured a search warrant
during that time.
4. The Court further notes the confusion and ambiguity in the identification of the
confiscated marijuana leaves and other prohibited drug paraphernalia presented
as evidence against appellant.
CIC Taduran, who acted as the poseur buyer, testified that appellant sold him
100 grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly,
and no plausible explanation has been advanced therefor, what were submitted
to and examined by the PCCL and thereafter utilized as evidence against the
appellant were the following items:
"One (1) red and white colored plastic bag containing the following:
Exh. 'A' — Thirty (30) grams of suspected dried marijuana fruiting tops
contained inside a transparent plastic bag.
Exh. 'B' — Fifty (50) grams of suspected dried marijuana leaves and
seeds contained inside a white colored plastic labelled 'Robertson'.
Exh. 'C' — Four (4) aluminum foils each containing suspected dried
marijuana fruiting tops having a total weight of seven grams then further
wrapped with a piece of aluminum foil.

Exh. 'D' — Five (5) small transparent plastic bags each containing
suspected dried marijuana fruiting tops having a total weight of
seventeen grams.
Exh. 'E' — One plastic syringe." 22
Evidently, these prohibited articles were among those confiscated during the so-
called follow-up raid in the house of Jovencio Rodrigueza. The unanswered
question then arises as to the identity of the marijuana leaves that became the
basis of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the
occasion to rule that the plastic bag and the dried marijuana leaves contained
therein constitutes the corpus delicti of the crime. As such, the existence thereof
must be proved with certainty and conclusiveness. Failure to do so would be fatal
to the cause of the prosecution. cdphil

5. It is accepted that, as a rule, minor inconsistencies in the testimony of a

witness will not affect his credibility. It even enhances such credibility because it
only shows that he has not been rehearsed. 25 However, when the
inconsistencies pertain to material and crucial points, the same detract from his
overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly
pointed out by the Solicitor General, the testimonies of the prosecution witnesses
are tainted with serious flaws and material inconsistencies rendering the same
incredible. 26
CIC Taduran, in his testimony, said that they had already been conducting
surveillance of the place where the buy-bust operation was to take place. It
turned out, however, that he did not even know the exact place and the identity of
the person from whom he was to buy marijuana leaves. Thus:
"FISCAL TOLOSA:
Q What place in Tagas were you able to go (to)?
WITNESS.
A I am not actually familiar in (sic) that place, in Tagas, although we
occasionally passed there.
Q Now, upon your arrival in Tagas, what did you do that afternoon?
A I waited for the suspect because previously, we have already been
conducted (sic) surveylance (sic) in the vicinity.
Q Upon arrival in Tagas, were you able to see the suspect?
A By the road, sir.
Q Who was the first person did you see (sic) when you arrived at Tagas?
A The first person whom I saw is Samuel Segovia.
Q Were you able to talk with this Samuel Segovia?
A According to him, we could get some." 27
The same findings go for the testimony of witness Galutan. In his direct
examination, he declared that they arrested the three accused all at the same
time on the fateful night of July 1, 1987. But, in his cross-examination and as
corroborated by the Joint Affidavit of Arrest 28 submitted by him and Moliñawe, it
appeared that Lonceras and Segovia were arrested on different times and that
appellant Don Rodrigueza was not among those who were arrested. Instead, it
was Jovencio Rodrigueza, Don's father, who was picked up at a much later time.
With said inconsistencies in sharp focus, we are constrained to give more
credibility to the testimony of appellant Rodrigueza. While it is true that
appellant's defense amounts to an alibi, and as such is the weakest defense in a
criminal prosecution, there are, nonetheless, some evidentiary aspects pointing
to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his
testimony that he was not among those who were arrested on the night of July 1,
1987. His co-accused Segovia also testified that appellant Rodrigueza was not
with them when they were apprehended by the NARCOM agents.
Secondly, the apparent motive of the NARCOM agents in prosecuting the
accused was also revealed during the trial of the case. Rebuttal witnesses
Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel
Segovia, testified that Sgt. Moliñawe, who has since been reportedly dismissed
from the service, asked for P10,000.00 from each of them in exchange for the
liberty of the accused. 29 This allegation was never refuted by the prosecution.
Hence, the rule laid down by this Court that the statements of prosecution
witnesses are entitled to full faith and credit 30 has no application in the case at
bar.
Finally, the Court has repeatedly ruled that to sustain the conviction of the
accused, the prosecution must rely on the strength of its own evidence and not
on the weakness of the defense. 31 As clearly shown by the evidence, the
prosecution has failed to establish its cause. It has not overcome the
presumption of innocence accorded to appellant. This being the case, appellant
should not be allowed to suffer for unwarranted and imaginary imputations
against him.
WHEREFORE, the judgment of conviction of the court below is hereby
REVERSED and SET ASIDE and accused-appellant Don Rodrigueza is hereby
ACQUITTED of the crime charged. It is hereby ordered that he be immediately
released from custody unless he is otherwise detained for some other lawful
cause.
SO ORDERED.
||| (People v. Rodrigueza, G.R. No. 95902, [February 4, 1992], 282 PHIL 829-842)

Go. Vs. Court of Appeals [G.R. No. 101837, February 11, 1992]

[G.R. No. 101837. February 11, 1992.]

ROLITO GO y
TAMBUNTING, petitioner, vs. THE COURT OF APPEALS; THE
HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M.; and PEOPLE OF THE
PHILIPPINES, respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST

UNDER SEC. 5, RULE 113, NOT APPLICABLE IN CASE AT BAR. —We do not
believe that the warrantless "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal
Procedure which provides as follows: "Sec. 5. Arrest without warrant; when
lawful. — A peace officer or a private person may, without a warrant, arrest a
person: (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense; (b) When an offense
has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and (c) When the
person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to
another. In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7." Petitioner's "arrest" took place six (6) days after the
shooting of Maguan. The arresting officers obviously were not present, within the
meaning of Section 5(a), at the time petitioner had allegedly shot Maguan.
Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within
the meaning of Section 5 (b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who had
shot Maguan. The information upon which the police acted had been derived
from statements made by alleged eyewitnesses to the shooting -- one stated that
petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name.
That information did not, however, constitute "personal knowledge." It is thus
clear to the Court that there was no lawful warrantless arrest of petitioner within
the meaning of Section 5 of Rule 113.
2. ID.; ID.; ID.; ACCUSED ENTITLED TO A PRELIMINARY INVESTIGATION
WITHOUT ANY CONDITIONS. — Petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he in
fact placed himself at the disposal of the police authorities. He did not state that
he was "surrendering" himself, in all probability to avoid the implication he was
admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule
112 was applicable and required petitioner to waive the provisions of Article
125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without
any conditions. Moreover, since petitioner had not been arrested, with or without
a warrant, he was also entitled to be released forthwith subject only to his
appearing at the preliminary investigation.
3. ID.; ID.; ID.; RIGHT TO PRELIMINARY INVESTIGATION; NO WAIVER
THEREOF MADE IN CASE AT BAR. — Turning to the second issue of whether
or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation
be conducted. As earlier pointed out, on the same day that the information for
murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor
an omnibus motion for immediate release and preliminary investigation. The
Solicitor General contends that that omnibus motion should have been filed with
the trial court and not with the Prosecutor, and that petitioner should accordingly
be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be
predicated on such a slim basis. The preliminary investigation was to be
conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the
time of filing of petitioner's omnibus motion, the information for murder had
already been filed with the Regional Trial Court: it is not clear from the record
whether petitioner was aware of this fact at the time his omnibus motion was
actually filed with the Prosecutor. Nonetheless, since petitioner in his omnibus
motion was asking for preliminary investigation and not for a re-investigation and
since the Prosecutor himself did file with the trial court, on the 5th day after filing
the information for murder, a motion for leave to conduct preliminary investigation
(attaching to his motion a copy of petitioner's omnibus motion), we conclude that
petitioner's omnibus motion was in effect filed with the trial court. What was
crystal clear was that petitioner did ask for a preliminary investigation on the very
day that the information was filed without such preliminary investigation, and that
the trial court was five (5) days later apprised of the desire of the petitioner for
such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on
the (mistaken) supposition apparently made by the Prosecutor that Section
7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary
period in Section 7, Rule 112 must be held to have been substantially complied
with. We believe and so hold that petitioner did not waive his right to a
preliminary investigation. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment. In the instant case, petitioner Go had vigorously insisted on
his right to preliminary investigation before his arraignment. We do not believe
that by posting bail, petitioner had waived his right to preliminary investigation.
Petitioner Go asked for release on recognizance or on bail and for preliminary
investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
4. ID.; ID.; ID.; ID.; A SUBSTANTIVE RIGHT AND A COMPONENT
PART OF DUE PROCESS. — While the right to a preliminary investigation is
statutory rather than constitutional in its fundament, since it has in fact been
established by statute, it is a component part of due process in criminal justice.
The right to have a preliminary investigation conducted before being bound over
to trial for a criminal offense and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a substantive right. The
accused in a criminal trial is inevitably exposed to prolonged anxiety,
aggravation, humiliation, not to speak of expense; the right to an opportunity to
avoid a process painful to any one save, perhaps, to hardened criminals, is a
valuable right. To deny petitioner's claim to a preliminary investigation would be
to deprive him of the full measure of his right to due process.
5. ID.; ID.; FAILURE TO ACCORD PRELIMINARY INVESTIGATION DOES NOT
IMPAIR VALIDITY OF INFORMATION FILED. — Contrary to petitioner's
contention the failure to accord preliminary investigation, while constituting a
denial of the appropriate and full measure of the statutory process of criminal
justice, did not impair the validity of the information for murder nor affect the
jurisdiction of the trial court.
6. ID.; ID.; ACCUSED ENTITLED TO PRELIMINARY INVESTIGATION EVEN
THOUGH TRIAL ON THE MERITS HAS ALREADY BEGAN. — We consider that
petitioner remains entitled to a preliminary investigation although trial on the
merits has already began. Trial on the merits should be suspended or held in
abeyance and a preliminary investigation forthwith accorded to petitioner. The
constitutional point is that petitioner was not accorded what he was entitled to by
way of procedural due process. Petitioner was forced to undergo arraignment
and literally pushed to trial without preliminary investigation, with extraordinary
haste, to the applause from the audience that filled the courtroom. If he submitted
to arraignment and trial, petitioner did so "kicking and screaming," in a
manner of speaking. During the proceedings held before the trial court on 23
August 1991, the date set for arraignment of petitioner, and just before
arraignment, counsel made very clear petitioner's vigorous protest and objection
to the arraignment precisely because of the denial of preliminary investigation.
7. ID.; ID.; ACCUSED ENTITLED TO BE RELEASED ON BAIL AS A
MATTER OF RIGHT. — In respect of the matter of bail, petitioner remains
entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for
cancellation of petitioner's bail. It would then be up to the trial court, after a
careful and objective assessment of the evidence on record, to grant or deny the
motion for cancellation of bail. It must also be recalled that the Prosecutor had
actually agreed that petitioner was entitled to bail. This was equivalent to an
acknowledgment on the part of the Prosecutor that the evidence of guilt then in
his hands was not strong. Accordingly, we consider that the 17 July 1991
order of respondent Judge recalling his own order granting bail and requiring
petitioner to surrender himself within forty-eight (48) hours from notice, was
plainly arbitrary considering that no evidence at all — and
certainly no new or additional evidence — had been submitted to respondent
Judge that could have justified the recall of his order issued just five (5) days
before.

8. ID.; ID.; RELIANCE ON THE CASE OF UMIL v. RAMOS, MISPLACED;

OFFENSE COMMITTED NOT CONSIDERED A "CONTINUING CRIME." — The
reliance of both petitioner and the Solicitor General upon Umil v.
Ramos (G.R. No. 81567, promulgated 3 October 1991) is, in the
circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote,
the Court sustained the legality of the warrantless arrests of petitioners made
from one (1) to fourteen (14) days after the actual commission of the offenses,
upon the ground that such offenses constituted "continuing crimes." Those
offenses were subversion, membership in an outlawed organization like the New
Peoples Army, etc. In the instant case, the offense for which petitioner was
arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
9. CONSTITUTIONAL LAW; STATE SHOULD REAFFIRM ITS OBLIGATION TO
RESPECT THE RIGHTS AND LIBERTIES OF ITS CONSTITUENTS; TO
ACCORD AN ACCUSED HIS RIGHT TO A PRELIMINARY INVESTIGATION
AND TO BAIL IN CASE AT BAR, NOT AN IDLE CEREMONY. — To reach any
other conclusion here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently
admitted into the record would be to legitimize the deprivation of due process and
to permit the Government to benefit from its own wrong or culpable omission and
effectively to dilute important rights of accused persons well-nigh to the vanishing
point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be
largely a ceremonial exercise. But the Court is not compelled to speculate. And,
in any case, it would not be idle ceremony; rather it would be a celebration by the
State of the rights and liberties of its own people and a re-affirmation of its
obligation and determination to respect those rights and liberties.

DECISION
FELICIANO, J : p

According to the findings of the San Juan Police in their Investigation

Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St.,
San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered
Wilson St., where it is a one-way street and started travelling in the opposite or
"wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's
and Maguan's cars nearly bumped each other. Petitioner alighted from his car,
walked over and shot Maguan inside his car. Petitioner then boarded his car and
left the scene. A security guard at a nearby restaurant was able to take down
petitioner's car plate number. The police arrived shortly thereafter at the
scene of the shooting and there retrieved an empty shell and one round of live
ammunition for a 9mm caliber pistol. Verification at the Land Transportation
Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out
where the suspect had come from; they were informed that petitioner had dined
at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a
picture of petitioner and he positively identified him as the same person who had
shot Maguan. Having established that the assailant was probably the petitioner,
the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station
to verify news reports that he was being hunted by the police; he was
accompanied by two (2) lawyers. The police forthwith detained him. An
eyewitness to the shooting, who was at the police station at that time, positively
identified petitioner as the gunman. That same day, the police promptly filed a
complaint for frustrated homicide 2 against petitioner with the Office of the
Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa
Ignacio ("Prosecutor") informed petitioner, in the Presence of his lawyers, that he
could avail himself of his right to preliminary investigation but that he must first
sign a waiver of the provisions of Article 125 of the Revised Penal Code.
Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an
information could be filed in court, the victim, Eldon Maguan, died of his gunshot
wound(s). prcd

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for

frustrated homicide, filed an information for murder 3 before the Regional
Trial Court. No bail was recommended. At the bottom of the information, the
Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the
provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with
the prosecutor an omnibus motion for immediate release and proper preliminary
investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and
that no preliminary investigation had been conducted before the information was
filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being
granted provisional liberty on a cash bond of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in
order to expedite action on the Prosecutor's bail recommendation. The case was
raffled to the sala of respondent Judge, who, on the same date, approved the
cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact
released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for
leave to conduct preliminary investigation 8 and prayed that in the meantime all
proceedings in the court be suspended. He stated that petitioner had filed before
the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate
release and preliminary investigation, which motion had been granted by
Provincial Prosecutor Mauro Castro, who also agreed to recommend cash
bail of P100,000.00. The Prosecutor attached to the motion for leave a
copy of petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct
preliminary investigation and cancelling the arraignment set for 15 August 1991
until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an
Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail
was recalled; petitioner was given 48 hours from receipt of the Order to surrender
himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to
conduct preliminary investigation was recalled and cancelled; (3) petitioner's
omnibus motion for immediate release and preliminary investigation
dated 11 July 1991 was treated as a petition for bail and set for hearing on 23
July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and
mandamus before the Supreme Court assailing the 17 July 1991 Order,
contending that the information was null and void because no preliminary
investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case
pending resolution by the Supreme Court of his petition; this motion was,
however, denied by respondent Judge. LLphil

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition
for certiorari, prohibition and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the
arraignment of petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain
his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the
Provincial Warden of Rizal to admit petitioner into his custody at the Rizal
Provincial Jail. On the same date, petitioner was arraigned. In view,
however, of his refusal to enter a plea, the trial court entered for him a plea of not
guilty. The trial court then set the criminal case for continuous hearings on 19, 24
and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22
November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in
the Court of Appeals. He alleged that in view of public respondents' failure to join
issues in the petition for certiorari earlier filed by him, after the lapse of more than
a month, thus prolonging his detention, he was entitled to be released on habeas
corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas
corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand,
and the petition for habeas corpus, upon the other, were subsequently
consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying
petitioner's motion to restrain his arraignment on the ground that motion had
become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the
prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated
decision 14 dismissing the two (2) petitions, on the following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which
he was arrested and charged had been "freshly committed." His identity
had been established through investigation. At the time he showed up at
the police station, there had been an existing manhunt for him. During
the confrontation at the San Juan Police Station, one witness positively
identified petitioner as the culprit.
 b. Petitioner's act of posting bail constituted waiver of any irregularity
attending his arrest. He waived his right to preliminary investigation by
not invoking it properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July
1991 Order because the trial court had the inherent power to amend and
control its processes so as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a
valid commitment order (issued by the trial judge after petitioner
surrendered to the authorities whereby petitioner was given to the
custody of the Provincial Warden), the petition for habeas corpus could
not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the
trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the
trial court, with petitioner's conformity.
On 4 October 1991, the present petition for Review on Certiorari was filed. On 14
October 1991, the Court issued a Resolution directing respondent Judge to held
in abeyance the hearing of the criminal case below until further orders from
this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first,
whether or not a lawful warrantless arrest had been effected by the San Juan
Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim. LLphil

In respect of the first issue, the Solicitor General argues that under the
facts of the case, petitioner had been validly arrested without warrant. Since
petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991
had been sufficiently established by police work, petitioner was validly arrested
six (6) days later at the San Juan Police Station. The Solicitor General
invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7)
cases consolidated with In the Matter of the Petition for Habeas
Corpus of Roberto Umil, etc. v. Ramos et al., 17 where a
majority of the Court upheld a warrantless arrest as valid although effected
fourteen (14) days after the killing in connection with which Nazareno had been
arrested. Accordingly, in the view of the Solicitor General, the
provisions of Section 7, Rule 112 of the Rules of Court were applicable and
because petitioner had declined to waive the provisions of Article 125 of the
Revised Penal Code, the Prosecutor was legally justified in filing the information
for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without
warrant because he went to the police station six (6) days after the shooting
which he had allegedly perpetrated. Thus, petitioner argues, the crime had not
been "just committed" at the time that he was arrested. Moreover, none of the
police officers who arrested him had been an eyewitness to the
shooting of Maguan and accordingly none had the "personal knowledge"
required for the lawfulness of a warrantless arrest. Since there had
been no lawful warrantless arrest, Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary
investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is,
in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six
vote, the Court sustained the legality of the warrantless arrests of petitioners
made from one (1) to fourteen (14) days after the actual commission of the
offenses, upon the ground that such offenses constituted "continuing crimes."
Those offenses were subversion, membership in an outlawed organization like
the New Peoples Army, etc. In the instant case, the offense for which petitioner
was arrested was murder, an offense which was obviously commenced and
completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantless "arrest" or
detention of petitioner in the instant case falls within the terms of Section
5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as
follows:

"Sec. 5. Arrest without warrant; when lawful. — A peace officer or a

private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be created has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7."
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The
"arresting" officers obviously were not present, within the meaning of Section
 5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the
meaning of Section 5 (b). Moreover, none of the "arresting" officers had any
"personal knowledge" of facts indicating that petitioner was the gunman who
had shot Maguan. The information upon which the police acted had been
derived from statements made by alleged eyewitnesses to the shooting —
one stated that petitioner was the gunman; another was able to take down the
alleged gunman's car's plate number which turned out to be registered in
petitioner's wife's name. That information did not, however, constitute
"personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless
arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too
that Section 7 of Rule 112, which provides:
"Sec. 7. When accused lawfully arrested without warrant. — When a
person is lawfully arrested without a warrant for an offense cognizable by
the Regional Trial Court the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended
party or arresting office or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended, with
the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation
must be terminated within fifteen (15) days from its inception. Cdpr

If the case has been filed in court without a preliminary investigation

having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence in his favor in the
manner prescribed in this Rule." (Underscoring supplied).
is also not applicable. Indeed, petitioner was not arrested at all. When he
walked into the San Juan Police Station, accompanied by two (2) lawyers, he
in fact placed himself at the disposal of the police authorities. He did not state
that he was "surrendering" himself, in all probability to avoid the implication he
was admitting that he had slain Eldon Maguan or that he was otherwise
guilty of a crime. When the police filed a complaint for frustrated homicide with
the Prosecutor, the latter should have immediately scheduled a preliminary
investigation to determine whether there was probable cause for charging
petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier,
 the Prosecutor proceeded under the erroneous supposition that Section
7 of Rule 112 was applicable and required petitioner to waive the
provisions of Article 125 of the Revised Penal Code as a condition for carrying
out a preliminary investigation. This was substantive error, for petitioner was
entitled to a preliminary investigation and that right should have been
accorded him without any conditions. Moreover, since petitioner had not been
arrested; with or without a warrant, he was also entitled to be released
forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to
preliminary investigation, we note that petitioner had from the very beginning
demanded that a preliminary investigation be conducted. As earlier pointed out,
on the same day that the information for murder was filed with the Regional
Trial Court. Petitioner filed with the prosecutor an omnibus motion for immediate
release and preliminary investigation. The Solicitor General contends that
omnibus motion should have been filed with the trial court and not with the
Prosecutor, and that petitioner should accordingly be held to have waived his
right to preliminary investigation. We do not believe that waiver of petitioner's
statutory right to preliminary investigation may be predicated on such a slim
basis. The preliminary investigation was to be conducted by the Prosecutor, not
by the Regional Trial Court. It is true that at the time of filing of petitioner's
omnibus motion, the information for murder had already been filed with the
Regional Trial Court; it is not clear from the record whether petitioner was
aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:
"The preliminary investigation conducted by the fiscal for the
purpose of determining whether a prima facie case exists warranting the
prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said
information sets in motion the criminal action against the accused
in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the
permission of the Court must be secured. After such reinvestigation the
finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has
the quasi judicial discretion to determine whether or not a criminal case
should be filed in court or not, once the case had already been brought
to Court whatever disposition the fiscal may feel should be proper in the
case thereafter should be addressed for the consideration of the Court.
The only qualification is that the action of the Court must not impair the
substantial rights of the accused, or the right of the People to due
process of law.
xxx xxx xxx
 The rule therefore in this jurisdiction is that once a complaint or
information is filed in Court any disposition of the case [such] as its
dismissal or the conviction or acquittal of the accused rests in the sound
discretion of the Court. Although the fiscal retains the direction and
control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before
it. . . ." 20 (Citations omitted, underscoring supplied).
Nonetheless, since petitioner in his omnibus motion was asking for
preliminary investigation and not for a reinvestigation (Crespo v.
Mogul involved a re-investigation), and since the Prosecutor himself did file
with the trial court, on the 5th day after filing the information for murder, a
motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus
motion was in effect filed with the trial court. What was crystal clear was that
petitioner did ask for a preliminary investigation on the very day that the
information was filed without such preliminary investigation, and that the
trial court was five (5) days later apprised of the desire of the petitioner for
such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even
on the (mistaken) supposition apparently made by the Prosecutor that Section
7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary
period in Section 7, Rule 112 must be held to have been substantially
complied with. LexLib

We believe and so hold that petitioner did not waive his right to a preliminary
investigation. While that right is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component
part of due process in criminal justice. 20 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense
and hence formally at risk of incarceration or some other penalty, is not a mere
formal or technical right; it is a substantive right. The accused in a criminal trial is
inevitably exposed to prolonged anxiety, aggravation, humiliation, not to
speak of expense; the right to an opportunity to avoid a process painful to any
one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him of the full
measure of his right to due process.
The question may be raised whether petitioner still retains his right to a
preliminary investigation in the instant case considering that he was already
arraigned on 23 August 1991. The rule is that the right to preliminary
investigation is waived when the accused fails to invoke it before or at the
time of entering a plea at arraignment. 21 In the instant case, petitioner Go had
vigorously insisted on his right to preliminary investigation before his
arraignment. At the time of his arraignment, petitioner was already before
the Court of Appeals on certiorari, prohibition and mandamus precisely asking for
a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail,
petitioner had waived his right to preliminary investigation. In People v.
Selfaison, 22 we did hold that appellants there had waived their right to
preliminary investigation because immediately after their arrest, they filed bail
and proceeded to trial "without previously claiming that they did not have the
benefit of a preliminary investigation." 23 In the instant case, petitioner Go asked
for release on recognizance or on bail and for preliminary investigation in one
omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by
petitioner and ordered his release on 12 July 1991. Accordingly, we cannot
reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim
to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to
accord preliminary investigation, while constituting a denial of the appropriate
and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court. 24
It must also be recalled that the Prosecutor had actually agreed that petitioner
was entitled to bail. This was equivalent to an acknowledgment on the part of the
prosecutor that the evidence of guilt then in his hands was not strong.
Accordingly, we consider that the 17 July 1991 order of respondent Judge
recalling his own order granting bail and requiring petitioner to surrender himself
within forty-eight (48) hours from notice, was plainly arbitrary considering
that no evidence at all — and certainly no new or additional evidence — had
been submitted to respondent Judge that could have justified the recall of his
order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the
instant case, trial on the merits has already commenced, the Prosecutor having
already presented four (4) witnesses, impact upon, firstly, petitioner's right to a
preliminary investigation and secondly, petitioner's right to be released on bail?
Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released
on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner
remains entitled to a preliminary investigation although trial on the merits has
already began. Trial on the merits should be suspended or held in abeyance and
a preliminary investigation forthwith accorded to petitioner. 25 It is true that the
prosecutor might, in view of the evidence that he may at this time have on hand,
conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not
warrant a finding of probable cause. In any event, the constitutional point is that
petitioner was not accorded what he was entitled to by way of procedural due
process. 26 Petitioner was forced to undergo arraignment and literally pushed to
trial without preliminary investigation, with extraordinary haste, to the applause
from the audience that filled the courtroom. If he submitted to arraignment and
trial, petitioner did so "kicking and screaming," in a manner of speaking. During
the proceedings held before the trial court on 23 August 1991, the date set for
arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely
because of the denial of preliminary investigation. 27 So energetic and
determined were petitioner's counsel's protest and objection that an obviously
angered court and prosecutor dared him to withdraw or walkout, promising to
replace him with counsel de oficio. During the trial, just before the prosecution
called its first witness, petitioner through counsel once again reiterated his
objection to going to trial without preliminary investigation; petitioner's counsel
made or record his "continuing objection." 28 Petitioner had promptly gone to the
appellate court on certiorari and prohibition to challenge the lawfulness of the
procedure he was being forced to undergo and the lawfulness of his
detention. 29 If he did not walkout on the trial, and if he cross-examined the
Prosecution's witnesses, it was because he was extremely loath to be
represented by counsel de oficio selected by the trial judge, and to run the
risk of being held to have waived also his right to use what is frequently the only
test of truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner
remains entitled to be released on bail as a matter of right. Should the evidence
already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for
cancellation of petitioner's bail. It would then be up to the trial court, after a
careful and objective assessment of the evidence on record, to grant or deny the
motion for cancellation of bail.
To reach any other conclusion here, that is, to hold that petitioner's rights to a
preliminary investigation and to bail were effectively obliterated by evidence
subsequently admitted into the record would be to legitimize the
deprivation of due process and to permit the Government to benefit from its own
wrong or culpable omission and effectively to dilute important rights of accused
persons well-nigh to the vanishing point. It may be that to require the State to
accord petitioner his rights to a preliminary investigation and to bail at this
point, could turn out ultimately to be largely a ceremonial exercise. But
the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather it would be a celebration by the State of the rights and
liberties of its own people and a re-affirmation of its obligation and determination
to respect those rights and liberties.
ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on
Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE
and NULLIFIED, and the Decision of the Court of Appeals dated 23 September
1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith
a preliminary investigation of the charge of murder against petitioner Go, and to
complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the
Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a
cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release
shall be without prejudice to any lawful order that the trial court may issue, should
the Office of the Provincial Prosecutor move for cancellation of bail at the
conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
(Go y Tambunting v. Court of Appeals, G.R. No. 101837, [February 11, 1992],
|||

283 PHIL 24-58)

Posadas vs. Court of Appeals [G.R. No. 89139, August 2, 1990]

[G.R. No. 89139. August 2, 1990.]

ROMEO POSADAS y ZAMORA, petitioner, vs. THE

HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

Rudy G. Agravante for petitioner.

 SYLLABUS

1. REMEDIAL LAW; REVISED RULES ON CRIMINAL PROCEDURE; ARREST

WITHOUT WARRANT; SEC. 5, RULE 113 THEREOF. — From the foregoing
provision of law it is clear that an arrest without a warrant may be effected by a
peace officer or private person, among others, when in his presence the person
to be arrested has committed, is actually committing, or is attempting to commit
an offense; or when an offense has in fact just been committed, and he has
personal knowledge of the facts indicating that the person arrested has
committed it.
2. CONSTITUTIONAL LAW; BILL OF RIGHTS; WARRANTLESS SEARCH AND
SEIZURE; NOT INCIDENTAL TO A LAWFUL ARREST IN THE CASE AT BAR.
— The Solicitor General, in justifying the warrantless search and seizure of the
buri bag then carried by the petitioner, argued that when the two policemen
approached the petitioner, he was actually committing or had just committed the
offense of illegal possession of firearms and ammunitions in the presence of the
police officers and consequently the search and seizure of the contraband was
incidental to the lawful arrest in accordance with Section 12, Rule 126 of the
1985 Rules on Criminal Procedure. We disagree. At the time the peace officers
in this case identified themselves and apprehended the petitioner as he
attempted to flee they did not know that he had committed, or was actually
committing the offense of illegal possession of firearms and ammunitions. They
just suspected that he was hiding something in the buri bag. They did now know
what its contents were. The said circumstances did not justify an arrest without a
warrant.
3. ID.; ID.; ID.; CAN BE VALIDLY EFFECTED WITHOUT BEING PRECEDED
BY AN ARREST; CASE AT BAR. — However, there are many instances where a
warrant and seizure can be effected without necessarily being preceded by an
arrest, foremost of which is the "stop and search" without a search warrant at
military or police checkpoints, the constitutionality or validity of which has been
upheld by this Court in Valmonte vs. de Villa. As between a warrantless search
and seizure conducted at military or police checkpoints and the search thereat in
the case at bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of a probable
cause. The probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he was
concealing something illegal in the bag and it was the right and duty of the police
officers to inspect the same. It is too much indeed to require the police officers to
search the bag in the possession of the petitioner only after they shall have
obtained a search warrant for the purpose. Such an exercise may prove to be
useless, futile and much too late.
 DECISION

GANCAYCO, J : p

The validity of a warrantless search on the person of petitioner is put into issue in
this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab
and Pat. Umbra Umpar, both members of the Integrated National Police
(INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were
within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the
INP. Petitioner attempted to flee but his attempt to get away was thwarted by the
two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1)
caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2)
rounds of live ammunition for a .38 caliber gun, a smoke (tear gas) grenade a
2 3

and two (2) live ammunitions for a .22 caliber gun. They brought the petitioner to
4

the police station for further investigation. In the course of the same, the
petitioner was asked to show the necessary license or authority to possess
firearms and ammunitions found in his possession but he failed to do so. He was
then taken to the Davao Metrodiscom office and the prohibited articles recovered
from him were indorsed to M/Sgt. Didoy, the officer then on duty. He was
prosecuted for illegal possession of firearms and ammunitions in the Regional
Trial Court of Davao City wherein after a plea of not guilty and trial on the merits
a decision was rendered on October 8, 1987 finding petitioner guilty of the
offense charged as follows:
"WHEREFORE, in view of all the foregoing, this Court finds the accused
guilty beyond reasonable doubt of the offense charged.
It appearing that the accused was below eighteen (18) years old at the
time of the commission of the offense (Art. 68, par. 2), he is hereby
sentenced to an indeterminate penalty ranging from TEN (10) YEARS
and ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5)
months and Eleven (11) days of Reclusion Temporal, and to pay the
costs.
The firearm, ammunitions and smoke grenade are forfeited in
favor of the government and the Branch Clerk of Court is hereby
directed to turn over said items to the Chief, Davao Metrodiscom, Davao
City." 5
Not satisfied therewith the petitioner interposed an appeal to
the Court of Appeals wherein in due course a decision was rendered on February
23, 1989 affirming in toto the appealed decision with costs against the
petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there
being no lawful arrest or search and seizure, the items which were confiscated
from the possession of the petitioner are inadmissible in evidence against him. LexLib

The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 126 of the
Rules of Court a person lawfully arrested may be searched for dangerous
weapons or anything used as proof of a commission of an offense without a
search warrant. It is further alleged that the arrest without a warrant of the
petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as
follows:
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7. (6a, 17a)"
From the foregoing provision of law it is clear that an arrest without a warrant
may be effected by a peace officer or private person, among others, when in his
presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person
arrested has committed it.
The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of illegal
possession of firearms and ammunitions in the presence of the police officers
and consequently the search and seizure of the contraband was incidental to the
lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on
Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended
the petitioner as he attempted to flee they did not know that he had committed, or
was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag.
They did now know what its contents were. The said circumstances did not justify
an arrest without a warrant. llcd

However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop
and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by
this Court in Valmonte vs. de Villa, 7 as follows:
"Petitioner Valmonte's general allegation to the effect that he had been
stopped and searched without a search warrant by the military manning
the checkpoints, without more, i.e., without stating the details of the
incidents which amount to a violation of his right against unlawful search
and seizure, is not sufficient to enable the Court to determine whether
there was a violation of Valmonte's right against unlawful search and
seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to the
facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply looks
into a vehicle or flashes a light therein, these do not constitute
unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security measure to
enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the
public. Checkpoints may also be regarded as measures to thwart plots to
destabilize the government in the interest of public security. In this
connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police and military men by
NPA "sparrow units," not to mention the abundance of unlicensed
firearms and the alarming rise in lawlessness and violence in such urban
centers, not all of which are reported in media, most likely brought about
by deteriorating economic conditions — which all sum up to what one
can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote
 public welfare and an individual's right against a warrantless
search which is however reasonably conducted, the former should
prevail.

True, the manning of checkpoints by the military is susceptible of abuse

by the men in uniform in the same manner that all governmental power
is susceptible of abuse. But, at the cost of occasional inconvenience,
discomfort and even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits, are part of the
price we pay for an orderly society and a peaceful community.
(Emphasis supplied)."
Thus, as between a warrantless search and seizure conducted at military or
police checkpoints and the search thereat in the case at bar, there is no question
that, indeed, the latter is more reasonable considering that unlike in the former, it
was effected on the basis of a probable cause. The probable cause is that when
the petitioner acted suspiciously and attempted to flee with the buri bag there
was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search warrant
for the purpose. Such an exercise may prove to be useless, futile and much too
late.
In People vs. CFI of Rizal, 8 this Court held as follows:
". . . In the ordinary cases where warrant is indispensably necessary, the
mechanics prescribed by the Constitution and reiterated in the
Rules of Court must be followed and satisfied. But We need not argue
that there are exceptions. Thus in the extraordinary events where
warrant is not necessary to effect a valid search or seizure, or when the
latter cannot be performed except without warrant, what constitutes a
reasonable or unreasonable search or seizure becomes purely a judicial
question, determinable from the uniqueness of the circumstances
involved, including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched and the character of the articles
procured."
The Court reproduces with approval the following disquisition of the Solicitor
General: cdphil

"The assailed search and seizure may still be justified as akin to a "stop
and frisk" situation whose object is either to determine the identity of a
suspicious individual or to maintain the status quo momentarily while the
police officer seeks to obtain more information. This is illustrated in the
 case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men
repeatedly walked past a store window and returned to a spot where
they apparently conferred with a third man. This aroused the
suspicion of a police officer. To the experienced officer, the
behavior of the men indicated that they were sizing up the store for an
armed robbery. When the police officer approached the men and asked
them for their names, they mumbled a reply. Whereupon, the officer
grabbed one of them, spun him around and frisked him. Finding a
concealed weapon in one, he did the same to the other two and found
another weapon. In the prosecution for the offense of carrying a
concealed weapon, the defense of illegal search and seizure was put up.
The United States Supreme Court held that "a police officer may in
appropriate circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal behavior even
though there is no probable cause to make an arrest." In such a
situation, it is reasonable for an officer rather than simply to shrug his
shoulder and allow a crime to occur, to stop a suspicious individual
briefly in order to determine his identity or maintain the status quo while
obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under the
exceptions heretofore discussed, and hence, the constitutional
guarantee against unreasonable searches and seizures has not been
violated." 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
(Posadas y Zamora v. Court of Appeals, G.R. No. 89139, [August 2, 1990], 266
|||

PHIL 306-313)

People vs. Mengote [G.R. No. 87059, June 22, 1992]

[G.R. No. 87059. June 22, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. ROGELIO MENGOTE Y TEJAS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Violeta C. Drilon counsel de oficio for accused-appellant.

SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST ILLEGAL
SEARCH AND SEIZURE; EVIDENCE OBTAINED IN VIOLATION THEREOF;
EFFECT; CASE AT BAR. — It is submitted in the Appellant's Brief that the
revolver should not have been admitted in evidence because of its illegal
seizure, no warrant therefor having been previously obtained. Neither could it
have been seized as an incident of a lawful arrest because the arrest
of Mengote was itself unlawful, having been also effected without a warrant. The
defense also contends that the testimony regarding the alleged robbery in
Danganan's house was irrelevant and should also have been disregarded by the
trial court. There is no question that evidence obtained as a result of an illegal
search or seizure is inadmissible in any proceeding for any purpose. That is the
absolute prohibition of Article III, Section 3(2), of the Constitution. This is the
celebrated exclusionary rule based on the justification given by Judge Learned
Hand that "only in case the prosecution which itself controls the seizing officials,
knows that it cannot profit by their wrong will the wrong be repressed."
2. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;
WHEN LAWFUL; REQUISITES; NOT ESTABLISHED IN CASE AT BAR. — The
Solicitor General, while conceding the rule, maintains that it is not applicable in
the case at bar. His reason is that the arrest and search of Mengote and the
seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court. We have carefully examined the wording of this rule and cannot
see how we can agree with the prosecution. Par. (c) of Section 5 is obviously
inapplicable as Mengote was not an escapee from a penal institution when he
was arrested. We therefore confine ourselves to determining the lawfulness of
his arrest under either Par. (a) or Par. (b) of this section. Par. (a) requires that the
person be arrested (1) after he has committed or while he is actually committing
or is at least attempting to commit an offense, (2) in the presence of the arresting
officer. These requirements have not been established in the case at bar. At the
time of the arrest in question, the accused-appellant was merely "looking from
side to side" and "holding his abdomen," according to the arresting officers
themselves. There was apparently no offense that had just been committed or
was being actually committed or at least being attempted by Mengote in their
presence. Par. (b) is no less applicable because its no less stringent
requirements have also not been satisfied. The prosecution has not shown that
at the time of Mengote's arrest an offense had in fact just been committed and
that the arresting officers had personal knowledge of facts indicating
that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to be committed.

DECISION
CRUZ, J :p

Accused-appellant Rogelio Mengote was convicted of illegal possession of

firearms on the strength mainly of the stolen pistol found on his person at the
moment of his warrantless arrest. In this appeal, he pleads that the weapon was
not admissible as evidence against him because it had been illegally seized and
was therefore the fruit of the poisonous tree. The Government disagrees. It
insists that the revolver was validly received in evidence by the trial judge
because its seizure was incidental to an arrest that was doubtless lawful even if
admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western
Police District received a telephone call from an informer that there were three
suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard
in Tondo, Manila. A surveillance team of plainclothesmen was forthwith
dispatched to the place. As later narrated at the trial by Patrolmen Rolando
Mercado and Alberto Juan, 1 they there saw two men "looking from side to side,"
one of whom was holding his abdomen. They approached these persons and
identified themselves as policemen, whereupon the two tried to run away but
were unable to escape because the other lawmen had surrounded them. The
suspects were then searched. One of them, who turned out to be the accused-
appellant, was found with a .38 caliber Smith and Wesson revolver with six live
bullets in the chamber. His companion, later identified as Nicanor Morellos, had a
fan knife secreted in his front right pants pocket. The weapons were taken from
them. Mengote and Morellos were then turned over to police headquarters for
investigation by the Intelligence Division.LLpr

On August 11, 1987, the following information was filed against the accused-
appellant before the Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation
of Presidential Decree No. 1866, committed as follows:
That on or about August 8, 1987, in the City of Manila, Philippines, the
said accused did then and there wilfully, unlawfully and knowingly have
in his possession and under his custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T.
without first having secured the necessary license or permit therefor from
the proper authorities.
Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles
stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to
the police, indicating the articles stolen from him, including the revolver. 2 For his
part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "planted"
on him at the time of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A,
B and C and admitted over the objection of the defense. As previously stated, the
weapon was the principal evidence that led to Mengote's conviction for violation
of P.D. 1866. He was sentenced to reclusion perpetua. 4
It is submitted in the Appellant's Brief that the revolver should not have been
admitted in evidence because of its illegal seizure, no warrant therefor having
been previously obtained. Neither could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was itself unlawful, having been also
effected without a warrant. The defense also contends that the testimony
regarding the alleged robbery in Danganan's house was irrelevant and should
also have been disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
Sec. 3 (1). The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
There is no question that evidence obtained as a result of an illegal search or
seizure is inadmissible in any proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that
"only in case the prosecution, which itself controls the seizing officials, knows that
it cannot profit by their wrong will the wrong be repressed."
The Solicitor General, while conceding the rule, maintains that it is not applicable
in the case at bar. His reason is that the arrest and search of Mengote and the
seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court reading as follows:
 Sec. 5. Arrest without warrant; when lawful. — A peace officer or private
person may without a warrant, arrest a person: Cdpr

(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7.
We have carefully examined the wording of this rule and cannot see how we can
agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee
from a penal institution when he was arrested. We therefore confine ourselves to
determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.
Par. (a) requires that the person be arrested (1) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (2) in the
presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of
the arrest in question, the accused-appellant was merely "looking from side to
side" and "holding his abdomen," according to the arresting officers themselves.
There was apparently no offense that had just been committed or was being
actually committed or at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part
of the arresting officers and induced in them the belief that an offense had been
committed and that the accused-appellant had committed it." The question is,
What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly
forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote had been apprehended at an
ungodly hour and in a place where he had no reason to be, like a darkened alley
at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with his companion.
He was not skulking in the shadows but walking in the clear light of day. There
was nothing clandestine about his being on that street at that busy hour in the
blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them
innocent, why his eyes were darting from side to side and he was holding his
abdomen. If they excited suspicion in the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion
was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer that
there were "suspicious-looking" persons in that vicinity who were about to commit
a robbery at North Bay Boulevard. The caller did not explain why he thought the
men looked suspicious nor did he elaborate on the impending crime. LLpr

In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless
arrest of the accused because there was a bulge in his waist that excited the
suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the accused boarded a bus and
placed the buri bag she was carrying behind the seat of the arresting officer while
she herself sat in the seat before him. His suspicion aroused, he surreptitiously
examined the bag, which he found to contain marijuana. He then and there made
the warrantless arrest and seizure that we subsequently upheld on the ground
that probable cause had been sufficiently established.
The case before us is different because there was nothing to support the
arresting officers' suspicion other than Mengote's darting eyes and his hand on
his abdomen. By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the
warrantless arrest of the accused was unconstitutional. This was effected while
he was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was he actually committing
or attempting to commit an offense in the presence of the arresting officers. He
was not even acting suspiciously. In short, there was no probable cause that, as
the prosecution incorrectly suggested, dispensed with the constitutional
requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have
also not been satisfied. The prosecution has not shown that at the time
of Mengote's arrest an offense had in fact just been committed and that the
arresting officers had personal knowledge of facts indicating that Mengote had
committed it. All they had was hearsay information from the telephone caller, and
about a crime that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been
committed and neither were they aware of the participation therein of the
accused-appellant. It was only later, after Danganan had appeared at the police
headquarters, that they learned of the robbery in his house and of Mengote's
supposed involvement therein. 8 As for the illegal possession or the firearm found
on Mengote's person, the policemen discovered this only after he had been
searched and the investigation conducted later revealed that he was not its
owners nor was he licensed to possess it.
Before these events, the peace officers had no knowledge even of Mengote'
identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm
or that he was involved in the robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has
just committed, is committing, or is about to commit an offense must
have personal knowledge of the fact. The offense must also be
committed in is presence or within his view. (Sayo v. Chief of Police, 80
Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough
that there is reasonable ground to believe that the person to be arrested
has committed a crime. A crime must in fact or actually have been
committed first. That a crime has actually been committed is an
essential precondition. It is not enough to suspect that a crime may have
been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of
the perpetrator. (Emphasis supplied)
This doctrine was affirmed in Alih v. Castro, 10 thus:
If the arrest was made under Rule 113, Section 5, of the Rules of Court
in connection with a crime about to be committed, being committed, or
just committed, what was that crime? There is no allegation in the record
of such a justification. Parenthetically, it may be observed that under the
Revised Rule 113, Section 5(b), the officer making the arrest must have
personal knowledge of the ground therefor as stressed in the recent
case of People v. Burgos. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because
of a stomachache, or if a peace officer could clamp handcuffs on any person with
a shifty look on suspicion that he may have committed a criminal act or is actually
committing or attempting it. This simply cannot be done in a free society. This is
not a police state where order is exalted over liberty or, worse, personal malice
on the part of the arresting officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as
the ruling we here make is sufficient to sustain his exoneration. Without the
evidence of the firearm taken from him at the time of his illegal arrest, the
prosecution has lost its most important exhibit and must therefore fail. The
testimonial evidence against Mengote (which is based on the said firearm) is not
sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did
not have to file but did so just the same to stress the constitutional rights of her
client. The fact that she was acting only as a counsel de
oficio with no expectation of material reward makes her representation even
more commendable.
The Court feels that if the peace officers had been more mindful of the provisions
of the Bill of Rights, the prosecution of the accused-appellant might have
succeeded. As it happened, they allowed their over-zealousness to get the better
of them, resulting in their disregard of the requirements of a valid search and
seizure that rendered inadmissible the vital evidence they had invalidly seized. LLpr

This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the
clutches of the law because, ironically enough, it has not been observed by those
who are supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The
accused-appellant is ACQUITTED and ordered released immediately unless he
is validly detained for other offenses. No costs.
SO ORDERED.
(People v. Mengote y Tejas, G.R. No. 87059, [June 22, 1992], 285 PHIL 642-
|||

651)

Malacat vs. Court of Appeals [G.R. No. 123595, December 12, 1997]

[G.R. No. 123595. December 12, 1997.]

 SAMMY MALACAT y
MANDAR, petitioner, vs. COURT OF APPEALS, and
PEOPLE OF THE PHILIPPINES, respondents.

Brillantes, Navarro, Jumamil, Arcilla, Escolin and Martinez Law Offices for
petitioner.

SYNOPSIS

In an information filed before the Regional Trial Court (RTC) of Manila,

petitioner was charged with violating Section 3 of Presidential Decree No.
1866 for keeping, possessing and/or acquiring a hand grenade, without first
securing the necessary license and permit from the proper authorities. On
arraignment, petitioner, assisted by counsel de officio, entered a plea of not
guilty. After trial on the merits, the court a quo found petitioner guilty of the
crime of illegal possession of explosives under the said law and sentenced him to
suffer the penalty of not less than seventeen years, four months and one
day of reclusion temporal as minimum and not more than thirty years of reclusion
perpetua, as maximum. Petitioner filed a notice of appeal indicating that he was
appealing to the Supreme Court. However, the record of the case was forwarded
to the Court of Appeals. In its decision, the Court of Appeals affirmed the
trial court's decision. Unable to accept conviction, petitioner filed the instant
petition alleging that the respondent court erred in affirming the findings of the
trial court that the warrantless arrest of petitioner was valid and legal.
The Supreme Court finds the petition impressed with merit. For
purposes of determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into account. Since the
maximum of the penalty is reclusion perpetua, the appeal therefrom should have
been to the Court and not the Court of Appeals. Hence, the challenged decision
immediately fall in jurisdictional grounds. Additionally, the Court is convinced that
the prosecution failed to establish petitioner's guilt with moral certainty. First,
serious doubts surrounds the story of police office Yu that a grenade was found
in and seized from petitioner's possession. Notably, Yu did not identify
in court the grenade he allegedly seized. Second, if indeed petitioner had a
grenade with him and that two days earlier he was with the group about to
detonate an explosive at Plaza Miranda, it was then unnatural and against
common experience that petitioner simply stood in Plaza Miranda in proximity to
the police officers. Lastly, even assuming that petitioner admitted
possession of the grenade during his custodial investigation police officer
Serapio, such admission is inadmissible in evidence for it was taken in palpable
violation of Section 12(1) and (3) of Article III of the Constitution. Verily, the
search conducted on petitioner could not have been one incidental to a lawful
arrest. In view thereof, the challenged decision of the Court of Appeals is set
aside for lack of jurisdiction and on ground of reasonable doubt.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL TO THE

SUPREME COURT; FOR PURPOSES OF DETERMINING APPELLATE
JURISDICTION OF THE SUPREME COURT IN CRIMINAL CASES, THE
MAXIMUM OF THE PENALTY IMPOSABLE BY LAW IS TAKEN INTO
ACCOUNT AND NOT THE MINIMUM. — For purposes of determining appellate
jurisdiction in criminal cases, the maximum of the penalty, and not the minimum,
is taken into account. Since the maximum of the penalty is reclusion perpetua,
the appeal therefrom should have been to Supreme Court, and not
the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129), in relation to Section 17 of the Judiciary Act of 1948,
Section 5(2) of Article VIII of the Constitution and Section 3(c) of Rule
122 of the Rules of Court. The term life imprisonment as used in Section
9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be
deemed to include reclusion perpetua in view of Section 5(2) of Article
VIII of the Constitution.
2. ID.; ID.; RIGHTS OF THE ACCUSED; PETITIONER'S
ADMISSION OF POSSESSION OF THE GRENADE DURING CUSTODIAL
INVESTIGATION, WITHOUT THE ASSISTANCE OF COUNSEL,
INADMISSIBLE IN EVIDENCE. — Even assuming that petitioner admitted
possession of the grenade during his custodial investigation by police officer
Serapio, such admission was inadmissible in evidence for it was taken in
palpable violation of Section 12(1) and (3) of Article III of the Constitution.
Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer to
assist petitioner as no PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain silent and to
counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
3. ID.; ID.; WARRANTLESS ARREST; LACK OF PERSONAL
KNOWLEDGE ON THE PART OF THE ARRESTING OFFICER OR AN OVERT
PHYSICAL ACT ON THE PART OF THE ACCUSED, INDICATING THAT THE
CRIME HAD JUST BEEN COMMITTED, OR WAS GOING TO BE COMMITTED,
MAKES THE SEARCH CONDUCTED ON THE ACCUSED NOT ONE
INCIDENTAL TO A LAWFUL ARREST; CASE AT BAR. — In a search incidental
to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases,
e.g., whether an arrest was merely used as a pretext for conducting a search. In
this instance, the law requires that there first be a lawful arrest before a search
can be made — the process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the area
within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the
crime, or the fruit of the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or committing violence.
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu,
the arresting officer, or an overt physical act, on the part of petitioner, indicating
that a crime had just been committed, was being committed or was going to be
committed. Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one incidental to
a lawful arrest.
4. ID.; ID.; ID.; "STOP AND FRISK" AS A "LIMITED PROTECTIVE
SEARCH OF OUTER CLOTHING FOR WEAPONS"; JUSTIFICATION FOR AND
ALLOWABLE SCOPE THEREOF. — We now proceed to the justification for and
allowable scope of a "stop-and-frisk" as a "limited protective search of outer
clothing for weapons," as laid down in Terry, thus: We merely hold today that
where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where
in the course of investigating this behavior he identifies himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or others' safety, he is
entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable
search under the Fourth Amendment . . . Other notable points of Terry are that
while probable cause is not required to conduct a "stop and frisk," it nevertheless
holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer's experience and
surrounding conditions, to warrant the belief that the person detained has
weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold
interest: the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate
circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the person with
whom he deals is not armed with a deadly weapon that could unexpectedly and
fatally be used against the police officer.

DECISION

DAVIDE, JR., J : p

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748

before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner
Sammy Malacat y Mandar was charged with violating Section 3 of Presidential
Decree No. 1866, 2 as follows: LLjur

That on or about August 27, 1990, in the City of Manila,

Philippines, the said accused did then and there willfully, unlawfully and
knowingly keep, possess and/or acquire a hand grenade, without first
securing the necessary license and/or permit therefor from the proper
authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de
officio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits
"A," "A-1," and "A-2," 4 while the prosecution admitted that the police authorities
were not armed with a search warrant nor warrant of arrest at the time they
arrested petitioner. 5
At trial on the merits, the prosecution presented the following police
officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino C. Serapio,
the investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on
27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven
days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store
at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with
each group, comprised of three to four men, posted at opposite sides of the
corner of Quezon Boulevard near the Mercury Drug Store. These men were
acting suspiciously with "[t]their eyes . . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and
observed both groups for about thirty minutes. The police officers then
approached one group of men, who then fled in different directions. As the
policemen gave chase, Yu caught up with and apprehended petitioner. Upon
searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's
"front waist line." 7 Yu's companion, police officer Rogelio Malibiran,
apprehended Abdul Casan from whom a .38 caliber revolver was recovered.
Petitioner and Casan were then brought to Police Station No. 3 where Yu placed
an "X" mark at the bottom of the grenade and thereafter gave it to his
commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due
to a report that a group of Muslims was going to explode a grenade somewhere
in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous
Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2
others attempt to detonate a grenade. The attempt was aborted when Yu and
other policemen chased petitioner and his companions; however, the former
were unable to catch any of the latter. Yu further admitted that petitioner and
Casan were merely standing on the corner of Quezon Boulevard when Yu saw
them on 27 August 1990. Although they were not creating a commotion, since
they were supposedly acting suspiciously, Yu and his companions approached
them. Yu did not issue any receipt for the grenade he allegedly recovered from
petitioner. 9
Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990,
petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for
investigation. Forthwith, Serapio conducted the inquest of the two suspects,
informing them of their rights to remain silent and to be assisted by competent
and independent counsel. Despite Serapio's advice, petitioner and Casan
manifested their willingness to answer questions even without the assistance of a
lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there
being no PAO lawyer available, wherein petitioner admitted possession of the
grenade. Thereafter, Serapio prepared the affidavit of arrest and booking
sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordinance
Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's
confession knowing it was inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal
duties included, among other things, the examination of explosive devices,
testified that on 22 March 1991, he received a request dated 19 March 1991 from
Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade.
Ramilo then affixed an orange tag on the subject grenade detailing his name, the
date and time he received the specimen. During the preliminary
examination of the grenade, he "found that [the] major components
consisting of [a] high filler and fuse assembly [were] all present," and concluded
that the grenade was "[l]ive and capable of exploding." On even date, he issued
a certification stating his findings, a copy of which he forwarded to Diotoy on 11
August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in
Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At
around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch
a breath of fresh air. Shortly after, several policemen arrived and ordered all
males to stand aside. The policemen searched petitioner and two other men, but
found nothing in their possession. However, he was arrested with two others,
brought to and detained at Precinct No. 3, where he was accused of having shot
a police officer. The officer showed the gunshot wounds he allegedly sustained
and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted
the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who
shot me."
Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with
benches and guns. Petitioner was once again searched, but nothing was found
on him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner
was akin to a "stop and frisk," where a "warrant and seizure can be effected
without necessarily being preceded by an arrest" and "whose object is either to
maintain the status quo momentarily while the police officer seeks to obtain more
information." 15 Probable cause was not required as it was not certain that a
crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been "premature." 16 The RTC
emphasized that Yu and his companions were "[c]onfronted with an emergency,
in which the delay necessary to obtain a warrant, threatens the
destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner
and his companions were acting suspiciously, considering the time, place and
"reported cases of bombing." Further, petitioner's group suddenly ran away in
different directions as they saw the arresting officers approach, thus "[i]t is
reasonable for an officer to conduct a limited search, the purpose of which is not
necessarily to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner
was incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted
such fact to the police investigator for the purpose of bombing the Mercury Drug
Store," concluded that sufficient evidence existed to establish petitioner's guilt
beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February
1994, the trial court thus found petitioner guilty of the crime of illegal
possession of explosives under Section 3 of P.D. No. 1866, and sentenced him
to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR
(4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as
minimum, and not more than THIRTY (30) YEARS OF RECLUSION
PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that
he was appealing to this Court. However, the record of the case was forwarded
to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued
a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner
asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH
UPON THE PERSON OF ACCUSED-APPELLANT AND THE
SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM
"WAS AN APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE
AGAINST ACCUSED-APPELLANT THE HANDGRENADE
ALLEGEDLY SEIZED FROM HIM AS IT WAS A
PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to
absence of any of the conditions provided for in Section 5 of Rule
113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search was
illegal, and the hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with
the trial court and prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the
trial court, noting, first, that petitioner abandoned his original theory before
the court a quo that the grenade was "planted" by the police officers; and
second, the factual finding of the trial court that the grenade was seized from
petitioner's possession was not raised as an issue. Further,
respondent court focused on the admissibility in evidence of Exhibit "D," the hand
grenade seized from petitioner. Meeting the issue squarely,
the Court of Appeals ruled that the arrest was lawful on the ground that there was
probable cause for the arrest as petitioner was "attempting to commit an
offense," thus:
We are at a loss to understand how a man, who was in
possession of a live grenade and in the company of other suspicious
character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time
 when political tension ha[d] been enkindling a series of terroristic
activities, [can] claim that he was not attempting to commit an offense.
We need not mention that Plaza Miranda is historically notorious for
being a favorite bomb site especially during times of political upheaval.
As the mere possession of an unlicensed grenade is by itself an
offense, Malacat's posture is simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to
rebut the testimony of the prosecution witnesses that they received intelligence
reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner
two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and
his companions acted suspiciously, the "accumulation" of which was more than
sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be
guilty of gross negligence and dereliction of duty, not to mention of gross
incompetence, if they [would] first wait for Malacat to hurl the grenade,
and kill several innocent persons while maiming numerous others,
before arriving at what would then be an assured but moot conclusion
that there was indeed probable cause for an arrest. We are in agreement
with the lower court in saying that the probable cause in such a situation
should not be the kind of proof necessary to convict, but rather the
practical considerations of everyday life on which a reasonable and
prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v.
Mengote, 26 which petitioner relied upon, was inapplicable in light of "[c]rucial
differences," to wit:
[In Mengote] the police officers never received any intelligence
report that someone [at] the corner of a busy street [would] be in
possession of a prohibited article. Here the police officers were
responding to a [sic] public clamor to put a check on the
series of terroristic bombings in the Metropolis, and, after receiving
intelligence reports about a bomb threat aimed at the vicinity of the
historically notorious Plaza Miranda, they conducted foot patrols for
about seven days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no personal
knowledge that the person arrested has committed, is actually
committing, or is attempting to commit an offense. Here, PO3 Yu [had]
personal knowledge of the fact that he chased Malacat in Plaza Miranda
two days before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition
and assigns the following errors:
 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE
FINDING OF THE TRIAL COURT THAT THE WARRANTLESS
ARREST OF PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE
RULING IN PEOPLE VS. MENGOTE DOES NOT FIND
APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below
regarding the validity of the warrantless arrest and search, then disagrees with
the finding of the Court of Appeals that he was "attempting to commit a crime," as
the evidence for the prosecution merely disclosed that he was "standing at the
corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast"
and "looking at every person that come (sic) nearer (sic) to them." Finally,
petitioner points out the factual similarities between his case and
that of People v. Mengote to demonstrate that
the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.
For being impressed with merit, we resolved to give due course to the
petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS
AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not
more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who
shall unlawfully possess grenades is reclusion temporal in its maximum period
to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the
maximum of the penalty, and not the minimum, is taken into account. Since the
maximum of the penalty is reclusion perpetua, the appeal therefrom should have
been to us, and not the Court of Appeals, pursuant to Section
9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation
to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article
VIII of the Constitution 29 and Section 3(c) of Rule
122 of the Rules of Court. 30 The term "life imprisonment" as used in Section
9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be
deemed to include reclusion perpetua in view of Section 5(2) of Article
VIII of the Constitution.
 Petitioner's Notice of Appeal indicated that he was appealing from the
trial court's decision to this Court, yet the trial court transmitted the record to
the Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been
rendered without jurisdiction, and consider the appeal as having been directly
brought to us, with the petition for review as petitioner's Brief for the Appellant,
the comment thereon by the Office of the Solicitor General as the Brief for the
Appellee and the memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that
the prosecution failed to establish petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade
was found in and seized from petitioner's possession. Notably, Yu did not
identify, in court, the grenade he allegedly seized. According to him, he turned it
over to his commander after putting an "X" mark at its bottom; however, the
commander was not presented to corroborate this claim. On the other hand, the
grenade presented in court and identified by police officer Ramilo referred to
what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioner's arrest, but nearly seven (7) months later or on 19
March 1991; further, there was no evidence whatsoever that what Ramilo
received was the very same grenade seized from petitioner. In his testimony, Yu
never declared that the grenade passed on to Ramilo was the grenade the
former confiscated from petitioner. Yu did not, and was not made to, identify the
grenade examined by Ramilo, and the latter did not claim that the grenade he
examined was that seized from petitioner. Plainly, the law enforcement
authorities failed to safeguard and preserve the chain of evidence so crucial in
cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days
earlier he was with a group about to detonate an explosive at Plaza Miranda, and
Yu and his fellow officers chased, but failed to arrest them, then considering that
Yu and his three fellow officers were in uniform and therefore easily cognizable
as police officers, it was then unnatural and against common experience that
petitioner simply stood there in proximity to the police officers. Note that Yu
observed petitioner for thirty minutes and must have been close enough to
petitioner in order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade
during his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the
commission of an offense shall have the right to be informed of his
 right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the
presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day
following his arrest. No lawyer was present and Serapio could not have
requested a lawyer to assist petitioner as no PAO lawyer was then available.
Thus, even if petitioner consented to the investigation and waived his rights to
remain silent and to counsel, the waiver was invalid as it was not in writing,
neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the
arrest and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a
warrant is needed in order to validly effect the same. 31 The Constitutional
prohibition against unreasonable arrests, searches and seizures refers to those
effected without a validly issued warrant, 32 subject to certain exceptions. As
regards valid warrantless arrests, these are found in Section 5, Rule
113 of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful. — A peace officer or
a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped . . .
A warrantless arrest under the circumstances contemplated under Section
5(a) has been denominated as one "in flagrante delicto," while that under Section
5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain
view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6)
a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a
"stop and frisk" with "the seizure of the grenade from the accused [as] an
appropriate incident to his arrest," hence necessitating a brief discussion on the
nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-
and-frisk" and of a search incidental to a lawful arrest. These two
types of warrantless searches differ in terms of the requisite quantum of proof
before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines
the validity of the incidental search, the legality of the arrest is questioned in a
large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. 36 In this instance, the law requires that there
first be a lawful arrest before a search can be made — the process cannot be
reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search
the person of the arrestee and the area within which the latter may reach for a
weapon or for evidence to destroy, and seize any money or property found which
was used in the commission of the crime, or the fruit of the crime, or that which
may be used as evidence, or which might furnish the arrestee with the
means of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit
arrest preceding the search in light of the lack of personal knowledge on the
part of Yu, the arresting officer, or an overt physical act, on the part of petitioner,
indicating that a crime had just been committed, was being committed or was
going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one incidental to
a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-
frisk" as a "limited protective search of outer clothing for weapons," as laid down
in Terry; thus:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled for the protection of himself and
 others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might
be used to assault him. Such a search is a reasonable search under the
Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required
to conduct a "stop and frisk," 40 it nevertheless holds that mere suspicion or a
hunch will not validate a "stop and frisk." A genuine reason must exist, in
light of the police officer's experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about
him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general
interest of effective crime prevention and detection, which underlies the
recognition that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with a
deadly weapon that could unexpectedly and fatally be used against the police
officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was
invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a
member of the group which attempted to bomb Plaza Miranda two days earlier.
This claim is neither supported by any police report or record nor corroborated by
any other police officer who allegedly chased that group. Aside from impairing
Yu's credibility as a witness, this likewise diminishes the probability that a
genuine reason existed so as to arrest and search petitioner. If only to further
tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and
his companions had to be chased before being apprehended, the
affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five
(5) other police officers, petitioner and his companions were "immediately
collared."
Second, there was nothing in petitioner's behavior or conduct which could
have reasonably elicited even mere suspicion other than that his eyes were
"moving very fast" — an observation which leaves us incredulous since Yu and
his teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble, as Yu explicitly declared
on cross-examination: cdrep

Q And what were they doing?

A They were merely standing.
 Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not
create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or otherwise, to believe that
petitioner was armed with a deadly weapon. None was visible to Yu, for as he
admitted, the alleged grenade was "discovered" "inside the front
waistline" of petitioner, and from all indications as to the distance between Yu
and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a
grenade, could not have been visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they
were not yet aware that a handgrenade was tucked inside his waistline. They did
not see any bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's
rights solemnly guaranteed in Sections 2 and 12(1) of Article
III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth
Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for
lack of jurisdiction on the part of said Court and, on ground of reasonable doubt,
the decision of 10 February 1994 of Branch 5 of the Regional
Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y
MANDAR is hereby ACQUITTED and ORDERED immediately released from
detention, unless his further detention is justified for any other lawful cause.
SO ORDERED.
(Malacat y Mandar v. Court of Appeals, G.R. No. 123595, [December 12,
|||

1997], 347 PHIL 462-492)

People vs. Aminnudin [G.R. No. L-74869, July 6, 1988]

[G.R. No. 74869. July 6, 1988.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

IDEL AMINNUDIN y AHNI, defendant-appellant.
 The Solicitor General, for plaintiff-appellee.
Herminio T. Llariza counsel de-officio, for defendant-appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS AGAINST

UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS ARREST
AND SEIZURE BASED ON AN INFORMER'S TIP, AT A TIME WHEN
ACCUSED WAS NOT COMMITTING A CRIME, ILLEGAL; EVIDENCE
OBTAINED, INADMISSIBLE. — Where it is not disputed that the PC officers
had no warrant when they arrested Aminnudin while he was descending the
gangplank of the M/V Wilcon 9 and seized the bag he was carrying, and that
their only justification was the tip they had earlier received from a reliable and
regular informer who reported to them that Aminnudin was arriving in Iloilo by
boat with marijuana, the search was not an incident of a lawful arrest because
there was no warrant of arrest and warrantless arrest did not come under the
exceptions allowed by the Rules of Court. Hence, the warrantless search was
also illegal and the evidence obtained was inadmissible.
2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE INVOKED IN PRESENT
CASE TO DISPENSE WITH OBTENTION OF ARREST AND SEARCH
WARRANT. — The present case presented no such urgency. From the
conflicting declarations of the PC witnesses, it is clear that they had at least
two days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name
was known. The vehicle was identified. The date of its arrival was certain. And
from the information they had received, they could have persuaded a judge
that there was probable cause, indeed, to justify the issuance of a warrant.
Yet they did nothing. No effort was made to comply with the law. The Bill of
Rights was ignored altogether because the PC lieutenant who was the head
of the arresting team, had determined on his own authority that a "search
warrant was not necessary."
3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT BAR WAS NOT
COMMITTING A CRIME WHEN HE WAS ARRESTED. — In the case at bar,
the accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so.
What he was doing was descending the gangplank of the M/V Wilcon 9 and
there was no outward indication that called for his arrest. To all appearances,
he was like any of the other passengers innocently disembarking from the
vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension.
It was the furtive finger that triggered his arrest. The identification by the
 informer was the probable cause as determined by the officers (and not a
judge) that authorized them to pounce upon Aminnudin and immediately
arrest him.

DECISION

CRUZ, J :p

The accused-appellant claimed his business was selling watches but he

was nonetheless arrested, tried and found guilty of illegally transporting
marijuana. The trial court, disbelieving him, held it was high time to put him
away and sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after
disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo
City. The PC officers who were in fact waiting for him simply accosted him,
inspected his bag and finding what looked liked marijuana leaves took him to
their headquarters for investigation. The two bundles of suspect articles were
confiscated from him and later taken to the NBI laboratory for examination.
When they were verified as marijuana leaves, an information for violation of
the Dangerous Drugs Act was filed against him. 2 Later, the information was
amended to include Farida Ali y Hassen, who had also been arrested with him
that same evening and likewise investigated. 3 Both were arraigned and
pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the
charge against Ali on the basis of a sworn statement of the arresting officers
absolving her after a "thorough investigation." 5 The motion was granted, and
trial proceeded only against the accused-appellant, who was eventually
convicted. 6
According to the prosecution, the PC officers had earlier received a tip
from one of their informers that the accused-appellant was on board a vessel
bound for Iloilo City and was carrying marijuana. 7 He was identified by
name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984,
and approached him as he descended from the gangplank after the informer
had pointed to him. 9 They detained him and inspected the bag he was
carrying. It was found to contain three kilos of what were later analyzed as
marijuana leaves by an NBI forensic examiner, 10 who testified that she
conducted microscopic, chemical and chromatographic tests on them. On the
basis of this finding, the corresponding charge was then filed
against Aminnudin.
 In his defense, Aminnudin disclaimed the marijuana, averring that all he
had in his bag was his clothing consisting of a jacket, two shirts and two pairs
of pants. 11 He alleged that he was arbitrarily arrested and immediately
handcuffed. His bag was confiscated without a search warrant. At the PC
headquarters, he was manhandled to force him to admit he was carrying the
marijuana, the investigator hitting him with a piece of wood in the chest and
arms even as he parried the blows while he was still handcuffed. 12 He
insisted he did not even know what marijuana looked like and that his
business was selling watches and sometimes cigarettes. 13 He also argued
that the marijuana he was alleged to have been carrying was not properly
identified and could have been any of several bundles kept in the stock room
of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the
accused that he claimed to have come to Iloilo City to sell watches but carried
only two watches at the time, traveling from Jolo for that purpose and
spending P107.00 for fare, not to mention his other
expenses. 15 Aminnudin testified that he kept the two watches in a secret
pocket below his belt but, strangely, they were not discovered when he was
bodily searched by the arresting officers nor were they damaged as a result of
his manhandling. 1 6 He also said he sold one of the watches for P400.00 and
gave away the other, although the watches belonged not to him but to his
cousin, 17 to a friend whose full name he said did not even know. 18 The trial
court also rejected his allegations of maltreatment, observing that he had not
sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering
that it was the trial judge who had immediate access to the testimony of the
witnesses and had the opportunity to weigh their credibility on the stand.
Nuances of tone or voice, meaningful pauses and hesitation, flush of face and
dart of eyes, which may reveal the truth or expose the lie, are not described in
the impersonal record. But the trial judge sees all of this, discovering for
himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court's
conclusion that the accused-appellant was not really beaten up because he
did not complain about it later nor did he submit to a medical examination.
That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and
in fact has never been set free since he was arrested in 1984 and up to the
present. No bail has been allowed for his release.
There is one point that deserves closer examination, however, and it
is Aminnudin's claim that he was arrested and searched without warrant,
making the marijuana allegedly found in his possession inadmissible in
evidence against him under the Bill of Rights. The decision did not even
discuss this point. For his part, the Solicitor General dismissed this after an
all-too-short argument that the arrest of Aminnudin was valid because it came
under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests.
This made the search also valid as incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who
testified for the prosecution, that they had no warrant when they
arrested Aminnudin and seized the bag he was carrying. Their only
justification was the tip they had earlier received from a reliable and regular
informer who reported to them that Aminnudin was arriving in Iloilo by boat
with marijuana. Their testimony varies as to the time they received the tip, one
saying it was two days before the arrest, 20 another two weeks 21 and a third
"weeks before June 25." 22 On this matter, we may prefer the declaration of
the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follow:
"Q You mentioned an intelligence report, you mean with respect to the
coming of Idel Aminnudin on June 25, 1984?
"A Yes, sir.
"Q When did you receive this intelligence report?
"A Two days before June 25, 1984 and it was supported by reliable
sources.
"Q Were you informed of the coming of the Wilcon 9 and the possible
trafficking of marijuana leaves on that date?
"A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984
we have already reports of the particular operation which was
being participated by Idel Aminnudin.
"Q You said you received an intelligence report two days before June
25, 1984 with respect to the coming of Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this intelligence report?
"A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.
"COURT:
"Q Previous to that particular information which you said two days before
June 25, 1984, did you also receive any report regarding the
activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the activities of
Idel Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"Q From whom did you get that information?
"A It came to my hand which was written in a required sheet of
information, maybe for security reason and we cannot identify the
person.
"Q But you received it from your regular informer?
"A Yes, sir.
"ATTY. LLARIZA:
"Q Previous to June 25, 1984, you were more or less sure that
Idel Aminnudin is coming with drugs?
"A Marijuana, sir.
"Q And this information respecting Idel Aminnudin's coming to Iloilo with
marijuana was received by you many days before you received
the intelligence report in writing?
"A Not a report of the particular coming of Aminnudin but his activities.
"Q You only knew that he was coming on June 25, 1984 two days
before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know
that Aminnudin was coming?
"A Before June 23, 1984, I, in my capacity, did not know that he was
coming but on June 23, 1984 that was the time when I received
the information that he was coming. Regarding the reports on his
activities, we have reports that he has already consummated the
act of selling and shipping marijuana stuff.
"COURT:
"Q And as a result of that report, you put him under surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel Aminnudin was
mentioned?
"A Yes, sir.
"Q Are you sure of that?
 "A On the 23rd he will be coming with the woman.
"Q So that even before you received the official report on June 23, 1984,
you had already gathered information to the effect that
Idel Aminnudin was coming to Iloilo on June 25, 1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for the seizure or search of
the subject mentioned in your intelligence report?
"A No, more.
"Q Why not?
"A Because we were very very sure that our operation will yield positive
result.
"Q Is that your procedure that whenever it will yield positive result you do
not need a search warrant anymore?
"A Search warrant is not necessary." 23
That last answer is a cavalier pronouncement, especially as it comes
from a mere lieutenant of the PC. The Supreme Court cannot countenance
such a statement. This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
"Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
In the case at bar, there was no warrant of arrest or search warrant
issued by a judge after personal determination by him of the existence of
probable cause. Contrary to the averments of the government, the accused-
appellant was not caught in flagrante nor was a crime about to be committed
or had just been committed to justify the warrantless arrest allowed under
Rule 113 of the Rules of Court. Even expediency could not be invoked to
dispense with the obtention of the warrant as in the case of Roldan v.
Arca, 24 for example. Here it was held that vessels and aircraft are
subject to warrantless searches and seizures for violation of the
customs law because these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be secured.
 The present case presented no such urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two days
within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name
was known. The vehicle was identified. The date of its arrival was certain. And
from the information they had received, they could have persuaded a judge
that there was probable cause, indeed, to justify the issuance of a warrant.
Yet they did nothing. No effort was made to comply with the law. The Bill of
Rights was ignored altogether because the PC lieutenant who was the head
of the arresting team, had determined on his own authority that "search
warrant was not necessary."
In the many cases where this Court has sustained the warrantless
arrest of violators of the Dangerous Drugs Act, it has always been shown that
they were caught red-handed, as result of what are popularly called "buy-
bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable
because at the precise time of arrest the accused was in the act of selling the
prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his
arrest, committing a crime nor was it shown that he was about to do so or that
he had just done so. What he was doing was descending the gangplank of the
M/V Wilcon 9 and there was no outward indication that called for his arrest. To
all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as
the carrier of the marijuana that he suddenly became suspect and so subject
to apprehension. It was the furtive finger that triggered his arrest. The
identification by the informer was the probable cause as determined by the
officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.
Now that we have succeeded in restoring democracy in our country
after fourteen years of the despised dictatorship, when any one could be
picked up at will, detained without charges and punished without trial, we will
have only ourselves to blame if that kind of arbitrariness is allowed to return,
to once more flaunt its disdain of the Constitution and the individual liberties
its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for
indeed his very own words suggest that he is lying, that fact alone does not
justify a finding that he is guilty. The constitutional presumption is that he is
innocent, and he will be so declared even if his defense is weak as long as
the prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin,
the case of the prosecution must fall. That evidence cannot be admitted, and
 should never have been considered by the trial court for the simple fact is that
the marijuana was seized illegally. It is the fruit of the poisonous tree, to use
Justice Holmes' felicitous phrase. The search was not an incident of a lawful
arrest because there was no warrant of arrest and the warrantless arrest did
not come under the exceptions allowed by the Rules of Court. Hence, the
warrantless search was also illegal and the evidence obtained thereby was
inadmissible.
The Court strongly supports the campaign of the government against
drug addiction and commends the efforts of our law-enforcement officers
against those who would inflict this malediction upon our people, especially
the susceptible youth. But as demanding as this campaign may be, it cannot
be more so than the compulsions of the Bill of Rights for the protection of the
liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty
alike against any manner of high-handedness from the authorities, however
praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. Order is too high
a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less
evil that some criminal should escape than that the government should play
an ignoble part." It is simply not allowed in the free society to violate a law to
enforce another, especially if the law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as
evidence against the accused-appellant, his guilt has not been proved beyond
reasonable doubt and he must therefore be discharged on the presumption
that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the
accused-appellant is ACQUITTED. It is so ordered.
(People v. Aminnudin y Ahni, G.R. No. 74869, [July 6, 1988], 246 PHIL 424-
|||

435)
People vs. Malmstedt [G.R. No. 91107, June 19, 1991]

[G.R. No. 91107. June 19, 1991.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. MIKAEL MALMSTEDT, * defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-
appellant.

DECISION

PADILLA, J : p

In an information dated 15 June 1989, accused-appellant

Mikael Malmstedt (hereinafter referred to as the accused) was charged before
the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal
Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972, as amended.
The factual background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the
third time in December 1988 as a tourist. He had visited the country sometime in
1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival
thereat in the morning of the following day, he took a bus to Sagada and stayed
in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City.
From Baguio City, accused planned to take a late afternoon trip to Angeles City,
then proceed to Manila to catch his flight out of the country, scheduled on 13 May
1989. From Sagada, accused took a Skyline bus with body number 8005 and
Plate number AVC 902. 1
At about 8:00 o'clock in the morning of that same day (11 May 1989), Captain
Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM)
stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at
Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all
vehicles coming from the Cordillera Region. The order to establish a checkpoint
in the said area was prompted by persistent reports that vehicles coming from
Sagada were transporting marijuana and other prohibited drugs. Moreover,
information was received by the Commanding Officer of NARCOM, that same
morning, that a Caucasian coming from Sagada had in his possession prohibited
drugs. 2
The group composed of seven (7) NARCOM officers, in coordination with Tublay
Police Station, set up a checkpoint at the designated area at about 10:00 o'clock
in the morning and inspected all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was
stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they
were members of the NARCOM and that they would conduct an inspection. The
two (2) NARCOM officers started their inspection from the front going towards
the rear of the bus. Accused who was the sole foreigner riding the bus was
seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist.
Suspecting the bulge on accused's waist to be a gun, the officer asked for
accused's passport and other identification papers. When accused failed to
comply, the officer required him to bring out whatever it was that was bulging on
his waist. The bulging object turned out to be a pouch bag and when accused
opened the same bag, as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the officer to open one of the
wrapped objects. The wrapped objects turned out to contain hashish, a derivative
of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he
alighted from the bus, accused stopped to get two (2) travelling bags from the
luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A
teddy bear was found in each bag. Feeling the teddy bears, the officer noticed
that there were bulges inside the same which did not feel like foam stuffing. It
was only after the officers had opened the bags that accused finally presented
his passport.
Accused was then brought to the headquarters of the NARCOM at Camp
Dangwa, La Trinidad, Benguet for further investigation. At the investigation room,
the officers opened the teddy bears and they were found to also contain hashish.
Representative samples were taken from the hashish found among the personal
effects of accused and the same were brought to the PC Crime Laboratory for
chemical analysis.
In the chemistry report, it was established that the objects examined were
hashish, a prohibited drug which is a derivative of marijuana. Thus, an
information was filed against accused for violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense,
he raised the issue of illegal search of his personal effects. He also claimed that
the hashish was planted by the NARCOM officers in his pouch bag and that the
two (2) travelling bags were not owned by him, but were merely entrusted to him
by an Australian couple whom he met in Sagada. He further claimed that the
Australian couple intended to take the same bus with him but because there
were no more seats available in said bus, they decided to take the next ride and
asked accused to take charge of the bags, and that they would meet each other
at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his
passport and other identification papers, he handed to one of the officers his
pouch bag which was hanging on his neck containing, among others, his
passport, return ticket to Sweden and other papers. The officer in turn handed it
to his companion who brought the bag outside the bus. When said officer came
back, he charged the accused that there was hashish in the bag. He was told to
get off the bus and his picture was taken with the pouch bag placed around his
neck. The trial court did not give credence to accused's defense. LibLex

The claim of the accused that the hashish was planted by the NARCOM officers,
was belied by his failure to raise such defense at the earliest opportunity. When
accused was investigated at the Provincial Fiscal's Office, he did not inform the
Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his
bag. It was only two (2) months after said investigation when he told his lawyer
about said claim, denying ownership of the two (2) travelling bags as well as
having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4,
Art. II of RA 6425, as amended. 3 The dispositive portion of the decision reads as
follows:
"WHEREFORE, finding the guilt of the accused
Mikael Malmstedt established beyond reasonable doubt, this Court finds
him GUILTY of violation of Section 4, Article II of Republic Act 6425, as
amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos
(P20,000.00), with subsidiary imprisonment in case of insolvency and to
pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics
Regional Unit at Camp Bado; Dangwa, La Trinidad, Benguet for proper
disposition under Section 20, Article IV of Republic Act 425, as
amended.
SO ORDERED." 4
Seeking the reversal of the decision of the trial court finding him guilty of the
crime charged, accused argues that the search of his personal effects was illegal
because it was made without a search warrant and, therefore, the prohibited
drugs which were discovered during the illegal search are not admissible as
evidence against him.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures. 5 However, where the search is made pursuant to a lawful arrest, there
is no need to obtain a search warrant. A lawful arrest without a warrant may be
made by a peace officer or a private person under the following circumstances. 6
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in accordance with Rule 112,
Section 7. (6a, 17a)."
Accused was searched and arrested while transporting prohibited drugs
(hashish). A crime was actually being committed by the accused and he was
caught in flagrante delicto. Thus, the search made upon his personal effects falls
squarely under paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest. 7
While it is true that the NARCOM officers were not armed with a search warrant
when the search was made over the personal effects of accused, however, under
the circumstances of the case, there was sufficient probable cause for said
officers to believe that accused was then and there committing a crime. LLphil

Probable cause has been defined as such facts and circumstances which could
lead a reasonable, discreet and prudent man to believe that an offense has been
committed, and that the objects sought in connection with the offense are in the
place sought to be searched. 8 The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case. 9

Warrantless search of the personal effects of an accused has been declared by

this Court as valid, because of existence of probable cause, where the smell of
marijuana emanated from a plastic bag owned by the accused, 10 or where the
accused was acting suspiciously, 11 and attempted to flee. 12
Aside from the persistent reports received by the NARCOM that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs, their
Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension
of herein accused, that a Caucasian travelling from Sagada to Baguio City was
carrying with him prohibited drugs, there was no time to obtain a search warrant.
In the Tangliben case, 13 the police authorities conducted a surveillance at the
Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information
supplied by some informers. Accused Tangliben who was acting suspiciously
and pointed out by an informer was apprehended and searched by the
police authorities. It was held that when faced with on-the spot information,
the police officers had to act quickly and there was no time to secure a
search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a
routine check of the bus (where accused was riding) and the passengers therein,
and no extensive search was initially made. It was only when one of the officers
noticed a bulge on the waist of accused, during the course of the inspection, that
accused was required to present his passport. The failure of accused to present
his identification papers, when ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide from the authorities,
to readily present his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession, plus the suspicious failure of the accused
to produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In
other words, the acts of the NARCOM officers in requiring the accused to open
his pouch bag and in opening one of the wrapped objects found inside said bag
(which was discovered to contain hashish) as well as the two (2) travelling bags
containing two (2) teddy bears with hashish stuffed inside them, were prompted
by accused's own attempt to hide his identity by refusing to present his passport,
and by the information received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession. To deprive the NARCOM agents
of the ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the
trial court is hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
||| (People v. Malmstedt, G.R. No. 91107, [June 19, 1991], 275 PHIL 447-472)

Luz vs. People [G.R. No. 197788, February 29, 2012]

[G.R. No. 197788. February 29, 2012.]

RODEL LUZ y ONG, petitioner,vs.PEOPLE OF THE

PHILIPPINES, 1 respondent.

DECISION

SERENO, J : p

This is a Petition for Review on Certiorari under Rule 45 seeking to set

aside the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated
18 February 2011 2 and Resolution dated 8 July 2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC),which sustained the
version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-
Station 1 of the Naga City Police Station as a traffic enforcer,
substantially testified that on March 10, 2003 at around 3:00 o'clock in
the morning, he saw the accused, who was coming from the direction of
Panganiban Drive and going to Diversion Road, Naga City, driving a
motorcycle without a helmet; that this prompted him to flag down the
accused for violating a municipal ordinance which requires all motorcycle
drivers to wear helmet (sic) while driving said motor vehicle; that he
invited the accused to come inside their sub-station since the place
where he flagged down the accused is almost in front of the said sub-
station; that while he and SPO1 Rayford Brillante were issuing a citation
ticket for violation of municipal ordinance, he noticed that the accused
was uneasy and kept on getting something from his jacket; that he was
alerted and so, he told the accused to take out the contents of the pocket
of his jacket as the latter may have a weapon inside it; that the accused
 obliged and slowly put out the contents of the pocket of his jacket which
was a nickel-like tin or metal container about two (2) to three (3) inches
in size, including two (2) cellphones, one (1) pair of scissors and one (1)
Swiss knife; that upon seeing the said container, he asked the accused
to open it; that after the accused opened the container, he noticed a
cartoon cover and something beneath it; and that upon his instruction,
the accused spilled out the contents of the container on the table which
turned out to be four (4) plastic sachets, the two (2) of which were empty
while the other two (2) contained suspected shabu.3
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of
"Not guilty" to the charge of illegal possession of dangerous drugs. Pretrial was
terminated on 24 September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic
chemist testified for the prosecution. On the other hand, petitioner testified for
himself and raised the defense of planting of evidence and extortion.
In its 19 February 2009 Decision, 4 the RTC convicted petitioner of illegal
possession of dangerous drugs 5 committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested for a
traffic violation and then subjected to a valid search, which led to the discovery
on his person of two plastic sachets later found to contain shabu.The RTC also
found his defense of frame-up and extortion to be weak, self-serving and
unsubstantiated. The dispositive portion of its Decision held:
WHEREFORE, judgment is hereby rendered, finding accused
RODEL LUZ y ONG GUILTY beyond reasonable doubt for the crime of
violation of Section 11, Article II of Republic Act No. 9165 and
sentencing him to suffer the indeterminate penalty of imprisonment
ranging from twelve (12) years and (1) day, as minimum, to thirteen (13)
years, as maximum, and to pay a fine of Three Hundred Thousand
Pesos (P300,000.00).
The subject shabu is hereby confiscated for turn over to the
Philippine Drug Enforcement Agency for its proper disposition and
destruction in accordance with law.
SO ORDERED. 6
Upon review, the CA affirmed the RTC's Decision.
On 12 September 2011, petitioner filed under Rule 45 the instant Petition
for Review on Certiorari dated 1 September 2011. In a Resolution dated 12
October 2011, this Court required respondent to file a comment on the Petition.
On 4 January 2012, the latter filed its Comment dated 3 January 2012.
Petitioner raised the following grounds in support of his Petition:
 (i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT
SHABU IS INVALID.
(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE
OF DUTY OF THE POLICE OFFICER CANNOT BE RELIED
UPON IN THIS CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED
SUBJECT SPECIMEN HAS BEEN COMPROMISED.
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN
BEYOND THE REASONABLE DOUBT (sic). 7
Petitioner claims that there was no lawful search and seizure, because
there was no lawful arrest. He claims that the finding that there was a lawful
arrest was erroneous, since he was not even issued a citation ticket or charged
with violation of the city ordinance. Even assuming there was a valid arrest, he
claims that he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully arrested, the
RTC held thus:
It is beyond dispute that the accused was flagged down and
apprehended in this case by Police Officers Alteza and Brillante for
violation of City Ordinance No. 98-012, an ordinance requiring the use of
crash helmet by motorcycle drivers and riders thereon in the City of
Naga and prescribing penalties for violation thereof. The accused
himself admitted that he was not wearing a helmet at the time when he
was flagged down by the said police officers, albeit he had a helmet in
his possession. Obviously, there is legal basis on the part of the
apprehending officers to flag down and arrest the accused because the
latter was actually committing a crime in their presence, that is, a
violation of City Ordinance No. 98-012. In other words, the accused,
being caught in flagrante delicto violating the said Ordinance, he could
therefore be lawfully stopped or arrested by the apprehending
officers. ....8
We find the Petition to be impressed with merit, but not for the particular
reasons alleged. In criminal cases, an appeal throws the entire case wide open
for review and the reviewing tribunal can correct errors, though unassigned in the
appealed judgment, or even reverse the trial court's decision based on grounds
other than those that the parties raised as errors. 9
First, there was no valid arrest of petitioner.When he was flagged down
for committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.
Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense. 10 It is effected by an actual
restraint of the person to be arrested or by that person's voluntary submission to
the custody of the one making the arrest. Neither the application of actual force,
manual touching of the body, or physical restraint, nor a formal declaration of
arrest, is required. It is enough that there be an intention on the part of one of the
parties to arrest the other, and that there be an intent on the part of the other to
submit, under the belief and impression that submission is necessary. 11
Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender, but
the confiscation of the driver's license of the latter:
SECTION 29. Confiscation of Driver's License. — Law
enforcement and peace officers of other agencies duly deputized by the
Director shall, in apprehending a driver for any violation of this Act or any
regulations issued pursuant thereto, or of local traffic rules and
regulations not contrary to any provisions of this Act, confiscate the
license of the driver concerned and issue a receipt prescribed and
issued by the Bureau therefor which shall authorize the driver to operate
a motor vehicle for a period not exceeding seventy-two hours from the
time and date of issue of said receipt. The period so fixed in the receipt
shall not be extended, and shall become invalid thereafter. Failure of the
driver to settle his case within fifteen days from the date of apprehension
will be a ground for the suspension and/or revocation of his license.
Similarly, the Philippine National Police (PNP) Operations
Manual 12 provides the following procedure for flagging down vehicles during the
conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles
While in Mobile Car. — This rule is a general concept and will not apply
in hot pursuit operations. The mobile car crew shall undertake the
following, when applicable: ...
m.If it concerns traffic violations, immediately issue a Traffic Citation
Ticket (TCT) or Traffic Violation Report (TVR).Never indulge in
prolonged, unnecessary conversation or argument with the driver
or any of the vehicle's occupants;
At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been "under arrest." There was no intention
on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into
custody. Prior to the issuance of the ticket, the period during which petitioner was
at the police station may be characterized merely as waiting time. In fact, as
found by the trial court, PO3 Alteza himself testified that the only reason they
went to the police sub-station was that petitioner had been flagged down "almost
in front" of that place. Hence, it was only for the sake of convenience that they
were waiting there. There was no intention to take petitioner into custody.
 In Berkemer v. McCarty, 13 the United States (U.S.) Supreme Court
discussed at length whether the roadside questioning of a motorist detained
pursuant to a routine traffic stop should be considered custodial interrogation.
The Court held that, such questioning does not fall under custodial interrogation,
nor can it be considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and the length of
time the procedure is conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop
significantly curtails the "freedom of action" of the driver and the
passengers, if any, of the detained vehicle. Under the law of most
States, it is a crime either to ignore a policeman's signal to stop one's car
or, once having stopped, to drive away without permission. ...
However, we decline to accord talismanic power to the phrase in
the Miranda opinion emphasized by respondent. Fidelity to the doctrine
announced in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that powered the
decision are implicated. Thus, we must decide whether a traffic stop
exerts upon a detained person pressures that sufficiently impair his free
exercise of his privilege against self-incrimination to require that he be
warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a
person questioned will be induced "to speak where he would not
otherwise do so freely," Miranda v. Arizona,384 U.S.,at 467. First,
detention of a motorist pursuant to a traffic stop is presumptively
temporary and brief. The vast majority of roadside detentions last only
a few minutes. A motorist's expectations, when he sees a policeman's
light flashing behind him, are that he will be obliged to spend a short
period of time answering questions and waiting while the officer checks
his license and registration, that he may then be given a citation, but that
in the end he most likely will be allowed to continue on his way. In this
respect, questioning incident to an ordinary traffic stop is quite different
from stationhouse interrogation, which frequently is prolonged, and in
which the detainee often is aware that questioning will continue until he
provides his interrogators the answers they seek. See id.,at 451.
Second, circumstances associated with the typical traffic
stop are not such that the motorist feels completely at the mercy of
the police.To be sure, the aura of authority surrounding an armed,
uniformed officer and the knowledge that the officer has some discretion
in deciding whether to issue a citation, in combination, exert some
pressure on the detainee to respond to questions. But other aspects of
the situation substantially offset these forces. Perhaps most importantly,
the typical traffic stop is public, at least to some degree. ...
 In both of these respects, the usual traffic stop is more
analogous to a so-called "Terry stop," see Terry v. Ohio,392 U.S. 1
(1968),than to a formal arrest....The comparatively nonthreatening
character of detentions of this sort explains the absence of any
suggestion in our opinions that Terry stops are subject to the dictates of
Miranda. The similarly noncoercive aspect of ordinary traffic stops
prompts us to hold that persons temporarily detained pursuant to such
stops are not "in custody" for the purposes of Miranda.
xxx xxx xxx
We are confident that the state of affairs projected by respondent
will not come to pass. It is settled that the safeguards prescribed by
Miranda become applicable as soon as a suspect's freedom of action is
curtailed to a "degree associated with formal arrest." California v.
Beheler,463 U.S. 1121, 1125 (1983) (per curiam).If a motorist who has
been detained pursuant to a traffic stop thereafter is subjected to
treatment that renders him "in custody" for practical purposes, he will be
entitled to the full panoply of protections prescribed by Miranda.
See Oregon v. Mathiason,429 U.S. 492, 495 (1977) (per curiam).
(Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist therein was
only subjected to modest questions while still at the scene of the traffic stop, he
was not at that moment placed under custody (such that he should have been
apprised of his Miranda rights),and neither can treatment of this sort be fairly
characterized as the functional equivalent of a formal arrest. Similarly, neither
can petitioner here be considered "under arrest" at the time that his traffic citation
was being made.
It also appears that, according to City Ordinance No. 98-012, which was
violated by petitioner, the failure to wear a crash helmet while riding a motorcycle
is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not
be issued if the information or charge was filed for an offense penalized by a fine
only. It may be stated as a corollary that neither can a warrantless arrest be
made for such an offense.
This ruling does not imply that there can be no arrest for a traffic violation.
Certainly, when there is an intent on the part of the police officer to deprive the
motorist of liberty, or to take the latter into custody, the former may be deemed to
have arrested the motorist. In this case, however, the officer's issuance (or intent
to issue) a traffic citation ticket negates the possibility of an arrest for the same
violation.
Even if one were to work under the assumption that petitioner was
deemed "arrested" upon being flagged down for a traffic violation and
while awaiting the issuance of his ticket, then the requirements for a valid
arrest were not complied with.
This Court has held that at the time a person is arrested, it shall be the
duty of the arresting officer to inform the latter of the reason for the arrest and
must show that person the warrant of arrest, if any. Persons shall be informed of
their constitutional rights to remain silent and to counsel, and that any statement
they might make could be used against them. 14 It may also be noted that in this
case, these constitutional requirements were complied with by the police officers
only after petitioner had been arrested for illegal possession of dangerous drugs.
In Berkemer,the U.S. Court also noted that the Miranda warnings must
also be given to a person apprehended due to a traffic violation:
The purposes of the safeguards prescribed by Miranda are to
ensure that the police do not coerce or trick captive suspects into
confessing, to relieve the "inherently compelling pressures" "generated
by the custodial setting itself," "which work to undermine the individual's
will to resist," and as much as possible to free courts from the task of
scrutinizing individual cases to try to determine, after the fact, whether
particular confessions were voluntary. Those purposes are implicated as
much by in-custody questioning of persons suspected of misdemeanors
as they are by questioning of persons suspected of felonies.
If it were true that petitioner was already deemed "arrested" when he was
flagged down for a traffic violation and while he waiting for his ticket, then there
would have been no need for him to be arrested for a second time — after the
police officers allegedly discovered the drugs — as he was already in their
custody.
Second, there being no valid arrest, the warrantless search that
resulted from it was likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in "plain
view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) a "stop and frisk" search; and (vii) exigent and emergency
circumstances. 15 None of the above-mentioned instances, especially a search
incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be
inadvertently discovered, was not in "plain view." It was actually concealed inside
a metal container inside petitioner's pocket. Clearly, the evidence was not
immediately apparent. 16
Neither was there a consented warrantless search. Consent to a search is
not to be lightly inferred, but shown by clear and convincing evidence. 17 It must
be voluntary in order to validate an otherwise illegal search; that is, the consent
must be unequivocal, specific, intelligently given and uncontaminated by any
duress or coercion. While the prosecution claims that petitioner acceded to the
instruction of PO3 Alteza, this alleged accession does not suffice to prove valid
and intelligent consent. In fact, the RTC found that petitioner was merely "told" to
take out the contents of his pocket. 18
Whether consent to the search was in fact voluntary is a question of fact to
be determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent and
the environment in which consent is given: (1) the age of the defendant; (2)
whether the defendant was in a public or a secluded location; (3) whether the
defendant objected to the search or passively looked on; (4) the education and
intelligence of the defendant; (5) the presence of coercive police procedures; (6)
the defendant's belief that no incriminating evidence would be found; (7) the
nature of the police questioning; (8) the environment in which the questioning
took place; and (9) the possibly vulnerable subjective state of the person
consenting. It is the State that has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained, and was freely and
voluntarily given. 19 In this case, all that was alleged was that petitioner was
alone at the police station at three in the morning, accompanied by several police
officers. These circumstances weigh heavily against a finding of valid consent to
a warrantless search.
Neither does the search qualify under the "stop and frisk" rule. While the
rule normally applies when a police officer observes suspicious or unusual
conduct, which may lead him to believe that a criminal act may be afoot, the stop
and frisk is merely a limited protective search of outer clothing for weapons. 20
In Knowles v. Iowa, 21 the U.S. Supreme Court held that when a police
officer stops a person for speeding and correspondingly issues a citation instead
of arresting the latter, this procedure does not authorize the officer to conduct a
full search of the car. The Court therein held that there was no justification for a
full-blown search when the officer does not arrest the motorist. Instead, police
officers may only conduct minimal intrusions, such as ordering the motorist to
alight from the car or doing a patdown:
In Robinson, supra,we noted the two historical rationales for the
"search incident to arrest" exception: (1) the need to disarm the suspect
in order to take him into custody, and (2) the need to preserve evidence
for later use at trial. ...But neither of these underlying rationales for the
search incident to arrest exception is sufficient to justify the search in the
present case.
We have recognized that the first rationale — officer safety — is
"'both legitimate and weighty,'" ...The threat to officer safety from issuing
 a traffic citation, however, is a good deal less than in the case of a
custodial arrest. In Robinson, we stated that a custodial arrest involves
"danger to an officer" because of "the extended exposure which follows
the taking of a suspect into custody and transporting him to the police
station." 414 U.S.,at 234-235. We recognized that "[t]he danger to the
police officer flows from the fact of the arrest, and its attendant proximity,
stress, and uncertainty, and not from the grounds for arrest." Id.,at 234,
n. 5. A routine traffic stop, on the other hand, is a relatively brief
encounter and "is more analogous to a so-called 'Terry stop' ...than
to a formal arrest." Berkemer v. McCarty,468 U.S. 420, 439
(1984).See also Cupp v. Murphy,412 U.S. 291, 296 (1973) ("Where
there is no formal arrest ...a person might well be less hostile to the
police and less likely to take conspicuous, immediate steps to destroy
incriminating evidence").
This is not to say that the concern for officer safety is absent
in the case of a routine traffic stop. It plainly is not. See
Mimms, supra,at 110; Wilson, supra,at 413-414. But while the concern
for officer safety in this context may justify the "minimal" additional
intrusion of ordering a driver and passengers out of the car, it does
not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority
Iowa urges, officers have other, independent bases to search for
weapons and protect themselves from danger. For example, they may
order out of a vehicle both the driver, Mimms, supra,at 111, and any
passengers, Wilson, supra,at 414; perform a "patdown" of a driver and
any passengers upon reasonable suspicion that they may be armed and
dangerous, Terry v. Ohio,392 U.S. 1 (1968);conduct a "Terry patdown"
of the passenger compartment of a vehicle upon reasonable suspicion
that an occupant is dangerous and may gain immediate control of a
weapon, Michigan v. Long,463 U.S. 1032, 1049 (1983);and even
conduct a full search of the passenger compartment, including any
containers therein, pursuant to a custodial arrest, New York v.
Belton,453 U.S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to
search incident to arrest — the need to discover and preserve evidence.
Once Knowles was stopped for speeding and issued a citation, all the
evidence necessary to prosecute that offense had been
obtained. No further evidence of excessive speed was going to be found
either on the person of the offender or in the passenger compartment of
the car. (Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he may
have failed to object to the illegality of his arrest at the earliest opportunity, a
waiver of an illegal warrantless arrest does not, however, mean a waiver of the
inadmissibility of evidence seized during the illegal warrantless arrest. 22
 The Constitution guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures. 23 Any evidence obtained in violation of said right shall be inadmissible
for any purpose in any proceeding. While the power to search and seize may at
times be necessary to the public welfare, still it must be exercised and the law
implemented without contravening the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance to justify indifference to the
basic principles of government. 24
The subject items seized during the illegal arrest are inadmissible. 25 The
drugs are the very corpus delicti of the crime of illegal possession of dangerous
drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal
of the accused. 26
WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision
of the Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of
conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial
Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is
hereby REVERSEDand SET ASIDE. n Petitioner Rodel Luz y Ong is
hereby ACQUITTED. The bail bond posted for his provisional liberty
is CANCELLED and RELEASED.
SO ORDERED.
(Luz y Ong v. People, G.R. No. 197788, [February 29, 2012], 683 PHIL 399-
|||

415)

Espano vs. Court of Appeals [G.R. No. 120431, April 1, 1998]

[G.R. No. 120431. April 1, 1998.]

RODOLFO ESPANO, accused-petitioner, vs. COURT OF APPE

ALS and PEOPLE OF THE PHILIPPINES, respondents.

Ceferino Padua Law Office for petitioner.

The Solicitor General for respondents.

SYNOPSIS

This is a petition for review of the decision of the court of Appeals in

CA G.R. CR No. 13976 dated January 16, 1995 which affirmed in toto the
judgment of the Regional Trial Court of Manila, Branch 1, convicting petitioner
Rodolfo Espano for violation of Article II Section 8 of Republic Act No. 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972. The
records of the case reveal that herein petitioner was caught in possession of and
under his custody twelve plastic cellophane bags weighing 5.5 grams containing
crushed flowering tops, marijuana which is a prohibited drug. In his appeal before
the Supreme Court, petitioner contends that the trial and appellate courts erred in
convicting him because (1) the pieces of evidence seized were inadmissible; (2)
the superiority of his constitutional right to be presumed innocent over the
doctrine of presumption of regularity; (3) he was denied the constitutional
right of confrontation and to compulsory process; and (4) his conviction was
based on evidence which was irrelevant and not properly identified. CIScaA

The Supreme Court finds that there was no compelling reason to reverse
the decisions of the trial and appellate courts. In this case, the findings of the
trial court that the prosecution witnesses were more credible than those of the
defense must stand. Petitioner failed to show that Pat. Romeo Pagilagan, in
testifying against him, was motivated by reasons other than his duty to curb drug
abuse and had any intent to falsely impute to him such a serious crime as
possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must prevail.
Furthermore, the defense of alibi set up by petitioner deserved scant
consideration. He simply contended that he was in his house sleeping at the
time of the incident. Lastly, the two cellophane bags of marijuana seized were
admissible in evidence because he was caught in flagranti as a result of a buy-
bust operation conducted by police officers. However, as for the other ten
cellophane bags of marijuana found at petitioner's residence, the same are
inadmissible in evidence considering that the said bags were seized at
petitioner's house after his arrest, hence, do not fall under the exceptions
provided under Article III, Section 2 of the 1987 Constitution. In view thereof, the
instant petition is denied and the challenged decision is affirmed with modification
as to the penalty.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;

FINDINGS OF TRIAL COURTS ON THE CREDIBILITY OF WITNESSES
DESERVE A HIGH DEGREE OF RESPECT; CASE AT BAR. — It is a well-
settled doctrine that findings of trial courts on the credibility of witness deserve a
high degree of respect. Having observed the deportment of witnesses during the
trial, the trial judge is in a better position to determine the issue of credibility and,
thus, his findings will not be disturbed during appeal in the absence of any clear
and showing that he had overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which could have altered the
conviction of the appellants. In this case, the findings of the trial court that the
prosecution witnesses were more credible that those of the defense must stand.
Petitioner failed to show that Pat. Pagilagan, in testifying against him, was
motivated by reasons other than his duty to curb drug abuse and had any intent
to falsely impute to him such a serious crime as possession of prohibited drugs.
In the absence of such ill motive, the presumption of regularity in the
performance of his official duty must prevail.
2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS A DEFENSE THAT
HAS BEEN INVARIABLY VIEWED BY THE COURT WITH DISFAVOR; CASE
AT BAR. — The defense set up by petitioner does not deserve any
consideration. He simply contended that he was in his house sleeping at the
time of the incident. This court has consistently held that alibi is the weakest of all
defenses; and for it to prosper, the accused has the burden of proving that he
was not at the scene of the crime at the time of its commission and that it was
physically impossible for him to be there. Moreover, the "claim of 'frame-up,' like
alibi, is a defense that has been invariably viewed by the Court with disfavor for it
can just as easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act." No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
3. ID.; CRIMINAL PROCEDURE; WARRANTLESS ARREST; THE
MARIJUANA SEIZED FROM PETITIONER'S HOUSE AFTER HIS ARREST IS
INADMISSIBLE IN EVIDENCE; CASE AT BAR. — The 1987
Constitution guarantees freedom against unreasonable searches and seizures
under Article III, Section 2 which provides: "The right of the people to be secure
in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized." An exception to the said rule is a warrantless search incidental to a
lawful arrest of dangerous weapons or anything which may be used as
proof of the commission of an offense. It may extend beyond the person of the
one arrested to include the premises or surroundings under his immediate
control. In this case, the ten cellophane bags of marijuana seized at petitioner's
house after his arrest at Pandacan and Zamora Streets do not fall under the said
exceptions. . . . The articles seized from petitioner during his arrest were valid
under the doctrine of search made incidental to a lawful arrest. The warrantless
search made in his house, however, which yielded ten cellophane
bags of marijuana became unlawful since the police officers were not armed with
a search warrant at the time. Moreover, it was beyond the reach and
control of petitioner.
HTScEI

4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS AMENDED BY

REPUBLIC ACT 7659; IF THE QUANTITY OF MARIJUANA INVOLVED IS LESS
THAN 750 GRAMS, THE IMPOSABLE PENALTY RANGES FROM PRISION
CORRECTIONAL TO RECLUSION TEMPORAL; CASE AT BAR. —
This Court finds petitioner Rodolfo Espano guilty beyond reasonable
doubt of violating Article II, Section 8, in relation to Section 2 (e-L)(I) of Republic
Act No. 6425, as amended. Under the said provision, the penalty imposed is six
years and one day to twelve years and a fine ranging from six thousand to twelve
thousand pesos. With the passage of Republic Act No. 7659, which took effect
on December 31, 1993, the imposable penalty shall now depend on the
quantity of drugs recovered. Under the provisions of Republic Act No. 7659,
Section 20, and as interpreted in People v. Simon (234 SCRA 555 [1994])
and People v. Lara, (236 SCRA 291 [1994]) if the quantity of marijuana involved
is less than 750 grams, the imposable penalty ranges from prision
correccional to reclusion temporal. Taking into consideration that petitioner is not
a habitual delinquent, the amendatory provision is favorable to him and the
quantity of marijuana involved is less than 750 grams, the penalty imposed
under Republic Act No. 7659 should be applied.
5. ID.; ID.; PROPER PENALTY THEREOF; CASE AT BAR. — There
being no mitigating nor aggravating circumstances, the imposable penalty shall
be prision correccional in its medium period. Applying the Indeterminate
Sentence Law, the maximum penalty shall be taken from the medium
period of prision correccional, which is two (2) years, four (4) months and one (1)
day to four (4) years and two (2) months, while the minimum shall be taken from
the penalty next lower in degree, which is one (1) month and one (1) day to six
(6) months of arresto mayor. cSDHEC

DECISION

ROMERO, J : p

This is a petition for review of the decision of the Court of Appeals in CA-
G.R. CR No. 13976 dated January 16, 1995, 1 which affirmed in toto the
judgment of the Regional Trial Court of Manila, Branch 1, convicting petitioner
Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as
amended, otherwise known as the Dangerous Drugs Act. aisadc

Petitioner was charged under the following information:

 "That on or about July 14, 1991, in the City of Manila, Philippines
the said accused, not being authorized by law to possess or use any
prohibited drug, did then and there wilfully, unlawfully and knowingly
have in his possession and under his custody and control twelve (12)
plastic cellophane (bags) containing crushed flowering tops, marijuana
weighing 5.5 grams which is prohibited drug.
Contrary to law." 2
The evidence for the prosecution, based on the testimony of Pat. Romeo
Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police
officers, namely, Pat. Wilfredo Aquilino, Simplicio Rivera, and Erlindo
Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora
and Pandacan Streets, Manila to confirm reports of drug pushing in the area.
They saw petitioner selling "something" to another person. After the alleged
buyer left, they approached petitioner, identified themselves as policemen, and
frisked him. The search yielded two plastic cellophane tea bags of marijuana .
When asked if he had more marijuana, he replied that there was more in his
house. The policemen went to his residence where they found ten more
cellophane tea bags of marijuana. Petitioner was brought to the police
headquarters where he was charged with possession of prohibited drugs. On
July 24, 1991, petitioner posted bail 3 and the trial court issued his
order of release on July 29, 1991. 4
Annabelle Alip, forensic chemist of the WPD Criminal Investigation
Laboratory Section, testified that the articles sent to her by Pat. Wilfredo Aquino
regarding the apprehension of a certain Rodolfo Espano for examination tested
positive for marijuana, with total weight of 5.5 grams.
By way of defense, petitioner that on said evening, he was sleeping in
house and was awakened only when the policemen handcuffed him. He alleged
that the policemen were looking for his brother-in-law Lauro, and when they
could not find the latter, he was brought to the police station for investigation and
later indicted for possession of prohibited drugs. His wife Myrna corroborated his
story.
The trial court rejected petitioner's defense as a "mere afterthought" and
found the version of the prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting
petitioner of the crime charged, the dispositive portion of which reads:
"WHEREFORE there being proof beyond reasonable doubt,
the court finds the accused Rodolfo Espano y Valeria guilty of the
crime of violation of Section 8, Article II, in relation to Section 2 (e-L)
(I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179,
and pursuant to law hereby sentences him to suffer imprisonment of six
 (6) years and one (1) day to twelve (12) years and to pay a
fine of P6,000.00 with subsidiary imprisonment in case of default plus
costs.
The marijuana is declared fortified in favor of government and
shall be turned over to the Dangerous Drugs Board without delay.
SO ORDERED." 5
Petitioner appealed the decision to the Court of Appeals. The
appellate court, however, affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting
him on the basis of the following: (a) the pieces of evidence seized were
inadmissible; (b) the superiority of his constitutional right to be presumed
innocent over the doctrine of presumption of regularity; (c) he was denied the
constitutional right of confrontation and to compulsory process; and (d) his
conviction was based on evidence which was irrelevant and not properly
identified.
After a careful examination of the records of the case,
this Court finds no compelling reason sufficient to reverse the decisions of the
trial and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the
credibility of witnesses deserve a high degree of respect. Having observed the
deportment of witnesses during the trial, the trial judge is in a better position to
determine the issue of credibility and, thus, his findings will not be disturbed
during appeal in the absence of any clear showing that he had overlooked,
misunderstood or misapplied some facts or circumstances of weight and
substance which could have altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution witnesses
were more credible than those of the defense must stand. Petitioner failed to
show that Pat. Pagilagan, in testifying against him, was motivated by reasons
other than his duty to curb drug abuse and had any intent to falsely impute to him
such a serious crime as possession of prohibited drugs. In the absence of such ill
motive, the presumption of regularity of his official duty must prevail.
In People v. Velasco, 7 this Court reiterated the
doctrine of presumption of regularity in the performance of official duty which
provides:
". . . Appellant failed to establish that Pat. Godoy and the other
members of the buy-bust team are policemen engaged in mulcting or
other unscrupulous activities who where motivated either by the desire to
extort money or exact personal vengeance, or by sheer whim and
 caprice, when they entrapped her. And in the absence of proof of any
intent on the part of the police authorities to falsely impute such a
serious crime against appellant, as in this case, the
presumption of regularity in the performance of official duty, . . ., must
prevail over the self-serving and uncorroborated claim of appellant that
she had been framed." 8
Furthermore, the defense set up by petitioner does not deserve any
consideration. He simply contended that he was in his house sleeping at the
time of the incident. This Court has consistently held that alibi is the
weakest of all defenses; and for it to prosper, the accused has the
burden of proving that he was not at the scene of the crime of its commission and
that it was physically impossible for him to be there. Moreover, the "claim of a
'frame-up', like alibi, is a defense that has been invariably viewed by
the Court with disfavor for it can just as easily be concocted but difficult to prove,
and is a common and standard line of defense in most prosecutions arising from
violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was
presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the
alleged informant in court cast a reasonable doubt which warrants his acquittal.
This is again without merit, since failure of the prosecution to produce the
informant in court is of no moment especially when he is not even the best
witness to establish the fact that a buy-bust operation had indeed been
conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended
petitioner, testified on the actual incident of July 14, 1991, and identified him as
the one they caught in possession of prohibited drugs. Thus,
"We find that the prosecution had satisfactorily proved its case
against appellants. There is no compelling reason for us to overturn the
finding of the trial court that the testimony of Sgt. Gamboa, the lone
witness for the prosecution, was straightforward, spontaneous and
convincing. The testimony of a sole witness, if credible and positive and
satisfies the court beyond reasonable doubt, is sufficient to convict." 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able
to prove that petitioner indeed committed the crime charged; consequently, the
finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should
likewise be ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:
"A peace officer or a private person may, without a warrant, arrest
a person:
a. when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense;
 xxx xxx xxx."
Petitioner's arrest falls squarely under the aforecited rule. He was
caught in flagranti as a result of a buy-bust operation conducted by police officers
on the basis of information received regarding the illegal trade of drugs within the
area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner
handing over something to an alleged buyer. After the buyer left, they searched
him and discovered two cellophanes of marijuana. His arrest was, therefore,
lawful and the two cellophane bags of marijuana seized were admissible in
evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence,
however, the same inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches
and seizures under Article III, Section 2 which provides:
"The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and
seizures of whatever nature and for any purposes shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
An exception to the said rule is a warrantless search incidental to a lawful
arrest for dangerous weapons or anything which may be used as proof of the
commission of an offense. 11 It may extend beyond the person of the one
arrested to include the premises or surroundings under his immediate control. In
this case, the ten cellophane bags of marijuana seized at petitioner's house after
his arrest at Pandacan and Zamora Streets do not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
"As regards the brick of marijuana found inside the appellant's
house, the trial court correctly ignored it apparently in view of its
inadmissibility. While initially the arrest as well as the body search was
lawful, the warrantless search made inside the appellant's house
became unlawful since the police operatives were not armed with a
search warrant. Such search cannot fall under "search made incidental
to a lawful arrest," the same being limited to body search and to that
point within reach or control of the person arrested, or that which may
furnish him with the means of committing violence or of escaping. In the
case at bar, appellant was admittedly outside his house when he was
arrested. Hence, it can hardly be said that the inner portion of his house
was within his reach or control."
 The articles seized from petitioner during his arrest were valid under the
doctrine of search made incidental to a lawful arrest. The warrantless search
made in his house, however, which yielded ten cellophane bags of marijuana
became unlawful since the police officers were not armed with a search warrant
at the time. Moreover, it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond
reasonable doubt of violating Article II, Section 8, in relation to Section 2 (e-L)
(I) of Republic Act No. 6425, as amended. Under the said provision, the penalty
imposed is six years and one day to twelve years and a fine ranging from six
thousand to twelve thousands pesos. With the passage of Republic Act No.
7659, with took effect on December 31, 1993, the imposable penalty shall now
depend on the quantity of drugs recovered. Under the provisions of Republic
Act No. 7659, Section 20, and as interpreted in People v.
Simon 13 and People v. Lara, 14 if the quantity of marijuana involved is less than
750 grams, the imposable penalty ranges from prision correccional to reclusion
temporal. Taking into consideration that petitioner is not a habitual delinquent,
the amendatory provision is favorable to him and the quantity of marijuana
involved is less than 750 grams, the penalty imposed under Republic Act No.
7659 should be applied. There being no mitigating nor aggravating
circumstances, the imposable penalty shall be prision correccional in its medium
period. Applying the Indeterminate Sentence Law, the maximum penalty shall be
taken from the medium period of prision correccional, which is two (2) years, four
(4) months and one (1) day to four (4) years and two (2) months, while the
minimum shall be taken from the penalty next lower in degree, which is one (1)
month and one (1) day six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The
decision of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16,
1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is
sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1)
day of arresto mayor, as minimum of TWO (2) years, FOUR (4) months and ONE
(1) day of prision correccional, as minimum.
SO ORDERED.
(Espano v. Court of Appeals, G.R. No. 120431, [April 1, 1998], 351 PHIL 798-
|||

809)

United Laboratories vs. Isip, [G.R. No. 163858, June 28, 2005]

[G.R. No. 163858. June 28, 2005.]

UNITED LABORATORIES, INC., petitioner, vs.

ERNESTO ISIP and/or SHALIMAR PHILIPPINES and/or
 OCCUPANTS, Shalimar Building, No. 1571, Aragon Street, Sta.
Cruz, Manila, respondents.

DECISION

CALLEJO, SR., J : p

Rolando H. Besarra, Special Investigator III of the National Bureau of

Investigation (NBI), filed an application, in the Regional Trial Court (RTC) of
Manila, for the issuance of a search warrant concerning the first and second
floors of the Shalimar Building, located at No. 1571, Aragon Street (formerly No.
1524, Lacson Avenue, Sta. Cruz, Manila) occupied and/or used by Shalimar
Philippines, owned/operated by Ernesto Isip; and for the seizure of the following
for violation of Section 4(a), in relation to Section 8, of Republic Act (R.A.) No.
8203:
a. Finished or unfinished products
of UNITED LABORATORIES (UNILAB), particularly REVICON
multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers,
receptacles, advertisements and other paraphernalia used in the
offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents
used in recording the manufacture and/or importation, distribution
and/or sales of counterfeit REVICON multivitamins. 1
The application was docketed as People v. Ernesto Isip, et al.,
Respondents, Search Warrant Case No. 04-4916 and raffled to Branch 24 of the
court. Appended thereto were the following: (1) a sketch 2 showing the location of
the building to be searched; (2) the affidavit 3 of Charlie Rabe of the Armadillo
Protection and Security Agency hired by United Laboratories, Inc. (UNILAB), who
allegedly saw the manufacture, production and/or distribution of fake drug
products such as Revicon by Shalimar Philippines; (3) the letter-request of
UNILAB, the duly licensed and exclusive manufacturer and/or distributor of
Revicon and Disudrin, for the monitoring of the unauthorized
production/manufacture of the said drugs and, if warranted, for their seizure; (4)
the letter-complaint 4 of UNILAB issued through its Director of the Security and
Safety Group; and (5) the joint affidavit 5 of NBI Agents Roberto Divinagracia and
Rolando Besarra containing the following allegations:
 2. When learned that an Asset was already placed by ARMADILLO
PROTECTIVE AND SECURITY AGENCY named CHARLIE
RABE, who was renting a room since November 2003, at the said
premises located at No. 1571 Aragon St., Sta. Cruz, Manila. MR.
RABE averred that the owner of the premises is a certain MR.
ERNESTO ISIP and that the said premises which is known as
SHALIMAR PHILIPPINES, Shalimar Building, are being used to
manufacture counterfeit UNILAB products, particularly REVICON
multivitamins, which was already patented by UNILAB since
1985; SacDIE

3. Upon verification of the report, we found out that the said premises is
a six-story structure, with an additional floor as a penthouse, and
colored red-brown. It has a tight security arrangement wherein
non-residents are not allowed to enter or reconnoiter in the
premises;
4. We also learned that its old address is No. 1524 Lacson Avenue, Sta.
Cruz, Manila, and has a new address as 1571 Aragon St., Sta.
Cruz, Manila; and that the area of counterfeiting operations are
the first and second floors of Shalimar Building;
5. Since we cannot enter the premises, we instructed the Asset to take
pictures of the area especially the places wherein the clandestine
manufacturing operations were being held. At a peril to his well-
being and security, the Asset was able to take photographs herein
incorporated into this Search Warrant Application. 6
A representative from UNILAB, Michael Tome, testified during the hearing
on the application for the search warrant. After conducting the requisite searching
questions, the court granted the application and issued Search Warrant No. 04-
4916 dated January 27, 2004, directing any police officer of the law to conduct a
search of the first and second floors of the Shalimar Building located at No. 1571,
Aragon Street, Sta. Cruz, Manila. The court also directed the police to seize the
following items:
a. Finished or unfinished products
of UNITED LABORATORIES (UNILAB), particularly REVICON
multivitamins;
b. Sundry items such as tags, labels, boxes, packages, wrappers,
receptacles, advertisements and other paraphernalia used in the
offering for sale, sale and/or distribution of counterfeit REVICON
multivitamins;
c. Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents
used in recording the manufacture and/or importation, distribution
and/or sales of counterfeit REVICON multivitamins. 7
 The court also ordered the delivery of the seized items before it, together
with a true inventory thereof executed under oath.
The search warrant was implemented at 4:30 p.m. on January 27, 2004 by
NBI agents Besarra and Divinagracia, in coordination with UNILAB employees.
No fake Revicon multivitamins were found; instead, there were sealed boxes at
the first and second floors of the Shalimar Building which, when opened by the
NBI agents in the presence of respondent Isip, contained the following:
QUANTITY/UNIT DESCRIPTION

792 Bottles Disudrin 60 ml.

30 Boxes (100 pieces each) Inoflox 200 mg. 8
NBI Special Investigator Divinagracia submitted an inventory of the things
seized in which he declared that the search of the first and second floors of the
Shalimar Building at No. 1571, Aragon Street, Sta. Cruz, Manila, the premises
described in the warrant, was done in an orderly and peaceful manner. He also
filed a Return of Search Warrant, 9 alleging that no other articles/items other than
those mentioned in the warrant and inventory sheet were seized. The agent
prayed that of the items seized, ten boxes of Disudrin 60 ml., and at least one
box of Inoflox be turned over to the custody of the Bureau of Food and Drugs
(BFAD) for examination. 10 The court issued an order granting the motion, on the
condition that the turn over be made before the court, in the presence of a
representative from the respondents and the court. 11
The respondents filed an "Urgent Motion to Quash the Search Warrant or
to Suppress Evidence." 12 They contended that the implementing officers of the
NBI conducted their search at the first, second, third and fourth floors of the
building at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila, where items in "open
display" were allegedly found. They pointed out, however, that such premises
was different from the address described in the search warrant, the first and
second floors of the Shalimar Building located at No. 1571, Aragon Street, Sta.
Cruz, Manila. The respondents, likewise, asserted that the NBI officers seized
Disudrin and Inoflox products which were not included in the list of properties to
be seized in the search warrant. HICATc

UNILAB, in collaboration with the NBI, opposed the motion, insisting that
the search was limited to the first and second floors of the Shalimar building
located at the corner of Aragon Street and Lacson Avenue, Sta. Cruz, Manila.
They averred that, based on the sketch appended to the search warrant
application, Rabe's affidavit, as well as the joint affidavit of Besarra and
Divinagracia, the building where the search was conducted was located at No.
1571, Aragon Street corner Lacson Avenue, Sta. Cruz, Manila. They pointed out
that No. 1524 Lacson Avenue, Sta. Cruz, Manila was the old address, and the
new address was No. 1571, Aragon Street, Sta. Cruz, Manila. They maintained
that the warrant was not implemented in any other place. 13
In reply, the respondents insisted that the items seized were different from
those listed in the search warrant. They also claimed that the seizure took place
in the building located at No. 1524-A which was not depicted in the sketch of the
premises which the applicant submitted to the trial court. 14 In accordance with
the ruling of this Court in People v. Court of Appeals, 15 the respondents served a
copy of their pleading on UNILAB. 16
On March 11, 2004, the trial court issued an Order 17 granting the motion
of the respondents, on the ground that the things seized, namely, Disudrin and
Inoflox, were not those described in the search warrant. On March 16, 2004, the
trial court issued an advisory 18 that the seized articles could no longer be
admitted in evidence against the respondents in any proceedings, as the search
warrant had already been quashed.
UNILAB, through the Ureta Law Office, filed a motion, in collaboration with
the NBI agents, for the reconsideration of the order, contending that the ground
used by the court in quashing the warrant was not that invoked by the
respondents, and that the seizure of the items was justified by the plain view
doctrine. The respondents objected to the appearance of the counsel of UNILAB,
contending that the latter could not appear for the People of the Philippines. The
respondents moved that the motion for reconsideration of UNILAB be stricken off
the record. Disputing the claims of UNILAB, they insisted that the items seized
were contained in boxes at the time of the seizure at No. 1524-A, Lacson Avenue
corner Aragon Street, Sta. Cruz, Manila, and were not apparently incriminating
on plain view. Moreover, the seized items were not those described and itemized
in the search warrant application, as well as the warrant issued by the court itself.
The respondents emphasized that the Shalimar Laboratories is authorized to
manufacture galenical preparations of the following products:
Products:
- Povidone Iodine
- Chamomile Oil
- Salicylic Acid 10 g.
- Hydrogen Peroxide 3% Topical Solution
- Aceite de Alcamforado

- Aceite de Manzanilla 19
In a manifestation and opposition, the respondents assailed the
appearance of the counsel of UNILAB, and insisted that it was not authorized to
appear before the court under the Rules of Court, and to file pleadings. They
averred that the BFAD was the authorized government agency to file an
application for a search warrant.
In its counter-manifestation, UNILAB averred that it had the personality to
file the motion for reconsideration because it was the one which sought the filing
of the application for a search warrant; besides, it was not proscribed by Rule
126 of the Revised Rules of Criminal Procedure from participating in the
proceedings and filing pleadings. The only parties to the case were the NBI and
UNILAB and not the State or public prosecutor. UNILAB also argued that the
offended party, or the holder of a license to operate, may intervene through
counsel under Section 16 of Rule 110, in relation to Section 7(e), of the Rules of
Criminal Procedure.
UNILAB prayed that an ocular inspection be conducted of the place
searched by the NBI officers. 20 In their rejoinder, the respondents manifested
that an ocular inspection was the option to look forward to. 21 However, no such
ocular inspection of the said premises was conducted.
In the meantime, the BFAD submitted to the court the result of its
examination of the Disudrin and Inoflox samples which the NBI officers seized
from the Shalimar Building. On its examination of the actual component of
Inoflox, the BFAD declared that the substance failed the test. 22 The BFAD,
likewise, declared that the examined Disudrin syrup failed the test. 23 The BFAD
had earlier issued the following report:

PRODUCT NAME Manufacturer L.N. E.D. FINDINGS

1. Phenylpropanolamine Unilab 21021552 3-06 - Registered, however,

(Disudrin) label/physical
appearance
12.5 mg./5mL Syrup does not conform with
the
BFAD approved
label/registered
specifications.

2. Ofloxacin (Inoflox) Unilab 99017407 3-05 - Registered, however,

200 mg. tablet label/physical
appearance
does not conform with
the
BFAD approved
label/registered
 specifications. 24
On May 28, 2004, the trial court issued an Order 25 denying the motion for
reconsideration filed by UNILAB. The court declared that:
The Search Warrant is crystal clear: The seizing officers were
only authorized to take possession of "finished or unfinished products
of United Laboratories (UNILAB), particularly REVICON Multivitamins,
and documents evidencing the counterfeit nature of said products. The
Receipt/Inventory of Property Seized pursuant to the warrant does not,
however, include REVICON but other products. And whether or not
these seized products are imitations of UNILAB items is beside the point.
No evidence was shown nor any was given during the proceedings on
the application for search warrant relative to the seized products.
ACTESI

On this score alone, the search suffered from a fatal infirmity and,
hence, cannot be sustained. 26
UNILAB, thus, filed the present petition for review on certiorari under Rule
45 of the Rules of Court, where the following issues are raised:
Whether or not the seized 792 bottles of Disudrin 60 ml. and 30
boxes of Inoflox 200 mg. are INADMISSIBLE as evidence against the
respondents because they constitute the "fruit of the poisonous tree" or,
CONVERSELY, whether or not the seizure of the same counterfeit drugs
is justified and lawful under the "plain view" doctrine and, hence, the
same are legally admissible as evidence against the respondents in any
and all actions? 27
The petitioner avers that it was deprived of its right to a day in court when
the trial court quashed the search warrant for a ground which was not raised by
the respondents herein in their motion to quash the warrant. As such, it argues
that the trial court ignored the issue raised by the respondents. The petitioner
insists that by so doing, the RTC deprived it of its right to due process. The
petitioner asserts that the description in the search warrant of the products to be
seized — "finished or unfinished products of UNILAB" — is sufficient to include
counterfeit drugs within the premises of the respondents not covered by any
license to operate from the BFAD, and/or not authorized or licensed to
manufacture, or repackage drugs produced or manufactured by UNILAB. Citing
the ruling of this Court in Padilla v. Court of Appeals, 28 the petitioner asserts that
the products seized were in plain view of the officers; hence, may be seized by
them. The petitioner posits that the respondents themselves admitted that the
seized articles were in open display; hence, the said articles were in plain view of
the implementing officers.
In their comment on the petition, the respondents aver that the petition
should have been filed before the Court of Appeals (CA) because factual
questions are raised. They also assert that the petitioner has no locus standi to
file the petition involving the validity and the implementation of the search
warrant. They argue that the petitioner merely assisted the NBI, the BFAD and
the Department of Justice; hence, it should have impleaded the said government
agencies as parties-petitioners. The petition should have been filed by the Office
of the Solicitor General (OSG) in behalf of the NBI and/or the BFAD,
because under the 1987 Revised Administrative Code, the OSG is mandated to
represent the government and its officers charged in their official capacity in
cases before the Supreme Court. The respondents further assert that the trial
court may consider issues not raised by the parties if such consideration would
aid the court in the just determination of the case.
The respondents, likewise, maintain that the raiding team slashed the
sealed boxes so fast even before respondent Isip could object. They argue that
the seizure took place at No. 1524-A, Lacson Avenue, Sta. Cruz, Manila covered
by Transfer Certificate of Title (TCT) No. 220778, and not at No. 1571, Aragon
Street, Sta. Cruz, Manila covered by TCT No. 174412 as stated in the search
warrant. They assert that the ruling of the Court in People v. Court of
Appeals 29 is applicable in this case. They conclude that the petitioner failed to
prove the factual basis for the application of the plain view doctrine. 30
In reply, the petitioner asserts that it has standing and is, in fact, the real
party-in-interest to defend the validity of the search warrant issued by the RTC;
after all, it was upon its instance that the application for a search warrant was
filed by the NBI, which the RTC granted. It asserts that it is not proscribed
under R.A. No. 8203 from filing a criminal complaint against the respondents and
requesting the NBI to file an application for a search warrant. The petitioner
points out that the Rules of Criminal Procedure does not specifically prohibit a
private complainant from defending the validity of a search warrant. Neither is the
participation of a state prosecutor provided in Rule 126 of the said Rules. After
all, the petitioner insists, the proceedings for the application and issuance of a
search warrant is not a criminal action. The petitioner asserts that the place
sought to be searched was sufficiently described in the warrant for, after all, there
is only one building on the two parcels of land described in two titles where
Shalimar Philippines is located, the place searched by the NBI officers. 31 It also
asserts that the building is located at the corner of Aragon Street and Lacson
Avenue, Sta. Cruz, Manila. 32
The petitioner avers that the plain view doctrine is applicable in this case
because the boxes were found outside the door of the respondents' laboratory on
the garage floor. The boxes aroused the suspicion of the members of the raiding
team — precisely because these were marked with the distinctive UNILAB logos.
The boxes in which the items were contained were themselves so designated to
replicate true and original UNILAB boxes for the same medicine. Thus, on the left
hand corner of one side of some of the boxes 33 the letters "ABR" under the
words "60 ml," appeared to describe the condition/quality of the bottles inside (as
it is with genuine UNILAB box of the true medicine of the same brand). The
petitioner pointed out that "ABR" is the acronym for "amber bottle round"
describing the bottles in which the true and original Disudrin (for children) is
contained. CTAIHc

The petitioner points out that the same boxes also had their own "license
plates" which were instituted as among its internal control/countermeasures. The
license plates indicate that the items within are, supposedly, "Disudrin." The NBI
officers had reasonable ground to believe that all the boxes have one and the
same data appearing on their supposedly distinctive license plates. The
petitioner insists that although some of the boxes marked with the distinctive
UNILAB logo were, indeed, sealed, the tape or seal was also a copy of the
original because these, too, were marked with the distinctive UNILAB logo. The
petitioner appended to its pleading pictures of the Shalimar building and the
rooms searched showing respondent Isip; 34 the boxes seized by the police
officers containing Disudrin syrup; 35 and the boxes containing Inoflox and its
contents. 36
The issues for resolution are the following: (1) whether the petitioner is the
proper party to file the petition at bench; (2) whether it was proper for the
petitioner to file the present petition in this Court under Rule 45 of the Rules of
Court; and (3) whether the search conducted by the NBI officers of the first and
second floors of the Shalimar building and the seizure of the sealed boxes which,
when opened, contained Disudrin syrup and Inoflox, were valid.
On the first issue, we agree with the petitioner's contention that a search
warrant proceeding is, in no sense, a criminal action 37 or the commencement of
a prosecution. 38 The proceeding is not one against any person, but is solely for
the discovery and to get possession of personal property. It is a special and
peculiar remedy, drastic in nature, and made necessary because of public
necessity. It resembles in some respect with what is commonly known as John
Doe proceedings. 39 While an application for a search warrant is entitled like a
criminal action, it does not make it such an action.

A search warrant is a legal process which has been likened to a writ of

discovery employed by the State to procure relevant evidence of crime. 40 It is in
the nature of a criminal process, restricted to cases of public prosecutions. 41 A
search warrant is a police weapon, issued under the police power. A search
warrant must issue in the name of the State, namely, the People of the
Philippines. 42
A search warrant has no relation to a civil process. It is not a process for
adjudicating civil rights or maintaining mere private rights. 43 It concerns the
public at large as distinguished from the ordinary civil action involving the rights
of private persons. 44 It may only be applied for in the furtherance of public
prosecution. 45
However, a private individual or a private corporation complaining to the
NBI or to a government agency charged with the enforcement of special penal
laws, such as the BFAD, may appear, participate and file pleadings in the
search warrant proceedings to maintain, inter alia, the validity of the search
warrant issued by the court and the admissibility of the properties seized in
anticipation of a criminal case to be filed; such private party may do so in
collaboration with the NBI or such government agency. The party may file an
opposition to a motion to quash the search warrant issued by the court, or a
motion for the reconsideration of the court order granting such motion to
quash. 46
In this case, UNILAB, in collaboration with the NBI, opposed the
respondents' motion to quash the search warrant. The respondents served
copies of their reply and opposition/comment to UNILAB, through Modesto
Alejandro, Jr. 47 The court a quo allowed the appearance of UNILAB and
accepted the pleadings filed by it and its counsel. CacTIE

The general rule is that the proper party to file a petition in the CA or
Supreme Court to assail any adverse order of the RTC in the search warrant
proceedings is the People of the Philippines, through the OSG. However,
in Columbia Pictures Entertainment, Inc. v. Court of Appeals, 48 the Court
allowed a private corporation (the complainant in the RTC) to file a petition
for certiorari, and considered the petition as one filed by the OSG. The Court in
the said case even held that the petitioners therein could argue its case in lieu of
the OSG:
From the records, it is clear that, as complainants, petitioners
were involved in the proceedings which led to the issuance of Search
Warrant No. 23. In People v. Nano, the Court declared that while the
general rule is that it is only the Solicitor General who is authorized to
bring or defend actions on behalf of the People or the Republic of the
Philippines once the case is brought before this Court or the Court of
Appeals, if there appears to be grave error committed by the judge or a
lack of due process, the petition will be deemed filed by the private
complainants therein as if it were filed by the Solicitor General. In line
with this ruling, the Court gives this petition due course and will allow
petitioners to argue their case against the questioned order in lieu of the
Solicitor General. 49
The general rule is that a party is mandated to follow the hierarchy of
courts. However, in exceptional cases, the Court, for compelling reasons or if
warranted by the nature of the issues raised, may take cognizance of petitions
filed directly before it. 50 In this case, the Court has opted to take cognizance of
the petition, considering the nature of the issues raised by the parties.
The Court does not agree with the petitioner's contention that the issue of
whether the Disudrin and Inoflox products were lawfully seized was never raised
in the pleadings of the respondents in the court a quo. Truly, the respondents
failed to raise the issue in their motion to quash the search warrant; in their reply,
however, they averred that the seized items were not included in the subject
warrant and, therefore, were not lawfully seized by the raiding team. They also
averred that the said articles were not illegal per se, like explosives and shabu,
as to justify their seizure in the course of unlawful search. 51 In their
Opposition/Comment filed on March 15, 2004, the respondents even alleged the
following:
The jurisdiction of this Honorable Court is limited to the
determination of whether there is a legal basis to quash the search
warrant and/or to suppress the seized articles in evidence. Since the
articles allegedly seized during the implementation of the search warrant
— Disudrin and Inoflux products — were not included in the search
warrant, they were, therefore, not lawfully seized by the raiding team;
they are not illegal per se, as it were, like an arms cache, subversive
materials or shabu as to justify their seizure in the course of a lawful
search, or being in plain view or some such. No need whatever for some
public assay.
The NBI manifestation is a glaring admission that it cannot tell
without proper examination or assay that the Disudrin and Inoflox
samples allegedly seized from respondent's place were counterfeit. All
the relevant presumptions are in favor of legality. 52
The Court, therefore, finds no factual basis for the contention of the
petitioner that the respondents never raised in the court a quo the issue of
whether the seizure of the Disudrin and Inoflox products was valid.
In any event, the petitioner filed a motion for the reconsideration of the
March 11, 2004 Order of the court a quo on the following claims:
2.01 The Honorable Court ERRED in ruling on a non-issue or the issue
as to the alleged failure to particularly describe in the search
warrant the items to be seized but upon which NO challenge was
then existing and/or NO controversy is raised;
2.02 The Honorable Court ERRED in its ruling that "finished or
unfinished products of UNILAB" cannot stand the test of a
particular description for which it then reasons that the search is,
supposedly unreasonable; and,
2.03 The Honorable Court ERRED in finding that the evidence seized is
lawfully inadmissible against respondents. 53
 The court a quo considered the motion of the petitioner and the issue
raised by it before finally resolving to deny the same. It cannot thus be gainsaid
that the petitioner was denied its right to due process.
On the validity of the seizure of the sealed boxes and its contents of
Disudrin and Inoflox, the Court, likewise, rejects the contention of the
petitioner.
DSAacC

A search warrant, to be valid, must particularly describe the place to be

searched and the things to be seized. The officers of the law are to seize only
those things particularly described in the search warrant. A search warrant is not
a sweeping authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence or articles
relating to a crime. The search is limited in scope so as not to be general or
explanatory. Nothing is left to the discretion of the officer executing the
warrant. 54
Objects, articles or papers not described in the warrant but on plain
view of the executing officer may be seized by him. However, the seizure by
the officer of objects/articles/papers not described in the warrant cannot be
presumed as plain view. The State must adduce evidence, testimonial or
documentary, to prove the confluence of the essential requirements for the
doctrine to apply, namely: (a) the executing law enforcement officer has a prior
justification for an initial intrusion or otherwise properly in a position from
which he can view a particular order; (b) the officer must discover
incriminating evidence inadvertently; and (c) it must be immediately
apparent to the police that the items they observe may be evidence of a crime,
contraband, or otherwise subject to seizure. 55
The doctrine is not an exception to the warrant. It merely serves to
supplement the prior justification — whether it be a warrant for another object,
hot pursuit, search as an incident to a lawful arrest or some other legitimate
reason for being present, unconnected with a search directed against the
accused. The doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges. It is a
recognition of the fact that when executing police officers comes across
immediately incriminating evidence not covered by the warrant, they
should not be required to close their eyes to it, regardless of whether it is
evidence of the crime they are investigating or evidence of some other
crime. It would be needless to require the police to obtain another
warrant. 56 Under the doctrine, there is no invasion of a legitimate expectation of
privacy and there is no search within the meaning of the Constitution.
The immediate requirement means that the executing officer can, at the
time of discovery of the object or the facts therein available to him, determine
probable cause of the object's incriminating evidence. 57 In other words, to be
immediate, probable cause must be the direct result of the officer's
instantaneous sensory perception of the object. 58 The object is apparent if
the executing officer had probable cause to connect the object to criminal
activity. The incriminating nature of the evidence becomes apparent in the
course of the search, without the benefit of any unlawful search or seizure. It
must be apparent at the moment of seizure. 59
The requirement of inadvertence, on the other hand, means that the
officer must not have known in advance of the location of the evidence and
intend to seize it. 60 Discovery is not anticipated. 61
The immediately apparent test does not require an unduly high degree of
certainty as to the incriminating character of evidence. It requires merely that the
seizure be presumptively reasonable assuming that there is probable cause to
associate the property with criminal activity; that a nexus exists between a
viewed object and criminal activity. 62

Incriminating means the furnishing of evidence as proof of circumstances

tending to prove the guilt of a person. 63
Indeed, probable cause is a flexible, common sense standard. It merely
requires that the facts available to the officer would warrant a man of reasonable
caution and belief that certain items may be contrabanded or stolen property or
useful as evidence of a crime. It does not require proof that such belief be correct
or more likely than true. A practical, non-traditional probability that incriminating
evidence is involved is all that is required. The evidence thus collected must be
seen and verified as understood by those experienced in the field of law
enforcement. 64
In this case, Disudrin and/or Inoflox were not listed in the search warrant
issued by the court a quo as among the properties to be seized by the NBI
agents. The warrant specifically authorized the officers only to seize "counterfeit
Revicon multivitamins, finished or unfinished, and the documents used in
recording, manufacture and/or importation, distribution and/or sale, or the offering
for sale, sale and/or distribution of the said vitamins." The implementing officers
failed to find any counterfeit Revicon multivitamins, and instead seized sealed
boxes which, when opened at the place where they were found, turned out to
contain Inoflox and Disudrin. EcAHDT

It was thus incumbent on the NBI agents and the petitioner to prove their
claim that the items were seized based on the plain view doctrine. It is not
enough to prove that the sealed boxes were in the plain view of the NBI agents;
evidence should have been adduced to prove the existence of all the essential
requirements for the application of the doctrine during the hearing of the
respondents' motion to quash, or at the very least, during the hearing of the NBI
and the petitioner's motion for reconsideration on April 16, 2004. The immediately
apparent aspect, after all, is central to the plain view exception relied upon by the
petitioner and the NBI. There is no showing that the NBI and the petitioner even
attempted to adduce such evidence. In fact, the petitioner and the NBI failed to
present any of the NBI agents who executed the warrant, or any of the
petitioner's representative who was present at the time of the enforcement of the
warrant to prove that the enforcing officers discovered the sealed boxes
inadvertently, and that such boxes and their contents were incriminating and
immediately apparent. It must be stressed that only the NBI agent/agents who
enforced the warrant had personal knowledge whether the sealed boxes and
their contents thereof were incriminating and that they were immediately
apparent. 65 There is even no showing that the NBI agents knew the contents of
the sealed boxes before they were opened.
In sum then, the Court finds and so hold that the petitioner and the NBI
failed to prove the essential requirements for the application of the plain view
doctrine.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. The assailed orders of the Regional Trial Court are AFFIRMED.
SO ORDERED.
(United Laboratories Inc. v. Isip, G.R. No. 163858, [June 28, 2005], 500 PHIL
|||

342-364)

Papa vs. Mago [G.R. No. L-27360, February 28, 1968]

[G.R. No. L-27360. February 28, 1968.]

HON. RICARDO G. PAPA, as Chief of Police of Manila, HON.

JUAN PONCE ENRILE, as Commissioner of Customs, PEDRO
PACIS, as Collector of Customs of the Port of Manila, and
MARTIN ALAGAO, as Patrolman of the Manila Police-
Department, petitioners, vs. REMEDIOS MAGO and HON.
HILARION U. JARENCIO, as Presiding Judge of Branch 23,
Court of First Instance of Manila, respondents.

Solicitor General for petitioners.

Juan T . David for respondents.
 SYLLABUS

1. CUSTOMS BUREAU; POWERS AND DUTIES OF BUREAU OF

CUSTOMS. — Among others, the Bureau of Customs has the duties, powers
and the jurisdiction to assess and collect all lawful revenues from imported
articles and all other dues, fees, charges, fines and penalties accruing under
the tariff and customs laws; to prevent and suppress smuggling and other
frauds upon the customs; and to enforce tariff and customs laws.
2. ID.; JURISDICTION; CUSTOMS BUREAU HAS JURISDICTION
OVER IMPORTED GOODS; "IMPORTATION", MEANING OF. — Where the
goods in question were imported from Hongkong as shown in the statement
and receipts of duties collected on informal entry and where the importation
has not been terminated, the imported goods remain under the
jurisdiction of the Bureau of Customs. Importation is terminated only
upon the payment of duties, taxes and other charges upon the articles,
or secured to be paid, at the port of entry and the legal permit for
withdrawal shall have been granted. Payment of the duties, taxes, fees
and other charges must be in full.
3. ID; ID; BUREAU OF CUSTOMS, NOT THE COURT OF FIRST
INSTANCE, HAS JURISDICTION OVER THE CASE WHERE GOODS ARE
UNDER CUSTODY OF SAID BUREAU, EVEN IF NO WARRANT OF
SEIZURE AND DETENTION IS YET ISSUED ON GOODS. — Since the
goods were under the custody and at the disposal of the Bureau of Customs
when the petition for mandamus was filed in the Court of First Instance, the
latter could not exercise jurisdiction over said goods even if the warrant of
seizure and detention of goods for purposes of seizure and forfeiture
proceedings had not yet been issued by the Collector. It is settled that the
Bureau of Customs acquires exclusive jurisdiction over imported goods for
purposes of enforcing the Customs laws, from the moment the goods are
actually in possession and control of said Bureau even in the absence on any
warrant of seizure or detention.
4. ID.; ID.; SEIZURE OF GOODS BY MPD, DEPUTIZED BY BUREAU
OF CUSTOMS GAVE THE LATTER EXCLUSIVE JURISDICTION OVER
CASE; ISSUANCE OF WARRANT OF SEIZURE BY CUSTOMS BUREAU
AFTER FILLING OF MANDAMUS SUIT IN CFI, DID NOT DIVEST THE
LATTER OF JURISDICTION IT DID NOT ACQUIRE. — Where the Bureau of
Customs, through the Manila Police Department acting under petitioner police
chief Papa who was formally deputized by the Commissioner of Customs
seized the goods on November 4, 1966, the Bureau from that date acquired
jurisdiction over the goods to the exclusion of the regular courts. The issuance
of the warrant of seizure and detention by the Customs Collector after the
filing of the mandamus suit in the regular court, did not deprive the latter of its
jurisdiction which it never acquired in the first place, as the Bureau of
Customs had already previously acquired jurisdiction on the case to the
exclusion of regular courts for purposes of enforcement of customs and tariff
laws.
5. ID.; ID.; GOODS, EVEN IF BROUGHT OUT OF CUSTOMS AREA,
STILL FALL WITHIN JURISDICTION OF BUREAU OF CUSTOMS;
JURISDICTION OF CUSTOMS BUREAU IS REGAINED. — Even if it be
conceded, arguendo, that after the goods have been brought out of the
customs area, the Bureau of Customs lost jurisdiction over the same, still
when said goods were intercepted at the Agrifina Circle by members of the
MPD acting under directions and orders of petitioner Papa who had been
formally deputized by the Commissioner of Customs, such jurisdiction was
regained by the Bureau of Customs. Sec. 1206 of the Tariff and Customs
Code imposes upon the Collector of Customs the duty to hold possession of
all imported articles upon which duties, taxes and other charges have not
been paid or secured to be paid and to dispose of the same according to law.
6. ID.; IMPORTATIONS MADE CONTRARY TO LAW ARE SUBJECT
TO FORFEITURE. — Where from the record, the duties, taxes and other
charges on the imported articles have not been paid in full, such articles are
subject to forfeiture under Section 2530 pars. e and m, (1), (4) and (5) of
the Tariff and Customs Code; for well settled is the rule that merchandise
imported contrary to law is subject to forfeiture and goods released contrary to
law are likewise subject to seizure and forfeiture.
7. ID.; ID.; SEARCH WARRANT; LAWFUL SEARCH WITHOUT
SEARCH WARRANT CAN BE EFFECTED. — The Tariff and Customs
Code does not require a search warrant for purposes of enforcing customs
and tariff laws. Under Sec. 2203 thereof, persons having police authority may
enter, pass through or search any land, inclosure, warehouse, store or
building not being a dwelling house and also, to inspect, search and examine
any vehicle or aircraft and any trunk, package, box or envelope or any person
on board or stop and search and examine any vehicle, beast or person
suspected of holding or conveying any dutiable or prohibited article introduced
into the Philippines contrary to law, without mentioning the need of a search
warrant in said cases. Except in the search of a dwelling house, therefore,
persons exercising police authority under the customs law may effect search
and seizure without search warrant in the enforcement of customs laws.

DECISION
ZALDIVAR, J : p

This is an original action for prohibition and certiorari, with preliminary

injunction, filed by Ricardo Papa, Chief of Police of Manila; Juan Ponce Enrile,
Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of
Manila; and Martin Alagao, a patrolman of the Manila Police Department,
against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of
Branch 23 of the Court of First Instance of Manila, praying for the annulment
of the order issued by respondent Judge in Civil Case No. 67496 of the Court
of First Instance of Manila under date of March 7, 1967, which authorized the
release under bond of certain goods which were seized and held by
petitioners in connection with the enforcement of the Tariff and Customs
Code, but which were claimed by respondent Remedios Mago, and to prohibit
respondent Judge from further proceeding in any manner whatsoever in said
Civil Case No. 67496. Pending the determination of this case this Court
issued a writ of preliminary injunction restraining the respondent Judge from
executing, enforcing and/or implementing the questioned order in Civil
Case No. 67496 and from proceeding with said case.
Petitioner Martin Alagao, head of the counter-intelligence unit of the
Manila Police Department, acting upon a reliable information received on
November 3, 1966 to the effect that a certain shipment of personal effects,
allegedly misdeclared and undervalued, would be released the following day
from the customs zone of the port of Manila and loaded on two trucks, and
upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly
deputized agent of the Bureau of Customs, conducted surveillance at
gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30
in the afternoon of November 4, 1966, elements of the counter-intelligence
unit went after the trucks and intercepted them at the Agrifina Circle, Ermita,
Manila. The load of the two trucks, consisting of nine bales of goods, and the
two trucks, were seized on instructions of the Chief of Police. Upon
investigation, a person claimed ownership of the goods and showed to the
policemen a "Statement and Receipts of Duties Collected on Informal
Entry No. 147-5501", issued by the Bureau of Customs in the name of a
certain Bienvenido Naguit.
Claiming to have been prejudiced by the seizure and detention of the
two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with
the Court of First Instance of Manila a petition "for mandamus with restraining
order or preliminary injunction," docketed as Civil Case No. 67496, alleging,
among others, that Remedios Mago was the owner of the goods seized,
having purchased them from the Sta. Monica Grocery in San Fernando,
Pampanga; that she hired the trucks owned by Valentin B. Lanopa to
transport the goods from said place to her residence at 1657 Laon Laan St.,
Sampaloc, Manila; that the goods were seized by members of the Manila
Police Department without search warrant issued by a competent court; that
Manila Chief of Police Ricardo Papa denied the request of counsel for
Remedios Mago that the bales be not opened and the goods contained
therein be not examined; that then Customs Commissioner Jacinto Gavino
had illegally assigned appraisers to examine the goods because the goods
were no longer under the control and supervision of the Commissioner of
Customs; that the goods, even assuming them to have been misdeclared and
undervalued, were not subject to seizure under Section 2531 of the Tariff and
Customs Code because Remedios Mago had bought them from another
person without knowledge that they were imported illegally; that the bales had
not yet been opened, although Chief of Police Papa had arranged with the
Commissioner of Customs regarding the disposition of the goods, and that
unless restrained their constitutional rights would be violated and they would
truly suffer irreparable injury. Hence Remedios Mago and Valentin Lanopa
prayed for the issuance of a restraining order, ex parte, enjoining the above-
named police and customs authorities, or their agents, from opening the bales
and examining the goods, and a writ of mandamus for the return of the goods
and the trucks, as well as a judgment for actual, moral and exemplary
damages in their favor.
On November 10, 1966, respondent Judge Hilarion Jarencio issued an
order ex parte restraining the respondents in Civil Case No. 67496 — now
petitioners in the instant case before this Court — from opening the nine bales
in question, and at the same time set the hearing of the petition for preliminary
injunction on November 16, 1966. However, when the restraining order was
received by herein petitioners, some bales had already been opened by the
examiners of the Bureau of Customs in the presence of officials of the Manila
Police Department, an assistant city fiscal and a representative of herein
respondent Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended
petition in Civil Case No. 67496, including as party defendants Collector of
Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the
Manila Police Department. Herein petitioners (defendants below) filed, on
November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of
Preliminary Injunction", denying the alleged illegality of the seizure and
detention of the goods and the trucks and of their other actuations, and
alleging special and affirmative defenses, to wit: that the Court of First
Instance of Manila had no jurisdiction to try the case; that the case fell within
the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the
court had jurisdiction over the case, the petition stated no cause of action in
view of the failure of Remedios Mago to exhaust the administrative remedies
provided for in the Tariff and Customs Code; that the Bureau of Customs had
not lost jurisdiction over the goods because the full duties and charges
thereon had not been paid; that the members of the Manila Police Department
had the power to make the seizure; that the seizure was not unreasonable;
and that the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect searches, seizures and arrests in inland places in
connection with the enforcement of the said Code. In opposing the issuance
of the writ of preliminary injunction, herein petitioners averred in the court
below that the writ could not be granted for the reason that
Remedios Mago was not entitled to the main reliefs she prayed for; that the
release of the goods, which were subject to seizure proceedings under
the Tariff and Customs Code, would deprive the Bureau of Customs of the
authority to forfeit them; and that Remedios Mago and Valentin Lanopa would
not suffer irreparable injury. Herein petitioners prayed the court below for the
lifting of the restraining order, for the denial of the issuance of the writ of
preliminary injunction, and for the dismissal of the case.
At the hearing on December 9, 1966, the lower court, with the
conformity of the parties, ordered that an inventory of the goods be made by
its clerk of court in the presence of the representatives of the claimant of the
goods, the Bureau of Customs, and the Anti- Smuggling Center of the Manila
Police Department. On December 13, 1966, the above-named persons filed a
"Compliance" itemizing the contents of the nine bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex
parte motion to release the goods, alleging that since the inventory of the
goods seized did not show any article of prohibited importation, the same
should be released as per agreement of the parties upon her posting of the
appropriate bond that may be determined by the court. Herein petitioners filed
their opposition to the motion, alleging that the court had no jurisdiction to
order the release of the goods in view of the fact that the court
had no jurisdiction over the case, and that most of the goods, as shown in the
inventory, were not declared and were, therefore, subject to forfeiture. A
supplemental opposition was filed by herein petitioners on January 19, 1967,
alleging that on January 12, 1967 seizure proceedings against the goods had
been instituted by the Collector of Customs of the Port of Manila, and the
determination of all questions affecting the disposal of property proceeded
against in seizure and forfeiture proceedings should thereby be left to the
Collector of Customs. On January 30, 1967, herein petitioners filed a
manifestation that the estimated duties, taxes and other charges due on the
goods amounted to P95,772.00. On February 2, 1967, herein respondent
Remedios Mago filed an urgent manifestation and reiteration of the motion for
the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the
goods to herein respondent Remedios Mago upon her filing of a bond in the
amount of P40,000.00, and on March 13, 1967, said respondent filed the
corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf,
filed a motion for reconsideration of the order of the court releasing the goods
under bond, upon the ground that the Manila Police Department had been
directed by the Collector of Customs of the Port of Manila to hold the goods
pending termination of the seizure proceedings.
Without waiting for the court's action on the motion for reconsideration,
and alleging that they had no plain, speedy and adequate remedy in the
ordinary course of law, herein petitioners filed the present action for
prohibition and certiorari with preliminary injunction before this Court. In their
petition petitioners allege, among others, that the respondent Judge acted
without jurisdiction in ordering the release to respondent Remedios Mago of
the disputed goods, for the following reasons: (1) the Court of First Instance of
Manila, presided by respondent Judge, had no jurisdiction over the case; (2)
respondent Remedios Mago had no cause of action in Civil Case No. 67496
of the Court of First Instance of Manila due to her failure to exhaust all
administrative remedies before invoking judicial intervention; (3) the
Government was not estopped by the negligent and/or illegal acts of its
agents in not collecting the correct taxes; and (4) the bond fixed by
respondent Judge for the release of the goods was grossly insufficient.
In due time, the respondents filed their answer to the petition for
prohibition and certiorari in this case. In their answer, respondents alleged,
among others: (1) that it was within the jurisdiction of the lower court presided
by respondent Judge to hear and decide Civil Case No. 67496 and to issue
the questioned order of March 7, 1967, because said Civil Case No. 67496
was instituted long before seizure and identification proceedings against the
nine bales of goods in question were instituted by the Collector of Customs;
(2) that petitioners could no longer go after the goods in question after the
corresponding duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the Bureau of
Customs; (3) that respondent Remedios Mago is a purchaser in good faith of
the goods in question so that those goods can not be the subject of seizure
and forfeiture proceedings; (4) that the seizure of the goods was effected by
members of the Manila Police Department at a place outside the control and
jurisdiction of the Bureau of Customs and effected without any search warrant
or a warrant of seizure and detention; (5) that the warrant of seizure and
detention subsequently issued by the Collector of Customs is illegal and
unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles
of prohibited importation; (7) that petitioners are estopped to institute the
present action because they had agreed before the respondent Judge that
they would not interpose any objection to the release of the goods under bond
to answer for whatever duties and taxes the said goods may still be liable; and
(8) that the bond for the release of the goods was sufficient.
The principal issue in the instant case is whether or not, the respondent
Judge had acted with jurisdiction in issuing the order of March 7, 1967
releasing the goods in question.
The Bureau of Customs has the duties, powers and jurisdiction, among
others, (1) to assess and collect all lawful revenues from imported articles,
and all other dues, fees, charges, fines and penalties, accruing under the tariff
and customs laws; (2) to prevent and suppress smuggling and other frauds
upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in
question were imported from Hongkong, as shown in the "Statement and
Receipts of Duties Collected on Informal Entry." 2 As long as the importation
has not been terminated the imported goods remain under the jurisdiction of
the Bureau of Customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured
to be paid, at the port of entry and the legal permit for withdrawal shall have
been granted. 3 The payment of the duties, taxes, fees and other charges
must be in full. 4
The record shows, by comparing the articles and duties stated in the
aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with
the manifestation of the Office of the Solicitor General 5 wherein it is stated
that the estimated duties, taxes and other charges on the goods subject of
this case amounted to P95,772.00 as evidenced by the report of the appraiser
of the Bureau of Customs, that the duties, taxes and other charges had not
been paid in full. Furthermore, a comparison of the goods on which duties had
been assessed, as shown in the "Statement and Receipts of Duties Collected
on Informal Entry" and the "compliance" itemizing the articles found in the
bales upon examination and inventory, 6 shows that the quantity of the goods
was underdeclared, presumably to avoid the payment of duties thereon. For
example, Annex B (the statement and receipts of duties collected) states that
there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory
contained in the "compliance") states that in bale No. 1 alone there were 42
dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only
100 pieces of watch bands were assessed, but in Annex H, there were in
bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and
120 dozens of men's metal watch bands (gold color), and in bale No. 7, 320
dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only
of men's handkerchief were declared, but in Annex H it appears that there
were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380
dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in
bale No. 9. The articles contained in the nine bales in question, were,
therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4),
and (5) of the Tariff and Customs Code. And this Court has held that
merchandise, the importation of which is effected contrary to law, is subject to
forfeiture, 7 and that goods released contrary to law are subject to seizure and
forfeiture. 8

Even if it be granted, arguendo, that after the goods in question had

been brought out of the customs area the Bureau of Customs had lost
jurisdiction over the same, nevertheless, when said goods were intercepted at
the Agrifina Circle on November 4, 1966 by members of the Manila Police
Department, acting under directions and orders of their Chief, Ricardo
G. Papa, who had been formally deputized by the Commissioner of
Customs, 9 the Bureau of Customs had regained jurisdiction and custody of
the goods. Section 1206 of the Tariff and Customs Code imposes upon the
Collector of Customs the duty to hold possession of all imported articles upon
which duties, taxes, and other charges have not been paid or secured to be
paid, and to dispose of the same according to law. The goods in question,
therefore, were under the custody and at the disposal of the Bureau of
Customs at the time the petition for mandamus, docketed as Civil Case No.
67496, was filed in the Court of First Instance of Manila on November 9, 1966.
The Court of First Instance of Manila, therefore, could not exercise jurisdiction
over said goods even if the warrant of seizure and detention of the goods for
the purposes of the seizure and forfeiture proceedings had not yet been
issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio
Lantin, et al.," G. R. No. L-24037, decided by this Court on April 27, 1967, is
squarely applicable to the instant case. In the De Joya case, it appears that
Francindy Commercial of Manila bought from Ernerose Commercial of Cebu
City 90 bales of assorted textiles and rags, valued at P117,731.00, which had
been imported and entered thru the port of Cebu. Ernerose Commercial
shipped the goods to Manila on board an inter-island vessel. When the goods
were about to leave the customs premises in Manila, on October 6, 1964, the
customs authorities held them for further verification, and upon examination
the goods were found to be different from the declaration in the cargo
manifest of the carrying vessel. Francindy Commercial subsequently
demanded from the customs authorities the release of the goods, asserting
that it is a purchaser in good faith of those goods; that a local purchase was
involved so the Bureau of Customs had no right to examine the goods; and
that the goods came from a coastwise port. On October 26, 1964, Francindy
Commercial filed in the Court of First Instance of Manila a petition for
mandamus against the Commissioner of Customs and the Collector of
Customs of the port of Manila to compel said customs authorities to release
the goods.
Francindy Commercial alleged in its petition for mandamus that the
Bureau of Customs had no jurisdiction over the goods because the same
were not imported to the port of Manila; that it was not liable for duties and
taxes because the transaction was not an original importation; that the goods
were not in the hands of the importer nor subject to said importer's control, nor
were the goods imported contrary to law with its (Francindy Commercial's)
knowledge; and that the importation had been terminated. On November 12,
1964, the Collector of Customs of Manila issued a warrant of seizure and
identification against the goods. On December 3, 1964, the Commissioner of
Customs and the Collector of Customs, as respondents in the mandamus
case, filed a motion to dismiss the petition on the grounds of lack of
jurisdiction, lack of cause of action, and in view of the pending seizure and
forfeiture proceedings. The court of first instance held resolution on the motion
to dismiss in abeyance pending decision on the merits. On December 14,
1964, the Court of First Instance of Manila issued a writ of preventive and
mandatory injunction, on prayer by Francindy Commercial, upon a bond of
P20,000.00. The Commissioner of Customs and the Collector of Customs
sought the lifting of the preliminary and mandatory injunction, and the
resolution of their motion to dismiss. The Court of First Instance of Manila,
however, on January 12, 1965, ordered them to comply with the preliminary
and mandatory injunction, upon the filing by Francindy Commercial of an
additional bond of P50,000.00. Said customs authorities thereupon filed with
this Court, on January 14, 1965, a petition for certiorari and prohibition with
preliminary injunction. In resolving the question raised in that case, this Court
held:
"This petition raises two related issues: first, has the Customs
bureau jurisdiction to seize the goods and institute forfeiture proceeding
against them? and (2) has the Court of First Instance jurisdiction to
entertain the petition for mandamus to compel the Customs authorities to
release the goods?
"Francindy Commercial contends that since the petition in the
Court of First Instance was filed (on October 26, 1964) ahead of the
issuance of the Customs warrant of seizure and forfeiture (on November
12, 1964), the Customs bureau should yield to the jurisdiction of the said
court.
"The record shows, however, that the goods in question were
actually seized on October 6, 1964, i.e., before Francindy Commercial
sued in court. The purpose of the seizure by the Customs bureau was to
verify whether or not Customs duties and taxes were paid for their
importation. Hence, on December 23, 1964, Customs released 22 bales
 thereof, for the same were found to have been released regularly from
the Cebu Port (Petition Annex 'L'). As to goods imported illegally or
released irregularly from Customs custody, these are subject to seizure
under Section 2530 m. of the Tariff and Customs Code (RA 1957).
"The Bureau of Customs has jurisdiction and power, among
others, to collect revenues from imported articles, fines and penalties
and suppress smuggling and other frauds on customs; and to
enforce tariff and customs laws (Sec. 602, Republic Act 1957).
"The goods in question are imported articles entered at the Port of
Cebu. Should they be found to have been released irregularly from
Customs custody in Cebu City, they are subject to seizure and forfeiture,
the proceedings for which comes within the jurisdiction of the Bureau of
Customs pursuant to Republic Act 1937.
"Said proceedings should be followed; the owner of the goods
may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966).
From the decision of the Commissioner of Customs appeal lies to the
Court of Tax Appeals, as provided in Sec. 2402 of Republic Act
1937 and Sec. 11 of Republic Act 1125. To permit recourse to the Court
of First Instance in cases of seizure of imported goods would in effect
render ineffective the power of the Customs authorities under the Tariff
Code and deprive the Court of Tax Appeals of one of its exclusive
appellate jurisdictions. As this Court has ruled in Pacis v. Averia,
supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and
forfeiture proceedings exclusively upon the Bureau of Customs and the
Court of Tax Appeals. Such law being special in nature, while the
Judiciary Act defining the jurisdiction of Courts of First Instance is a
general legislation, not to mention that the former are later enactments,
the Court of First Instance should yield to the jurisdiction of the Customs
authorities."
It is the settled rule, therefore, that the Bureau of Customs acquires
exclusive jurisdiction over imported goods, for the purposes of enforcement of
the customs laws, from the moment the goods are actually in its possession
or control, even if no warrant of seizure or detention had previously been
issued by the Collector of Customs in connection with seizure and forfeiture
proceedings. In the present case, the Bureau of Customs actually seized the
goods in question on November 4, 1966, and so from that date the Bureau of
Customs acquired jurisdiction over the goods for the purposes of the
enforcement of the tariff and customs laws, to the exclusion of the regular
courts. Much less then would the Court of First Instance of Manila have
jurisdiction over the goods in question after the Collector of Customs had
issued the warrant of seizure and detention on January 12, 1967. 10 And so, it
cannot be said, as respondents contend, that the issuance of said warrant
was only an attempt to divest the respondent Judge of jurisdiction over the
subject matter of the case. The court presided by respondent Judge did not
acquire jurisdiction over the goods in question when the petition for
mandamus was filed before it, and so there was no need of divesting it of
jurisdiction. Not having acquired jurisdiction over the goods, it follows that the
Court of First Instance of Manila had no jurisdiction to issue the questioned
order of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the
Manila Police Department, could not seize the goods in question without a
search warrant. This contention cannot be sustained. The Chief of the Manila
Police Department, Ricardo G. Papa, having been deputized in writing by the
Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was
his duty to make seizure, among others, of any cargo, articles or other
movable property when the same may be subject to forfeiture or liable for any
fine imposed under customs and tariff laws. 12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he
had reasonable cause to suspect the presence therein of dutiable articles
introduced into the Philippines contrary to law; and likewise to stop, search
and examine any vehicle, beast or person reasonably suspected of holding or
conveying such article as aforesaid. 13 It cannot be doubted, therefore, that
petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the
search and seizure of the goods in question. The Tariff and Customs
Code authorizes him to demand assistance of any police officer to effect said
search and seizure, and the latter has the legal duty to render said
assistance. 14 This was what happened precisely in the case of Lt. Martin
Alagao who, with his unit, made the search and seizure of the two trucks
loaded with the nine bales of goods in question at the Agrifina Circle. He was
given authority by the Chief of Police to make the interception of the cargo. 15
Petitioner Martin Alagao and his companion policemen had authority to
effect the seizure without any search warrant issued by a competent court.
The Tariff and Customs Code does not require said warrant in the instant
case. The Code authorizes persons having police authority under Section
2203 of the Tariff and Customs Code to enter, pass through or search any
land, inclosure, warehouse, store or building, not being a dwelling house;
and also to inspect, search and examine any vessel or aircraft and any trunk,
package, box or envelope or any person on board, or stop and search and
examine any vehicle, beast or person suspected of holding or conveying any
dutiable or prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said cases. 16 But in the
search of a dwelling house, the Code provides that said "dwelling house may
be entered and searched only upon warrant issued by a judge or justice of the
peace . . ." 17 It is our considered view, therefore, that except in the case of
the search of a dwelling house, persons exercising police authority under
the customs law may effect search and seizure without a search warrant
in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39
A.L.R., 790, 799, wherein the court, considering a legal provision similar to
Section 2211 of the Philippine Tariff and Customs Code, said as follows:
"Thus, contemporaneously with the adoption of the 4th
Amendment, we find in the first Congress, and in the following second
and fourth Congresses, a difference made as to the necessity for a
search warrant between goods subject to forfeiture, when concealed in a
dwelling house or similar place, and like goods in course of
transportation and concealed in a movable vessel, where they readily
could be put out of reach of a search warrant . . ."
"Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.
231, 232, chap. 94), it was made lawful for customs officers not only to
board and search vessels within their own and adjoining districts, but
also to stop, search, and examine any vehicle, beast, or person on which
or whom they should suspect there was merchandise which was subject
to duty or had been introduced into the United States in any manner
contrary to law, whether by the person in charge of the vehicle or beast
or otherwise, and if they should find any goods, wares, or merchandise
thereon, which they had probable cause to believe had been so
unlawfully brought into the country, to seize and secure the same, and
the vehicle or beast as well, for trial and forfeiture. This Act was renewed
April 27, 1816 (3 Stat. at L. 315, chap. 100), for a year and expired. The
Act of February 28, 1865, revived § 2 of the Act of 1815, above
described, chap. 67, 13 Stat. at L. 441. The substance of this section
was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201,
14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes
as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161.
Neither § 3061 nor any of its earlier counterparts has ever been attacked
as unconstitutional. Indeed, that section was referred to and treated as
operative by this court in Von Cotzhausen v. Nazro, 107 U. S. 215, 219,
27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503 . . ."
In the instant case, we note that petitioner Martin Alagao and his
companion policemen did not have to make any search before they seized the
two trucks and their cargo. In their original petition, and amended petition, in
the court below Remedios Mago and Valentin Lanopa did not even allege that
there was a search. 18 All that they complained of was,
"That while the trucks were on their way, they
were intercepted without any search warrant near the Agrifina Circle and
taken to the Manila Police, where they were detained."
 But even if there was a search, there is still authority to the effect
that no search warrant would be needed under the circumstances obtaining in
the instant case. Thus, it has been held that:
"The guaranty of freedom from unreasonable searches and
seizures is construed as recognizing a necessary difference between a
search of a dwelling house or other structure in respect of which a
search warrant may readily be obtained and a search of a ship,
motorboat, wagon, or automobile for contraband goods, where it is not
practicable to secure a warrant, because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be
sought." (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267
U.S., 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case,
320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27
A.L.R., 686), the question raised by defendant's counsel was whether an
automobile truck or an automobile could be searched without search warrant
or other process and the goods therein seized used afterwards as evidence in
a trial for violation of the prohibition laws of the State. Same counsel
contended the negative, urging the constitutional provision forbidding
unreasonable searches and seizures. The Court said:
". . . Neither our state nor the Federal Constitution directly
prohibits search and seizure without a warrant, as is sometimes
asserted. Only 'unreasonable' search and seizure is forbidden. . . .
". . . The question whether a seizure or a search is unreasonable
in the language of the Constitution is a judicial and not a legislative
question; but in determining whether a seizure is or is not unreasonable,
all of the circumstances under which it is made must be looked to.
"The automobile is a swift and powerful vehicle of recent
development, which has multiplied by quantity production and taken
possession of our highways in battalions, until the slower, animal- drawn
vehicles, with their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense quantities, and with a
capacity for speed rivaling express trains, they furnish for successful
commission of crime a disguising means of silent approach and swift
escape unknown in the history of the world before their advent. The
question of their police control and reasonable search on highways or
other public places is a serious question far deeper and broader than
their use in so-called "bootlegging' or 'rum running,' which is itself
is no small matter. While a possession in the sense of private ownership,
they are but a vehicle constructed for travel and transportation on
highways. Their active use is not in homes or on private premises, the
privacy of which the law especially guards from search and seizure
without process. The baffling extent to which they are successfully
 utilized to facilitate commission of crime of all degrees, from those
against morality, chastity, and decency, to robbery, rape, burglary, and
murder, is a matter of common knowledge. Upon that problem a
condition, and not a theory, confronts proper administration of our
criminal laws. Whether search of and seizure from an automobile upon a
highway or other public place without a search warrant is unreasonable
is in its final analysis to be determined as a judicial question in view of all
the circumstances under which it is made."
Having declared that the seizure by the members of the Manila Police
Department of the goods in question was in accordance with law and by that
seizure the Bureau of Customs had acquired jurisdiction over the goods for
the purposes of the enforcement of the customs and tariff laws, to the
exclusion of the Court of First Instance of Manila, We have thus resolved the
principal and decisive issue in the present case. We do not consider it
necessary, for the purposes of this decision, to discuss the incidental issues
raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by
petitioners;
(b) Declaring null and void, for having been issued without jurisdiction,
the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in
Civil Case No. 67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court
on March 31, 1967 restraining respondent Judge from executing, enforcing
and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the
Court of First Instance of Manila, and from proceeding in any manner in said
case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First
Instance of Manila; and
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
||| (Papa v. Mago, G.R. No. L-27360, [February 28, 1968], 130 PHIL 886-905)

People vs. Musa [G.R. No. 96177, January 27, 1993]

[G.R. No. 96177. January 27, 1993.]

 PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUGS ACT (R.A. 6425); ILLEGAL SALE

OF MARIJUANA DRUGS; FAMILIARITY BETWEEN BUYER AND SELLER,
NOT MATERIAL. — The contention that the appellant could not have transacted
with Sgt. Ani because they do not know each other is without merit. The day
before the buy-bust operation, Sgt. Ani conducted a test-buy and he successfully
bought a wrapper of marijuana from the appellant. Through this previous
transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to
sell more marijuana to Sgt. Ani the following day, during the buy-bust operation.
Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the transaction
may be strangers, but their agreement and the acts constituting the sale and
delivery of the marijuana.
2. ID.; ID.; ID.; PRESENCE OF OTHER PEOPLE, NOT CRUCIAL. — The
appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and
manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial and the presence of
other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco, these
factors may sometimes camouflage the commission of the crime. In the instant
case, the fact that the other people inside the appellant's house are known to the
appellant may have given him some assurance that these people will not report
him to the authorities.
3. ID.; ID.; ID.; CASE OF PEOPLE VS. ALE, NOT APPLICABLE IN CASE AT
BAR. — The case of People v. Ale does not apply here because the policeman
in that case testified that he and his companion were certain that the appellant
therein handed marijuana cigarettes to the poseur-buyer based on the
appearance of the cigarette sticks. The Court rejected this claim. In the case at
bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant
hand over marijuana to Sgt. Ani. What he said was that there was an exchange
of certain articles between the two. Contrary to the contention of the appellant, it
was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100
meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the
former "something."
4. REMEDIAL LAW; EVIDENCE; CORROBORATIVE EVIDENCE SUPPORTING
DIRECT EVIDENCE; SUFFICIENT TO PROVE THE CRIME COMMITTED. —
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that
what Sgt. Ani received from the appellant was marijuana because of the
distance, his testimony, nevertheless, corroborated the direct evidence, which
the Court earlier ruled to be convincing. The corroborative testimony of T/Sgt.
Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court
has ruled that the fact that the police officers who accompanied the poseur-buyer
were unable to see exactly what the appellant gave the poseur-buyer because of
their distance or position will not be fatal to the prosecution's case provided there
exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-
buyer, which is sufficient to prove the consummation of the sale of the prohibited
drug.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM AGAINST
UNREASONABLE SEARCH AND SEIZURE; EVIDENCE OBTAINED IN
VIOLATION THEREOF. — Built into the Constitution are guarantees on the
freedom of every individual against unreasonable searches and seizures.
Furthermore, the Constitution, in conformity with the doctrine laid down
in Stonehill v. Diokno, (G.R. No. L-19550, June 19, 1967, 20 SCRA 383)
declares inadmissible, any evidence obtained in violation of the freedom from
unreasonable searches and seizures.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH & SEIZURE; SEARCH
INCIDENTAL TO LAWFUL ARREST. — While a valid search warrant is
generally necessary before a search and seizure may be effected, exceptions to
this rule are recognized. Thus, in Alvero v. Dizon, the Court stated that "[t]he
most important exception to the necessity for a search warrant is the right of
search and seizure as an incident to a lawful arrest." Rule 126, Section 12 of the
Rules of Court expressly authorizes a warrantless search and seizure incident to
a lawful arrest. There is no doubt that the warrantless search incidental to a
lawful arrest authorizes the arresting officer to make a search upon the person of
the person arrested. As early as 1909, the Court has ruled that "[a]n officer
making an arrest may take from the person arrested and money or property
found upon his person which was used in the commission of the crime or was the
fruit of the crime or which might furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the
cause . . ." Hence, in a buy-bust operation conducted to entrap a drug-pusher,
the law enforcement agents may seize the marked money found on the person of
the pusher immediately after the arrest even without arrest and search warrants.
7. ID.; ID.; ID.; ID.; DOCTRINE OF "PLAIN VIEW". — The warrantless search
and seizure, as an incident to a suspect's lawful arrest, may extend beyond the
person of the one arrested to include the premises or surroundings under his
immediate control. Objects in the "plain view" of an officer who has the right to be
in the position to have that view are subject to seizure and may be presented as
evidence.
8. ID.; ID.; ID.; ID.; ID.; LIMITATION. — The "plain view" doctrine may not,
however, be used to launch unbridled searches and indiscriminate seizures nor
to extend a general exploratory search made solely to find evidence of
defendant's guilt. The "plain view" doctrine is usually applied where a police
officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. It has also been suggested
that even if an object is observed in "plain view," the "plain view" doctrine
will not justify the seizure of the object where the incriminating nature of
the object is not apparent from the "plain view" of the object. Stated
differently, it must be immediately apparent to the police that the items that
they observe may be evidence of a crime, contraband, or otherwise subject
to seizure.
9. ID.; ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. — In the instant
case, the appellant was arrested and his person searched in the living room.
Failing to retrieve the marked money which they hoped to find, the NARCOM
agents searched the whole house and found the plastic bag in the kitchen. The
plastic bag was, therefore, not within their "plain view" when they arrested the
appellant as to justify its seizure. The NARCOM agents had to move from one
portion of the house to another before they sighted the plastic bag. Moreover,
when the NARCOM agents saw the plastic bag hanging in one corner of the
kitchen, they had no clue as to its contents. They had to ask the appellant what
the bag contained. When the appellant refused to respond, they opened it and
found the marijuana. Unlike Ker v. California, where the marijuana was visible to
the police officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they not forcibly
opened it. Even assuming then, that the NARCOM agents inadvertently came
across the plastic bag because it was within their "plain view," what may be said
to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed
that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are obvious to an
observer. We, therefore, hold that under the circumstances of the case, the "plain
view" doctrine does not apply and the marijuana contained in the plastic bag was
seized illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution.
10. REMEDIAL LAW; EVIDENCE; QUANTUM OF PROOF REQUIRED IN
CRIMINAL; SATISFIED IN CASE AT BAR. — By virtue of the testimonies of Sgt.
Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by the appellant
to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the
crime charged has been proved beyond reasonable doubt.

DECISION

ROMERO, J : p

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision,
dated August 31, 1990, 1 of the Regional Trial Court (RTC) of Zamboanga City,
Branch XII, finding him guilty of selling marijuana in violation of Article II, Section
4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
"That on or about December 14, 1989, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there,
wilfully, unlawfully and feloniously sell to one SGT. AMADO ANI, two (2)
wrappers containing dried marijuana leaves, knowing the same to be a
prohibited drug.
CONTRARY TO LAW." 2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt.
Amado Ani, Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City,
who acted as poseur-buyer in the buy-bust operation made against the appellant;
(2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City,
who was the NARCOM team leader of the buy-bust operation; and (3) Athena
Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP
Crime Laboratory of Regional Command (RECOM) 9. The evidence of the
prosecution was summarized by the trial court as follows: LLjur

"Prosecution evidence shows that in the morning of December 13, 1989,

T/Sgt. Jesus Belarga, leader of a NARCOTICS COMMAND (NARCOM)
team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to
conduct surveillance and test buy on a certain Mari Musa of Suterville,
Zamboanga City. Information received from civilian informer was that
this Mari Musa was engaged in selling marijuana in said place. So Sgt.
Amado Ani, another NARCOM agent, proceeded to Suterville, in
company with a NARCOM civilian informer, to the house of Mari Musa to
which house the civilian informer had guided him. The same civilian
informer had also described to him the appearance of Mari Musa.
Amado Ani was able to buy one newspaper-wrapped dried marijuana
(Exh. 'E') for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt.
Belarga inspected the stuff turned over to him and found it to be
marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was
planned. Sgt. Amado Ani was assigned as the poseur buyer for which
purpose he was given P20.00 (with SN GA955883) by Belarga. The buy-
bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh
Sali Mihasun, Chief of Investigation Section, and for which Belarga
signed a receipt (Exh. 'L' & 'L-1'). The team under Sgt. Foncargas was
assigned as back-up security. A pre-arranged signal was arranged
consisting of Sgt. Ani's raising his right hand, after he had succeeded to
buy the marijuana. The two NARCOM teams proceeded to the target site
in two civilian vehicles. Belarga's team was composed of Sgt. Belarga,
team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa,
while the rest of the NARCOM group positioned themselves at strategic
places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga
could see what went on between Ani and suspect Mari Musa from where
he was. Ani approached Mari Musa, who came out of his house, and
asked Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the money,
Mari Musa went back to his house and came back and gave Amado Ani
two newspaper wrappers containing dried marijuana. Ani opened the two
wrappers and inspected the contents. Convinced that the contents were
marijuana, Ani walked back towards his companions and raised his right
hand. The two NARCOM teams, riding the two civilian vehicles, sped
towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons
inside his house: Mari Musa, another boy, and two women, one of whom
Ani and Belarga later came to know to be Mari Musa's wife. The second
time, Ani with the NARCOM team returned to Mari Musa's house, the
woman, who was later known as Mari Musa's wife, slipped away from
the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00
marked money with him. Mari Musa was then asked where the P20.00
was and he told the NARCOM team he has given the money to his wife
(who had slipped away). Sgt. Belarga also found a plastic bag containing
dried marijuana inside it somewhere in the kitchen. Mari Musa was then
placed under arrest and brought to the NARCOM office. At Suterville,
 Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped
marijuana he had earlier bought from Mari Musa (Exhs. 'C' & 'D'). LexLib

In the NARCOM office, Mari Musa first gave his name as Hussin Musa.
Later on, Mari Musa gave his true name - Mari Musa. T/Sgt. Jesus
Belarga turned over the two newspaper-wrapped marijuana (bought at
the buy-bust), the one newspaper-wrapped marijuana (bought at the
test-buy) and the plastic bag containing more marijuana (which had been
taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for laboratory examination. The turnover of
the marijuana specimen to the PC Crime Laboratory was by way of a
letter-request, dated December 14, 1989 (Exh. 'B'), which was stamped
'RECEIVED' by the PC Crime Laboratory (Exh. 'E-1') on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime
Laboratory, examined the marijuana specimens subjecting the same to
her three tests. All submitted specimens she examined gave positive
results for the presence of marijuana. Mrs. Anderson reported the results
of her examination in her Chemistry Report D-100-89, dated December
14, 1989, (Exh. 'J', 'J-1', 'J-2', 'J-3', 'J-4' and 'J-5'). Mrs. Anderson
identified in court the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of
each specimen written with red ink on each wrapper (Exhs. 'C-1' and 'D-
1'). She also identified the one newspaper-wrapped marijuana bought at
the test-buy on December 13, 1989, through her markings (Exh. 'E-1').
Mrs. Anderson also identified her Chemistry Report (Exh. 'J' & sub-
markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped
marijuana through his initial, the words 'buy-bust' and the words
'December 14, 1989, 2:45 P.M.' (written on Exhs. 'C' and 'D'). Belarga
also identified the receipt of the P20 marked money (with SN GA955883)
(Exh. 'L'), dated December 14, 1989, and his signature thereon (Exh. 'L-
1'). He also identified the letter-request, dated December 14, 1989,
addressed to the PC Crime Laboratory (Exh. 'B') and his signature
thereon (Exh. 'B-2') and the stamp of the PC Crime Laboratory marked
'RECEIVED' (Exh. 'B-1')." 4
For the defense, the following testified as witnesses: (1) the accused-appellant
Mari H. Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the
version of the defense, thus:
"[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was
in his house at Suterville, Zamboanga City. With him were his wife,
Ahara Musa, known as Ara, his one-year old child, a woman manicurist,
and a male cousin named Abdul Musa. About 1:30 that afternoon, while
he was being manicured at one hand, his wife was inside the one room
of their house, putting their child to sleep. Three NARCOM agents, who
 introduced themselves as NARCOM agents, dressed in civilian clothes,
got inside Mari Musa's house whose door was open. The NARCOM
agents did not ask permission to enter the house but simply announced
that they were NARCOM agents. The NARCOM agents searched
Mari Musa's house and Mari Musa asked them if they had a search
warrant. The NARCOM agents were just silent. The NARCOM agents
found a red plastic bag whose contents, Mari Musa said, he did not
know. He also did not know if the plastic bag belonged to his brother,
Faisal, who was living with him, or his father, who was living in another
house about ten arms-length away. Mari Musa, then, was handcuffed
and when Mari Musa asked why, the NARCOM agents told him for
clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM
Office at Calarian, Zamboanga City. Inside the NARCOM Office,
Mari Musa was investigated by one NARCOM agent which investigation
was reduced into writing. The writing or document was interpreted to
Mari Musa in Tagalog. The document stated that the marijuana belonged
to Mari Musa and Mari Musa was asked to sign it. But
Mari Musa refused to sign because the marijuana did not belong to him.
Mari Musa said he was not told that he was entitled to the assistance of
counsel, although he himself told the NARCOM agents he wanted to be
assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his
right hand and his fingers were pressed which felt very painful. The
NARCOM agents boxed him and Mari Musa lost consciousness. While
Mari Musa was maltreated, he said his wife was outside the NARCOM
building. The very day he was arrested (on cross-examination
Mari Musa said it was on the next day), Mari Musa was brought to the
Fiscal's Office by three NARCOM agents. The fiscal asked him if the
marijuana was owned by him and he said "not." After that single
question, Mari Musa was brought to the City Jail. Mari Musa said he did
not tell the fiscal that he had been maltreated by the NARCOM agents
because he was afraid he might be maltreated in the fiscal's office.cdll

Mari Musa denied the NARCOM agents' charge that he had sold two
wrappers of marijuana to them; that he had received from them a P20.00
bill which he had given to his wife. He did not sell marijuana because he
was afraid that was against the law and that the person selling marijuana
was caught by the authorities; and he had a wife and a very small child
to support. Mari Musa said he had not been arrested for selling
marijuana before. 5
After trial, the trial court rendered the assailed decision with the following
disposition:
"WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond
reasonable doubt of selling marijuana and pursuant to Sec. 4, Art II
 of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay
the fine of P20,000.00, the latter imposed without subsidiary
imprisonment." 6
In this appeal, the appellant contends that his guilt was not proved beyond
reasonable doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not
credible because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the
other NARCOM agents were personally known by the appellant or vice-versa;
and (2) there was no witness to the alleged giving of the two wrappers of
marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus
Belarga, he conducted a test-buy operation on the appellant whereby he bought
one wrapper of marijuana for P15.00 from the latter. 7 He reported the successful
operation to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga
conducted a conference to organize a buy-bust operation for the following day. 9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles
headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of
operation, which was the appellant's house located in Laquian Compound,
Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose
other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked
P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at
strategic places. 11 Sgt. Ani approached the house. Outside the house, the
appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more
marijuana. 12 Sgt. Ani gave him the marked P20.00 bill and the appellant went
inside the house and brought back two paper wrappers containing marijuana
which he handed to Sgt. Ani. 13 From his position, Sgt. Ani could see that there
were other people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made
the pre-arranged signal of raising his right hand. 15 The NARCOM agents,
accompanied by Sgt. Ani, went inside the house and made the arrest. The
agents searched the appellant and unable to find the marked money, they asked
him where it was. The appellant said that he gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani
regarding the buy-bust operation, which resulted in the apprehension,
prosecution and subsequent conviction of the appellant, to be direct, lucid and
forthright. Being totally untainted by contradictions in any of the material points, it
deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani
because they do not know each other is without merit. The day before the buy-
bust operation, Sgt. Ani conducted a test-buy and he successfully bought a
wrapper of marijuana from the appellant. Through this previous transaction, Sgt.
Ani was able to gain the appellant's confidence for the latter to sell more
marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover,
the Court has held that what matters is not an existing familiarity between the
buyer and the seller, for quite often, the parties to the transaction may be
strangers, but their agreement and the acts constituting the sale and delivery of
the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and
manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial 18 and the presence of
other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v.
Paco, 19 these factors may sometimes camouflage the commission of the crime.
In the instant case, the fact that the other people inside the appellant's house are
known to the appellant may have given him some assurance that
these people will not report him to the authorities. cdll

The appellant, besides assailing Sgt. Ani's credibility, also questions the
credibility of T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga
admitted that he was about 90 meters away from Sgt. Ani and the appellant, he
could not have possibly witnessed the sale. The appellant invokes People v.
Ale 20 where the Court observed that from a distance of 10-15 meters, a
policeman cannot distinguish between marijuana cigarette from ordinary ones by
the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly
did not see the sale, the appellant contends that the uncorroborated testimony of
Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified
that he and his companion were certain that the appellant therein handed
marijuana cigarettes to the poseur-buyer based on the appearance of the
cigarette sticks. The Court rejected this claim, stating that:
"This Court cannot give full credit to the testimonies of the prosecution
witnesses marked as they are with contradictions and tainted with
inaccuracies.
Biñan testified that they were able to tell that the four cigarettes were
marijuana cigarettes because according to him, the rolling of ordinary
cigarettes are different from those of marijuana cigarettes. (tsn,
November 13, 1984, p. 10).
 It is however, incredible to believe that they could discern the type of
rolling done on those cigarettes from the distance where they were
observing the alleged sale of more or less 10 to 15 meters." 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw
the appellant hand over marijuana to Sgt. Ani. What he said was that there was
an exchange of certain articles between the two. The relevant portion of T/Sgt.
Belarga's testimony reads: 2 2
Q Now, do you remember whether Sgt. Ani was able to reach the house
of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt.
Biong were boarded, I saw that Sgt. Ani proceeded to the house
near the road and he was met by one person and later known as
Mari Musa who was at the time wearing short pants and later on I
saw that Sgt. Ani handed something to him, thereafter received by
Mari Musa and went inside the house and came back later and
handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt.
Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the
appellant "something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that
what Sgt. Ani received from the appellant was marijuana because of the
distance, his testimony, nevertheless, corroborated the direct evidence, which
the Court earlier ruled to be convincing, presented by Sgt. Ani on the following
material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance
and test-buy operation on the appellant at Suterville, Zamboanga City on
December 13, 1939; 23 (2) later that same day, Sgt. Ani went back to their office
and reported a successful operation and turned over to T/Sgt. Belarga one
wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a
buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt.
Belarga led a team of NARCOM agents who went to Suterville, Zamboanga
City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be
used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville,
Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents stayed in the vehicles
and others positioned themselves in strategic places; 28 the appellant met Sgt. Ani and an
exchange of articles took place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence
given by Sgt. Ani. Additionally, the Court has ruled that the fact that the police
officers who accompanied the poseur-buyer were unable to see exactly what the
appellant gave the poseur-buyer because of their distance or position will not be
fatal to the prosecution's case 30 provided there exists other evidence, direct or
circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to
prove the consummation of the sale of the prohibited drug. cdll

The appellant next assails the seizure and admission as evidence of a plastic
bag containing marijuana which the NARCOM agents found in the appellant's
kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other
NARCOM agents, the latter moved in and arrested the appellant inside the
house. They searched him to retrieve the marked money but didn't find it. Upon
being questioned, the appellant said that he gave the marked money to his
wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed
what T/Sgt. Belarga described as a "cellophane colored white and stripe hanging
at the corner of the kitchen." 32 They asked the appellant about its contents but
failing to get a response, they opened it and found dried marijuana leaves. At the
trial, the appellant questioned the admissibility of the plastic bag and the
marijuana it contains but the trial court issued an Order ruling that these are
admissible in evidence. 33
Built into the Constitution are guarantees on the freedom of every individual
against unreasonable searches and seizures by providing in Article III, Section 2,
the following:
"The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witness he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."
Furthermore, the Constitution, in conformity with the doctrine laid down
in Stonehill v. Diokno, 34 declares inadmissible, any evidence obtained in
violation of the freedom from unreasonable searches and seizures. 35
While a valid search warrant is generally necessary before a search and seizure
may be effected, exceptions to this rule are recognized. Thus, in Alvero v.
Dizon, 36 the Court stated that "[t]he most important exception to the necessity for
a search warrant is the right of search and seizure as an incident to a lawful
arrest." 37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless
search and seizure incident to a lawful arrest, thus:
SECTION 12. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search
warrant.
There is no doubt that the warrantless search incidental to a lawful arrest
authorizes the arresting officer to make a search upon the person of the person
arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest
may take from the person arrested and money or property found upon his person
which was used in the commission of the crime or was the fruit of the crime or
which might furnish the prisoner with the means of committing violence or of
escaping, or which may be used as evidence in the trial of the cause." 38 Hence,
in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement
agents may seize the marked money found on the person of the pusher
immediately after the arrest even without arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person of the appellant
after arresting him in his house but found nothing. They then searched the entire
house and, in the kitchen, found and seized a plastic bag hanging in a corner. LLjur

The warrantless search and seizure, as an incident to a suspect's lawful arrest,

may extend beyond the person of the one arrested to include the premises or
surroundings under his immediate control. 40 Objects in the "plain view" of an
officer who has the right to be in the position to have that view are subject to
seizure and may be presented as evidence. 41
In Ker v. California, 42 police officers, without securing a search warrant but
having information that the defendant husband was selling marijuana from his
apartment, obtained from the building manager a passkey to defendants'
apartment, and entered it. There they found the defendant husband in the living
room. The defendant wife emerged from the kitchen, and one of the officers, after
identifying himself, observed through the open doorway of the kitchen, a small
scale atop the kitchen sink, upon which lay a brick-shaped package containing
green leafy substance which he recognized as marijuana. The package of
marijuana was used as evidence in prosecuting defendants for violation of the
Narcotic Law. The admissibility of the package was challenged before the U.S.
Supreme Court, which held, after observing that it was not unreasonable for the
officer to walk to the doorway of the adjacent kitchen on seeing the defendant
wife emerge therefrom, that "the discovery of the brick of marijuana did not
constitute a search, since the officer merely saw what was placed before him in
full view." 43 The U.S. Supreme Court ruled that the warrantless seizure of the
marijuana was legal on the basis of the "plain view" doctrine and upheld the
admissibility of the seized drugs as part of the prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled
searches and indiscriminate seizures nor to extend a general exploratory search
made solely to find evidence of defendant's guilt. The "plain view" doctrine is
usually applied where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object. 45
Furthermore, the U.S. Supreme Court stated the following limitations on the
application of the doctrine:
"What the 'plain view' cases have in common is that the police officer in
each of them had a prior justification for an intrusion in the course of
which he came inadvertently across a piece of evidence incriminating
the accused. The doctrine serves to supplement the prior justification —
whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present
unconnected with a search directed against the accused — and permits
the warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the
police that they have evidence before them; the 'plain view' doctrine may
not be used to extend a general exploratory search from one object to
another until something incriminating at last emerges." 46
It has also been suggested that even if an object is observed in "plain view," the
"plain view" doctrine will not justify the seizure of the object where the
incriminating nature of the object is not apparent from the "plain view" of the
object. 47 Stated differently, it must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband, or otherwise
subject to seizure.
In the instant case, the appellant was arrested and his person searched in the
living room. Failing to retrieve the marked money which they hoped to find, the
NARCOM agents searched the whole house and found the plastic bag in the
kitchen. The plastic bag was, therefore, not within their "plain view" when they
arrested the appellant as to justify its seizure. The NARCOM agents had to move
from one portion of the house to another before they sighted the plastic bag.
Unlike Ker v. California, where the police officer had reason to walk to the
doorway of the adjacent kitchen and from which position he saw the marijuana,
the NARCOM agents in this case went from room to room with the obvious
intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner
of the kitchen, they had no clue as to its contents. They had to ask the appellant
what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana. Unlike Ker v. California, where the marijuana was
visible to the police officer's eyes, the NARCOM agents in this case could not
have discovered the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM agents inadvertently
came across the plastic bag because it was within their "plain view," what may be
said to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not
immediately apparent from the "plain view" of said object. It cannot be claimed
that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transparency, or otherwise, that its contents are obvious to an
observer. 48
We, therefore, hold that under the circumstances of the case, the "plain view"
doctrine does not apply and the marijuana contained in the plastic bag was
seized illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution.cdrep

The exclusion of this particular evidence does not, however, diminish, in any
way, the damaging effect of the other pieces of evidence presented by the
prosecution to prove that the appellant sold marijuana, in violation of Article II,
Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the
testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana
sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the
appellant of the crime charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial
Court AFFIRMED.
SO ORDERED.
(People v. Musa y Hantatalu, G.R. No. 96177, [January 27, 1993], 291 PHIL
|||

623-642)

People vs. Peralta, G.R. No. 145176, March 30, 2004

[G.R. No. 145176. March 30, 2004.]

PEOPLE OF THE PHILIPPINES, appellee, vs.

SANTIAGO PERALTA y POLIDARIO (at large), ARMANDO
DATUIN JR. y GRANADOS (at large), ULYSSES GARCIA y
TUPAS, MIGUELITO DE LEON y LUCIANO, LIBRANDO
FLORES y CRUZ and ANTONIO LOYOLA y SALISI, accused,

ULYSSES GARCIA y TUPAS, MIGUELITO DE LEON y

LUCIANO, LIBRANDO FLORES y CRUZ and ANTONIO
LOYOLA y SALISI, appellants.
 DECISION

PANGANIBAN, J : p

The right of the accused to counsel demands effective, vigilant and

independent representation. The lawyer's role cannot be reduced to being that of
a mere witness to the signing of an extra-judicial confession.
The Case
Before the Court is an appeal from the August 21, 2000 Decision 1 of the
Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-
112322. Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano,
Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-accused
— Santiago Peralta y Polidario and Armando Datuin Jr. y Granados — were
convicted therein of qualified theft. The dispositive portion of the Decision reads:
"WHEREFORE, the accused, Santiago Peralta y Polidario,
Armando Datuin, Jr. y Granados, Ulysses Garcia y Tupas, Miguelito De
Leon y Luciano, Librando Flores y Cruz and Antonio Loyola y Salisi, are
hereby convicted of the crime of qualified theft of P194,190.00 and
sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law, and to pay the costs. Moreover, all
the accused are ordered to pay the Central Bank of the Philippines, now
Bangko Sentral ng Pilipinas, actual damages in the sum of P194,190.00
with interest thereon at the legal rate from the date of the filing of this
action, November 9, 1992, until fully paid." 2
In an Information dated November 9, 1992, 3 appellants and their co-
accused were charged as follows:
"That sometime in the year 1990 and including November 4,
1992, in the City of Manila, Philippines, the said accused, conspiring and
confederating with others whose true names, identities and present
whereabouts are still unknown and helping one another, did then and
there wilfully, unlawfully and feloniously, with intent to gain and without
the knowledge and consent of the owner thereof, take, steal and carry
away punctured currency notes due for shredding in the total amount of
P194,190.00, belonging to the Central Bank of the Philippines as
represented by Pedro Labita y Cabriga, to the damage and prejudice of
the latter in the aforesaid sum of P194,190.00 Philippine currency;
"That said accused Santiago Peralta y Polidario, Armando Datuin,
Jr. y Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano
and Antonio Loyola y Salisi committed said offense with grave abuse of
confidence they being at the time employed as Currency Reviewers,
 Driver, Currency Assistant I and Money Counter of the offended party
and as such they had free access to the property stolen." 4
Garcia was arrested on November 4, 1992; and his co-accused, on
November 9, 1992. Appellants, however, obtained two Release Orders from RTC
Vice Executive Judge Corona Ibay-Somera on November 9 and 10, 1992, upon
their filing of a cash bond to secure their appearance whenever required by the
trial court. 5
During their arraignment on May 4, 1993, appellants, assisted by their
respective counsels, pleaded not guilty. 6 On September 30, 1998, the trial court
declared that Datuin Jr. and Peralta were at large, because they had failed to
appear in court despite notice. 7
After trial in due course, they were all found guilty and convicted of
qualified theft in the appealed Decision.
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presents the prosecution's
version of the facts as follows:
"About 10:00 o'clock in the morning of November 4, 1992, Pedro
Labita of Central Bank of the Philippines (CBP) [now Bangko Sentral ng
Pilipinas (BSP)] went to the Theft and Robbery Section of Western
Police District Command (WPDC), and filed a complaint for Qualified
Theft against Santiago Peralta, Armando Datuin, Jr., Ulysses Garcia,
Miguelito de Leon, Librando Flores and Antonio S. Loyola.
"Pedro Labita submitted to SPO4 Cielito Coronel, the
investigating officer at WPDC, punctured currency notes in P100.00 and
P500.00 bills with a face value of Php194,190.00. Said notes were
allegedly recovered by the BSP Cash Department during its cash
counting of punctured currency bills submitted by different banks to the
latter. The punctured bills were rejected by the BSP money counter
machine and were later submitted to the investigation staff of the BSP
Cash Department. As a result of the investigation, it was determined that
said rejected currency bills were actually punctured notes already due
for shredding. These currency bills were punctured because they
were no longer intended for circulation. Before these notes could be
shredded, they were stolen from the BSP by the above-named accused.
"On the basis of the complaint filed by Pedro Labita, Ulysses
Garcia was apprehended in front of Golden Gate Subdivision, Las Piñas
City, while he was waiting for a passenger bus on his way to the BSP.
Garcia was brought to the police station for investigation.
 "On November 4, 5 and 6, 1992, while in the custody of the police
officers, Garcia gave three separate statements admitting his guilt and
participation in the crime charged. He also identified the other named
accused as his cohorts and accomplices and narrated the participation
of each and everyone of them.
"On the basis of Garcia's sworn statements, the other named
accused were invited for questioning at the police station and were
subsequently charged with qualified theft together with
Garcia." 8 (Citations omitted)
Version of the Defense
The defense states its version of the facts in the following manner:
"Accused-appellant Garcia served as a driver of the armored car
of the Central Bank from 1978 to 1994.
"On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man
who had identified himself as a police officer arrested accused-appellant
Garcia while waiting for a passenger bus in front of the Golden Gate
Subdivision, Las Piñas City. He was arrested without any warrant for his
arrest. The police officer who had arrested accused-appellant Garcia
dragged the latter across the street and forced him to ride . . . a car.
"While inside the car, he was blindfolded, his hands were
handcuffed behind his back, and he was made to bend with his chest
touching his knees. Somebody from behind hit him and he heard some
of the occupants of the car say that he would be salvaged if he would not
tell the truth. When the occupants of the car mentioned perforated notes,
he told them that he does not know anything about those notes.
"After the car had stopped, he was dragged out of the car and . . .
up and down . . . the stairs. While being dragged out of the car, he felt
somebody frisk his pocket.
"At a safe house, somebody mentioned to him the names of his
co-accused and he told them that he does not know his co-accused. . . .
Whenever he would deny knowing his co-accused, somebody would box
him on his chest. Somebody poured water on accused-appellant
Garcia's nose while lying on the bench. He was able to spit out the water
that had been poured on his nose [at first], but somebody covered his
mouth. As a result, he could not breath[e].
"When accused-appellant Garcia realized that he could not bear
the torture anymore, he decided to cooperate with the police, and they
stopped the water pouring and allowed him to sit down.
"Accused-appellant Garcia heard people talking and he heard
somebody utter, 'may nakikinig.' Suddenly his two ears were hit with
open palm[s]. . . . As he was being brought down, he felt somebody
return his personal belongings to his pocket. Accused-appellant Garcia's
personal belongings consisted of [his] driver's license, important papers
and coin purse.
"He was forced to ride . . . the car still with blindfold. His blindfold
and handcuffs were removed when he was at the office of police officer
Dante Dimagmaliw at the Western Police District, U.N. Avenue, Manila.
"SPO4 Cielito Coronel asked accused-appellant Garcia about the
latter's name, age and address. The arrival of Mr. Pedro Labita of the
Cash Department, Central Bank of the Philippines, interrupted the
interview, and Mr. Labita instructed SPO4 Coronel to get accused-
appellant Garcia's wallet and examine the contents thereof. SPO4
Coronel supposedly found three pieces of P100 perforated bill in
accused-appellant Garcia's wallet and the former insisted that they
recovered the said perforated notes from accused-appellant's wallet.
SPO4 Coronel took down the statement of Mr. Labita.
"It was actually Mr. Labita, and not accused-appellant Garcia,
who gave the answers appearing in accused-appellant Garcia's alleged
three sworn statements dated November 4, 1992, November 5, 1992
and . . . November 6, 1992. cASIED

"At or about 6:00 p.m. on November 5, 1992, accused-appellant

Garcia was brought to the cell of the Theft and Robbery Section of the
WPD. At or about 8:00 p.m., he was brought to the office of Col. Alladin
Dimagmaliw where his co-accused were also inside. He did not identify
his co-accused, but he merely placed his hands on the shoulders of
each of his co-accused, upon being requested, and Mr. Labita took . . .
pictures while he was doing the said act.
"Accused-appellant Garcia came to know Atty. Francisco
Sanchez of the Public Attorney's Office on November 4, 1992, at the
office of police officer Dante Dimagmaliw, when SPO4 Coronel
introduced Atty. Sanchez to accused-appellant Garcia and told him that
Atty. Sanchez would be his lawyer. However, accused-appellant Garcia
did not agree to have Atty. Sanchez to be his lawyer. Atty. Sanchez left
after talking to SPO4 Coronel, and accused-appellant Garcia had not
met Atty. Sanchez anymore since then. He was not present when Atty.
Sanchez allegedly signed . . . the alleged three (3) sworn statements.

"During the hearing of the case on April 6, 2000, Atty. Sanchez

manifested in open court that he did not assist accused-appellant Garcia
when the police investigated accused-appellant Garcia, and that he
signed . . . the three (3) sworn statements only as a witness thereto.
 "Accused-appellant Garcia signed the alleged three sworn
statements due to SPO4 Coronel's warning that if he would not do so, he
would again be tortured by water cure.
"SPO[4] Coronel caused the arrest without any warrant of
accused appellants De Leon, Loyola, [Flores] on the basis of the
complaint of Mr. Pedro Labita, and which arrest was effected on
November 5, 1992, by SPO1 Alfredo Silva and SPO1 Redelico.
"SPO4 Coronel, in his letter dated November 6, 1992, forwarded
the case to the Duty Inquest Prosecutor assigned at the WPDC
Headquarters." 9 (Citations omitted)
Ruling of the Trial Court
The trial court found that all the accused used to work for the BSP. Garcia
was a driver assigned to the Security and Transport Department; while Peralta,
Datuin Jr., De Leon, Flores and Loyola were laborers assigned to the Currency
Retirement Division. Their main task was to haul perforated currency notes from
the currency retirement vault to the basement of the BSP building for shredding.
On several occasions, during the period 1990-1992, they handed to Garcia
perforated currency notes placed in a coin sack that he, in turn, loaded in an
armored escort van and delivered to someone waiting outside the premises of
the building. The trial court held that the coordinated acts of all the accused
unerringly led to the conclusion that they had conspired to pilfer the perforated
currency notes belonging to the BSP.
The RTC rejected the disclaimer by Garcia of his own confessions, as
such disclaimer was "an eleventh hour concoction to exculpate himself and his
co-accused." The trial court found his allegations of torture and coerced
confessions unsupported by evidence. Moreover, it held that the recovery of
three pieces of perforated P100 bills from Garcia's wallet and the flight
of Peralta and Datuin Jr. were indicative of the guilt of the accused.
Hence, this appeal. 10
Issues
In his Brief, Garcia raises the following issues:
"1
The trial court erred in admitting in evidence the alleged three
Sworn Statements of Accused-appellant Garcia and the alleged three
pieces of P100 perforated notes
"2
The trial court erred in finding the accused-appellant guilty of
qualified theft." 11
 In their joint Brief, De Leon, Loyola and Flores interpose this additional
assignment of errors:
"1
The trial court erred in admitting in evidence the alleged three
sworn statements of Accused Ulysses Garcia (Exhibits 'I', 'J' and 'K') and
the alleged three pieces of P100 perforated notes (Exhibits 'N' to 'N-2')
over the objections of the accused-appellants.
"2
The trial court erred in denying the demurrer to evidence of
Accused-appellants De Leon, Loyola and Flores;
"3
The trial court erred in denying the Motion for Reconsideration of
the Order denying the demurrer to evidence;
"4
The trial court erred when it failed to consider the evidence
adduced by the accused-appellants, consisting of exhibits '1', '2' to '2-B',
'3' and '4' and the testimony of their witness, State Auditor Esmeralda
Elli;
"5
The trial court erred in finding the accused-appellants guilty of
qualified theft." 12
Simplified, the issues are as follows: (1) the sufficiency of the evidence
against appellants, including the admissibility of Garcia's confessions and of the
three perforated P100 currency notes; and (2) the propriety of the denial of their
demurrer to evidence.
The Court's Ruling
The appeal has merit.
First Issue:
Sufficiency of Evidence
The trial court convicted appellants mainly on the strength of the three
confessions given by Garcia and the three perforated P100 currency notes
confiscated from him upon his arrest. Appellants, however, contend that these
pieces of evidence are inadmissible.
Extrajudicial Confessions
 Appellants aver that the alleged three Sworn Statements of Garcia were
obtained without the assistance of counsel — in violation of his rights under
Article III, Section 12 (1) and (2) of the 1987 Constitution, which provides thus:
"SECTION 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed of his right
to remain silent and to have competent and independent counsel,
preferably of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
"(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incomunicado, or other similar forms of
detention are prohibited."
On the other hand, the OSG contends that counsel, Atty. Francisco
Sanchez III of the Public Attorney's Office, duly assisted Garcia during the
custodial investigation.
It is clear from a plain reading of the three extrajudicial confessions 13 that
Garcia was not assisted by Atty. Sanchez. The signature of the latter on those
documents was affixed after the word "SAKSI." Moreover, he appeared in court
and categorically testified that he had not assisted Garcia when the latter was
investigated by the police, and that the former had signed the Sworn Statement
only as a witness. 14
The written confessions, however, were still admitted in evidence by the
RTC on the ground that Garcia had expressed in writing his willingness and
readiness to give the Sworn Statements without the assistance of counsel. The
lower court's action is manifest error.
The right to counsel has been written into our Constitution in order to
prevent the use of duress and other undue influence in extracting confessions
from a suspect in a crime. The basic law specifically requires that any waiver of
this right must be made in writing and executed in the presence of a counsel. In
such case, counsel must not only ascertain that the confession is voluntarily
made and that the accused understands its nature and consequences, but also
advise and assist the accused continuously from the time the first question is
asked by the investigating officer until the signing of the confession.
Hence, the lawyer's role cannot be reduced to being that of a mere witness
to the signing of a pre-prepared confession, even if it indicated compliance with
the constitutional rights of the accused. 15 The accused is entitled to effective,
vigilant and independent counsel. 16
A waiver in writing, like that which the trial court relied upon in the present
case, is not enough. Without the assistance of a counsel, the waiver
has no evidentiary relevance. 17 The Constitution states that "[a]ny confession or
admission obtained in violation of [the aforecited Section 12] shall be
inadmissible in evidence. . . ." Hence, the trial court was in error when it admitted
in evidence the uncounseled confessions of Garcia and convicted appellants on
the basis thereof. The question of whether he was tortured becomes moot. CADSHI

Perforated Currency Notes

Appellants contend that the three P100 perforated currency notes (Exhibits
"N" to "N-2") allegedly confiscated from Garcia after his arrest were "fruits of the
poisonous tree" and, hence, inadmissible in evidence.
The solicitor general evades the issue and argues, instead, that appellants
waived the illegality of their arrest when they entered a plea. He further contends
that the exclusion from the evidence of the three punctured currency bills would
not alter the findings of the trial court.
The police arrested Garcia without a warrant, while he had merely been
waiting for a passenger bus after being pointed out by the Cash Department
personnel of the BSP. At the time of his arrest, he had not committed, was not
committing, and was not about to commit any crime. Neither was he acting in a
manner that would engender a reasonable ground to suspect that he was
committing a crime. None of the circumstances justifying an arrest without a
warrant under Section 5 of Rule 113 of the Rules of Court was present.
Hence, Garcia was not lawfully arrested. Nonetheless, not having raised
the matter before entering his plea, he is deemed to have waived the illegality of
his arrest. Note, however, that this waiver is limited to the arrest. It does not
extend to the search made as an incident thereto or to the subsequent seizure of
evidence allegedly found during the search.
The Constitution proscribes unreasonable searches and seizures 18 of
whatever nature. Without a judicial warrant, these are allowed only under the
following exceptional circumstances: (1) a search incident to a lawful arrest, (2)
seizure of evidence in plain view, (3) search of a moving motor vehicle, (4)
customs search, (5) stop and frisk situations, and (6) consented search. 19
Where the arrest was incipiently illegal, it follows that the subsequent
search was similarly illegal. 20 Any evidence obtained in violation of the
constitutional provision is legally inadmissible in evidence under the exclusionary
rule. 21 In the present case, the perforated P100 currency notes were obtained as
a result of a search made without a warrant subsequent to an unlawful arrest;
hence, they are inadmissible in evidence.
Moreover, untenable is the solicitor general's argument that Appellants De
Leon, Flores and Loyola waived the illegality of the arrest and seizure when,
without raising objections thereto, they entered a plea of guilty. It was Garcia who
was unlawfully arrested and searched, not the aforementioned three appellants.
The legality of an arrest can be contested only by the party whose rights have
been impaired thereby. Objection to an unlawful search and seizure is purely
personal, and third parties cannot avail themselves of it. 22

Indeed, the prosecution sufficiently proved the theft of the perforated

currency notes for retirement. It failed, however, to present sufficient admissible
evidence pointing to appellants as the authors of the crime.
The evidence presented by the prosecution shows that there were
other people who had similar access to the shredding machine area and the
currency retirement vault. 23 Appellants were pinpointed by Labita because of an
anonymous phone call informing his superior of the people allegedly behind the
theft; and of the unexplained increase in their spending, which was incompatible
with their income. Labita, however, did not submit sufficient evidence to support
his allegation.
Without the extrajudicial confession and the perforated currency notes, the
remaining evidence would be utterly inadequate to overturn the constitutional
presumption of innocence.
Second Issue:
Demurrer to Evidence
Appellants contend that the trial court seriously erred when it denied the
demurrer to evidence filed by Appellants Loyola, De Leon and Flores. Not one of
the documents offered by the prosecution and admitted in evidence by the RTC
established the alleged qualified theft of perforated notes, and not one of the
pieces of evidence showed appellants' participation in the commission of the
crime.
On the exercise of sound judicial discretion rests the trial judge's
determination of the sufficiency or the insufficiency of the evidence presented by
the prosecution to establish a prima facie case against the accused. Unless there
is a grave abuse of discretion amounting to lack of jurisdiction, the trial court's
denial of a motion to dismiss may not be disturbed. 24
As discussed earlier, the inadmissibility of the confessions of Garcia did
not become apparent until after Atty. Francisco had testified in court. Even if the
confiscated perforated notes from the person of the former were held to be
inadmissible, the confessions would still have constituted prima facie evidence of
the guilt of appellants. On that basis, the trial court did not abuse its discretion in
denying their demurrer to evidence.
 WHEREFORE, the assailed Decision is REVERSED and SET ASIDE.
Appellants are hereby ACQUITTED and ordered immediately RELEASED,
unless they are being detained for any other lawful cause. The director of the
Bureau of Corrections is hereby directed to submit his report on the release of
the appellant or the reason for his continued detention within five (5) days from
notice of this Decision. No costs.
SO ORDERED.
(People v. Garcia y Tupas, G.R. No. 145176, [March 30, 2004], 470 PHIL 305-
|||

321)

Valmonte vs. De Villa [G.R. No. 83988, September 29, 1989]

[G.R. No. 83988. May 24, 1990.]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND

ADVOCATES FOR PEOPLES'S RIGHTS
(ULAP), petitioners, vs. GEN. RENATO DE VILLA AND
NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

Ricardo C. Valmonte for and in his own behalf and co-petitioners.

DECISION

PADILLA, J : p

In the Court's decision dated 29 September 1989, petitioners' petition

for prohibition seeking the declaration of the checkpoints as unconstitutional
and their dismantling and/or banning, was dismissed. cdphil

Petitioners have filed the instant motion and supplemental motion for
reconsideration of said decision. Before submission of the incident for
resolution, the Solicitor General, for the respondents, filed his comment, to
which petitioners filed a reply.
It should be stated, at the outset, that nowhere in the questioned
decision did this Court legalize all checkpoints, i.e. at all times and
under all circumstances. What the Court declared is, that checkpoints are not
illegal per se. Thus, under exceptional circumstances, as where the survival
of organized government is on the balance, or where the lives and safety of
the people are in grave peril, checkpoints may be allowed and installed by the
government. Implicit in this proposition is, that when the situation clears and
such grave perils are removed, checkpoints will have absolutely no reason to
remain.
Recent and on-going events have pointed to the continuing validity and
need for checkpoints manned by either military or police forces. The sixth
(6th) attempted coup d'etat (stronger than all previous ones) was staged only
last 1 December 1989. Another attempt at a coup d'etat is taken almost for
granted. The NPA, through its sparrow units, has not relented but instead
accelerated its liquidation of armed forces and police personnel. Murders, sex
crimes, hold-ups and drug abuse have become daily occurrences.
Unlicensed firearms and ammunition have become favorite objects of trade.
Smuggling is at an all-time high. Whether or not effective as expected,
checkpoints have been regarded by the authorities as a security measure
designed to entrap criminals and insurgents and to constitute a dragnet for all
types of articles in illegal trade.
No one can be compelled, under our libertarian system, to share with
the present government its ideological beliefs and practices, or commend its
political, social and economic policies or performance. But, at least, one must
concede to it the basic right to defend itself from its enemies and, while in
power, to pursue its program of government intended for public welfare; and
in the pursuit of those objectives, the government has the equal right, under
its police power, to select the reasonable means and methods for best
achieving them. The checkpoint is evidently one of such means it has
selected.cdphil

Admittedly, the routine checkpoint stop does intrude, to a certain

extent, on motorist's right to "free passage without interruption", but it cannot
be denied that, as a rule, it involves only a brief detention of travellers during
which the vehicle's occupants are required to answer a brief question or
two. 1 For as long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be regarded as violative of an
individual's right against unreasonable search.
These routine checks, when conducted in a fixed area, are even less
intrusive. As held by the U.S. Supreme Court:
"Routine checkpoint stops do not intrude similarly on the
motoring public. First, the potential interference with legitimate
traffic is minimal. Motorists using these highways are not taken by
surprise as they know, or may obtain knowledge of, the location of
the checkpoints and will not be stopped elsewhere. Second
checkpoint operations both appear to and actually involve less
discretionary enforcement activity. The regularized manner in which
 established checkpoints are operated is visible evidence,
reassuring to law-abiding motorists, that the stops are duly
authorized and believed to serve the public interest. The location of
a fixed checkpoint is not chosen by officers in the field, but by
officials responsible for making overall decisions as to the most
effective allocation of limited enforcement resources. We may
assume that such officials will be unlikely to locate a checkpoint
where it bears arbitrarily or oppressively on motorists as a class,
and since field officers may stop only those cars passing the
checkpoint, there is less room for abusive or harassing stops of
individuals them there was in the case of roving-patrol stops.
Moreover, a claim that a particular exercise of discretion in locating
or operating a checkpoint is unreasonable is subject to post-stop
judicial review." 2
The checkpoints are nonetheless attacked by the movants as
a warrantless search and seizure and, therefore, violative of the
Constitution. 3
As already stated, vehicles are generally allowed to pass these
checkpoints after a routine inspection and a few questions. If vehicles are
stopped and extensively searched, it is because of some probable cause
which justifies a reasonable belief of the men at the checkpoints that either
the motorist is a law-offender or the contents of the vehicle are or have been
instruments of some offense. Again, as held by the U.S. Supreme Court —
"Automobiles, because of their mobility, may be searched
without a warrant upon facts not justifying a warrantless search of a
residence or office. Brinegar v. United States, 338 US 160, 93 L Ed
1879, 69 S Ct 1302(1949); Carroll v. United States, 267 US 132, 69
L Ed 543, 45 S Ct 280, 39 ALR 790 (1925). The cases so holding
have, however, always insisted that the officers conducting the
search have 'reasonable or probable cause' to believe that they will
find the instrumentality of a crime or evidence pertaining to a crime
before they begin their warrantless search. . . ." 4
Besides these warrantless searches and seizures at the checkpoints
are quite similar to searches and seizures accompanying warrantless arrests
during the commission of a crime, or immediately thereafter. In People vs.
Kagui Malasuqui, it was held —
"To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy
of the shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances." 5
By the same token, a warrantless search of incoming and outgoing
passengers, at the arrival and departure areas of an international airport, is a
 practice not constitutionally objectionable because it is founded on public
interest, safety, and necessity.
Lastly, the Court's decision on checkpoints does not, in any way,
validate nor condone abuses committed by the military manning the
checkpoints. The Court's decision was concerned with power, i.e. whether the
government employing the military has the power to install said checkpoints.
Once that power is acknowledged, the Court's inquiry ceases. True, power
implies the possibility of its abuse. But whether there is abuse in a particular
situation is a different "ball game" to be resolved in the constitutional arena.
The Court, like all other concerned members of the community, has
become aware of how some checkpoints have been used as points of
thievery and extortion practiced upon innocent civilians. Even the increased
prices of foodstuffs coming from the provinces, entering the Metro Manila
area and other urban centers, are largely blamed on the checkpoints,
because the men manning them have reportedly become "experts" in
mulcting travelling traders. This, of course, is a national tragedy.
llcd

But the Court could not a priori regard in its now assailed decision that
the men in uniform are rascals or thieves. The Court had to assume that the
men in uniform live and act by the code of honor and they are assigned to the
checkpoints to protect, and not to abuse, the citizenry. 6 The checkpoint is a
military "concoction." It behooves the military to improve the QUALITY of their
men assigned to these checkpoints. For no system or institution will succeed
unless the men behind it are honest, noble and dedicated.
In any situation, where abuse marks the operation of a checkpoint, the
citizen is not helpless. For the military is not above but subject to the law. And
the courts exist to see that the law is supreme. Soldiers, including those who
man checkpoints, who abuse their authority act beyond the scope of their
authority and are, therefore, liable criminally and civilly for their abusive
acts. 7 This tenet should be ingrained in the soldiery in the clearest of terms
by higher military authorities.
ACCORDINGLY, the Motion and Supplemental Motion for
Reconsideration are DENIED. This denial is FINAL.
SO ORDERED.
||| (Valmonte v. De Villa, G.R. No. 83988, [May 24, 1990], 264 PHIL 265-276)

People vs. O’Cochlain [G.R. No. 229071, December 10, 2018]

[G.R. No. 229071. December 10, 2018.]

 PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. EANNA O'COCHLAIN, accused-appellant.

DECISION

PERALTA, J : p

On appeal is the February 9, 2016 Decision 1 and July 21, 2016

Resolution 2 of the Court of Appeals (CA) in CA-G.R. CR No. 36412, which
affirmed the November 22, 2013 Decision 3 of the Regional Trial Court (RTC),
Branch 13, Laoag City, in Criminal Case No. 15585-13, finding accused-
appellant Eanna O'Cochlain (Eanna) guilty of violating Section 11, Article II of
Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of
2002.
At the time of his arrest, Eanna was a 53-year old Irish national married
to a Filipina and residing in Barangay Aring, Badoc, Ilocos Norte. In an
Information 4 dated July 15, 2013, he was charged with illegal possession of
marijuana, committed as follows:
That on or about [the] 14th day of July 2013 in the City of Laoag
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously had in
his possession, custody and control: two (2) sticks of dried Marijuana
Leaves, a dangerous drug, with an aggregate weight of 0.3824 grams,
without any license or authority to possess, in violation of the aforesaid
law. 5
With the assistance of a counsel de parte and in the presence of a
public prosecutor, Eanna pleaded "NOT GUILTY" in his arraignment. 6 He
was allowed to post bail for his temporary liberty, but a hold departure order
was issued to prevent him from leaving the Philippines and his passport was
surrendered to the court for its custody in the course of the proceedings. 7

Version of the Prosecution

Aside from the sworn statements of other intended witnesses, 8 the

testimonies in open court of Security Screening Officer Dexter Suguitan (SSO
Suguitan), Police Officer 3 Joel Javier (PO3 Javier), and PO1 Erald
Terson (PO1 Terson) reveal as follows:
While on his break time around 7:00 p.m. on July 14, 2013, SSO
Suguitan of the Department of Transportation-Office of Transportation
Security (OTS), assigned at the initial security screening checkpoint of the
Laoag City International Airport, was told by CAAP 9 Security and Intelligence
Flor Tamayo (CSI Tamayo) that the parking space in front of the departure
area smelled like marijuana ("agat sa marijuana"). He suspected that Eanna
was the one who smoked the illegal drug, recounting that at around 6:35 p.m.
he saw a certain male Caucasian at the parking area lighting something
unrecognizable as he was covering it with his palm. CSI Tamayo observed
that whenever he would suck what he seemed to be smoking, no visible vapor
would come out from his mouth.
However, SSO Suguitan dismissed CSI Tamayo's story as he thought
that it would be impossible for a passenger to smoke marijuana at the airport.
After a while, he returned to his post at the initial check-in area. Meanwhile,
CSI Tamayo reported what he saw to PO2 Pancho Caole, Jr. (PO2 Caole,
Jr.) and SSO Fidel Bal-ot (SSO Bal-ot), who were manning the final screening
area. CAIHTE

Later on, SSO Bal-ot directed SSO Suguitan to proceed to the final
security checkpoint. 10 The latter was instructed to conduct a pat down search on Eanna, who
agreed. He was frisked while he raised his hands by stretching sideward to the level of his shoulders
with palms open. When something was felt inside the pocket of his upper garment, he was asked to take
it out. He then brought out a pack of Marlboro red from his left pocket, as well as a matchbox and
another pack of Marlboro red from his right pocket. The pack of Marlboro red on his left hand contained
cigarettes but the one on his right hand contained two (2) rolled sticks of what appeared to be dried
marijuana leaves. SSO Suguitan knew it was marijuana because that was what CSI Tamayo earlier told
him. He took the pack of Marlboro red containing the two rolled sticks of dried marijuana leaves and
showed it to PO1 Peter Warner Manadao, Jr. (PO1
Manadao, Jr.) and other police
personnel on duty. SSO Suguitan put them on the nearby screening table in
front of Eanna and PO1 Manadao, Jr. The two rolled sticks of dried marijuana
leaves were the only items placed thereon.
PO1 Udel Tubon 11 then called the attention of PO3 Javier, who was the
investigator on duty of the Philippine National Police (PNP)-Aviation Security
Group (ASG). PO1 Manadao, Jr., PO2 Caole, Jr., SSO Suguitan, and SSO
Bal-ot were at the final checkpoint when he arrived. They told him that
marijuana was found in Eanna's pocket. SSO Suguitan turned over to PO3
Javier the pack of Marlboro red containing the two rolled sticks of dried
marijuana leaves. PO3 Javier then placed them on a tray, together with
Eanna's other belongings. As the area started to become crowded, the seized
items were brought by PO3 Javier to the PNP-ASG office. He was
accompanied by SSO Suguitan and Eanna.
Together with PO3 Javier at the PNP-ASG office were Police
Superintendent Diosdado Apias (P/Supt. Apias), PO1 Manadao, Jr., PO2
Caole, Jr., SSO Suguitan, SSO Bal-ot, and a certain SPO3 Domingo. While
waiting for the arrival of the barangay officials, which took 15-20 minutes, the
two rolled sticks of dried marijuana leaves were placed on the investigation
table where everybody could look but not touch. Eanna was seated in front of
the table, while the others guarded him. PO3 Javier then prepared the
inventory. The two rolled sticks of dried marijuana leaves and other seized
items were listed. The check-in baggage of Eanna was also inspected, but it
only contained clothes and other personal belongings. The
confiscation/inventory receipts were signed by PO3 Javier and SSO Suguitan,
as well as two (2) officials of Barangay Araniw, Laoag City (Barangay
Chairman Edilberto Bumanglag and Barangay Kagawad Benjamin Teodoro)
and an ABS-CBN cameraman (Juanito Badua), who acted as witnesses. In
their presence, as well as of Eanna, PO3 Javier marked the two rolled sticks
of dried marijuana leaves as "EO-1" and "EO-2" and, thereafter, placed them
inside a Ziploc re-sealable plastic bag. The guard of the PNP-ASG office, PO1
Terson, took pictures during the inventory and marking, while P/Supt. Apias
prepared the requests for the medico-legal examination of Eanna and the
laboratory examination of the two rolled sticks of dried marijuana leaves. The
marking, physical inventory, and photographing were likewise witnessed by
PO1 Manadao, Jr. and PO2 Caole, Jr., who executed a Joint Affidavit of
Arrest with PO3 Javier.
Subsequently, Eanna was brought to the Governor Roque R. Ablan, Sr.
Memorial Hospital for his medico-legal examination. PO3 Javier proceeded to
the Ilocos Norte Provincial Crime Laboratory Office to submit the request for
laboratory examination and the two rolled sticks of dried marijuana leaves.
The request and the specimens were received by PO3 Padayao, the evidence
custodian. Based on the qualitative examination conducted by Forensic
Chemist Police Inspector Amiely Ann Luis Navarro (P/Insp. Navarro), which
was reduced into writing, the specimens were found to be positive for the
presence of marijuana.

Version of the Defense

At around 6:30 p.m. on July 14, 2013, Eanna was with his wife at the
Laoag City International Airport for their Cebu Pacific flight bound for Manila.
Since the x-ray machine operator at the initial security screening was not yet
around, he left his wife in the line and smoked his pre-rolled tobacco and
Marlboro cigarette outside, about 30 meters away. Ten minutes passed, he
went back to the initial security checkpoint carrying his check-in and cabin
luggage, camera bag, and some shopping bags. The airport police conducted
a body search and examined his belongings. Afterwards, he proceeded to the
final security check where he was inspected by a male "immigration officer"
wearing a brown shirt. As a result, a red Marlboro cigarette pack, containing
two pieces of rolled paper of flavored tobacco, was found in his
possession. 12 It was shown to him while he was in front of his wife. The
cigarette pack was then put on the desk, on top of one of his luggage. A
camera bag (containing a Sony camera, connecting cables, headphones, an
MP3 player, cigarette paper, and a pack of Marlboro) was also searched. The
officer got some tiny grains after sticking his fingers into the bag. He showed
them to Eanna and asked what they were. The latter replied that they were
flavored tobacco, which he has been smoking for the past 30 years. Despite
the claim, the officer directed an airport police to bring Eanna to the police
station that was about 150 meters away.
Together with his wife, Eanna was escorted by about five to six airport
police. At the PNP-ASG office, his camera bag and other luggage arrived
approximately 20 minutes later. They were placed on top of the table and
stayed there for 30-45 minutes before the police started to search the
contents and catalog the items. Prior to the inventory of the seized items,
Eanna and his wife repacked their luggage as the latter still proceeded with
her scheduled flight. Thereafter, with the permission of PO3 Javier, Eanna
went outside the office to smoke as he waited for his Batac-based Filipino
relatives who arrived approximately after two hours. While smoking outside,
he could not see what was happening, if any, to his luggage and camera bag.
The camera crew of ABS-CBN arrived at almost 11:00 p.m. An asset
from the Philippine Drug Enforcement Agency (PDEA) called Badua and told
him to come to the PNP-ASG office. He went with an off-duty security guard
of ABS-CBN Laoag City. There, he was allowed to cover the incident, which
became the basis of a television news report. DETACa

The sticks of the alleged marijuana were shown to Eanna thrice — once
at the airport and twice at the police station. On the second instance, he was
shown two thin rolled sticks that were placed on top of the table in front of
him. On the third time, however, he saw a thin and a fat rolled sticks made of
paper that were different from what he was using.

RTC Ruling

After trial, Eanna was convicted of the crime charged. The fallo of the
November 22, 2013 Decision states:
WHEREFORE, accused Eanna O'Cochlain is hereby
pronounced GUILTY beyond reasonable doubt of the charge of illegal
possession of marijuana weighing 0.3824 gram and is therefore
sentenced to suffer the indeterminate penalty of imprisonment of
TWELVE (12) YEARS and ONE (1) DAY to FOURTEEN (14) YEARS
and to pay a fine of THREE HUNDRED THOUSAND PESOS
(P300,000.00).
 The two sticks of marijuana subject hereof are confiscated, the
same to be disposed in the manner that the law prescribes.
SO ORDERED. 13
The search conducted on Eanna and his subsequent arrest were
upheld. According to the RTC, the search upon his person was not
unreasonable but was actually an exception to the proscription against
warrantless searches and seizures. It was justified as it proceeded from a
duty or right that was enforced in accordance with the aviation rules and
regulations to maintain peace, order and security at the airports. In fact,
Eanna's plane ticket carried a proviso allowing airport authorities to check on
his person and baggage pursuant to the requirement of Section 9 of R.A. No.
6235. 14 Moreover, another exception to the rule is consented warrantless
search and seizure. In this case, Eanna agreed to the body pat down search
that was requested by SSO Suguitan.
For the RTC, SSO Suguitan was a credible witness. It was observed
that he was spontaneous in his testimony and that he appeared candid and
truthful in his statements. There was nothing in his testimony or in the manner
he testified that could arouse serious suspicion of lying. Some of his
inconsistent statements, which the defense considered as irreconcilable, were
insignificant and trivial as they do not impinge on any of the elements of the
offense charged. Instead, the statements bolster SSO Suguitan's credibility as
they were indicia of his unrehearsed testimony.
The RTC opined that Eanna's denial was not based on clear and
convincing evidence; rather, it was bare and self-serving. His testimony was
even fraught with incoherence and serious inconsistencies which he obviously
committed as he desperately tried to show that what was taken from his
possession was mere tobacco. Considering his flip-flopping testimony, his
denial was not given credence and did not prevail over the credible testimony
of SSO Suguitan and the unquestioned findings of the forensic chemist.
Finally, as to the chain of custody of the illegal drug seized, the RTC
was satisfied that the prosecution was able to preserve the integrity and
evidentiary value of the subject marijuana. It ruled:
In this case, the Court does not doubt a bit that the two sticks of
marijuana presented in evidence are the same sticks of marijuana
confiscated from the accused. There was not only compliance by the
airport authorities of the requirements of Section 21 of the law and its
implementing rules and regulations, there is a complete account of the
complete chain of custody of the two sticks of marijuana that negates
any doubt that their integrity and evidentiary value have been
preserved. As it has been established by the prosecution, upon being
informed of the arrest of the accused, after SSO Suguitan had
confiscated the two [sticks] of marijuana from the accused, PO3 Joel
Javier, the duty police investigator at the airport at [the] time who was
at the ramp outside the departure terminal was called and when he
arrived at the place where the accused was accosted and was
informed of the arrest of the accused, he took custody of the two sticks
of marijuana which were then on the screening desk or table and
invited the accused to the office of the PNP-CAAP Aviation Security
Group located within the premises of the airport not far from the
departure terminal. There, PO3 Javier marked the two sticks of
marijuana with EO-1 and EO-2. Upon the arrival of two Barangay
officials, Barangay Chairman Edilberto Bumanglag and Kagawad
Benjamin Teodoro of Barangay Araniw, Laoag City which has territorial
jurisdiction over the airport, and a member of the media in the person
of Juanito Badua, a cameraman of ABS-CBN, Laoag, PO3 Javier also
conducted the required inventory not only of the two sticks of
marijuana but the other belongings of the accused contained in his
luggage. In the course of the inventory, PO1 Erald Terson, also a
member of the PNP-Aviation Security Group, took pictures of the
seized items as he was directed to do by their superior. Sometime
later, as the accused was brought for medical examination, PO3 Javier
was the one who brought the two sticks of marijuana together with the
prepared letter request to the Ilocos Norte Provincial Crime Laboratory
Office for examination. And to complete the chain, the prosecution
established that at the said crime lab, the two sticks were received by
PO3 Padayao who thereupon turned them over to the forensic
chemist, Police Inspector Amiely Ann Navarro. As the Court takes
judicial notice from the record of the case, the two sticks were finally
submitted to court on July 19, 2013, received by the Branch Clerk of
Court, Atty. Bernadette Espejo[,] who issued the corresponding
Acknowledgment Receipt therefor.
Significantly relative to the chain of custody and as would have
equally done by the other concerned witnesses such as forensic
chemist Police Inspector Navarro who issued her written chemistry
reports of the qualitative examinations she conducted on the
specimens, and PO3 Padayao, both of the crime lab, SSO Suguitan[,]
who discovered the two sticks of marijuana[,] identified the same in
open court, pointing in the process the respective markings EO-1 and
EO-2 that he witnessed to have been placed by the investigating police
officer, PO3 Javier[,] which, after the inventory, the latter placed in a
plastic bag (Ziploc). PO3 Javier himself also identified the two sticks of
marijuana.
At this point, the Court is not oblivious of the fact that in his
testimony SSO Suguitan initially claimed that he turned over the two
sticks of marijuana to PO1 Manadao, Jr. But actually[,] as it can be
clearly appreciated from the testimony of SSO Suguitan, the turn over
that he said was merely the placing of the two sticks of marijuana on
 top of the table at the final screening area, in front of PO1 Manadao
and the accused. In fact, as SSO Suguitan corroborated PO3 Javier,
the two sticks of marijuana which were still on the screening desk were
thereafter placed on a tray and PO3 Javier was the one who then
actually took custody thereof as the accused was invited to the office of
the PNP-CAAP Aviation Security Group. PO3 Javier himself, when he
was asked by the defense if it was PO1 Manadao who turned over the
specimens to him, categorically said, "No, sir, Mr. Dexter Suguitan."
Also, the Court cannot be amiss to point out that the two sticks
of marijuana could not have been switched with another or
contaminated while it was in the custody of PO3 Javier. While
admitting that there were many things that they prepared while they
were already in their office, he testified in effect that no such [thing]
happened. The people there at the office were not examining the
specimens, they were just looking and not holding it.
The Court at this point cannot but express its observation that
PO3 Javier, just like SSO Suguitan, was equally credible. He was
straightforward, consistent and candid in his testimony that it cannot in
any way be considered suspect. 15 aDSIHc

Eanna moved to reconsider the RTC judgment, but it was denied;

hence, a notice of appeal was filed. 16

CA Ruling

Finding no cause to overturn the findings of fact and conclusions of law,

the CA affirmed the assailed RTC Decision.
The CA affirmatively answered the issue of whether there was probable
cause to justify the warrantless search of Eanna and the seizure of his
belongings. It appreciated the prosecution's version that CSI Tamayo saw him
smoking while outside the departure area of the airport terminal.
Although no smoke coming from his mouth was seen, CSI Tamayo still
smelled the scent of marijuana. Similar to the RTC ruling, the warrantless
search and seizure was also valid because the search was conducted
pursuant to a routine airport security procedure and Eanna voluntarily gave
his consent thereto.
It was likewise held that all the elements of the crime of illegal
possession of dangerous drug were satisfactorily established. First, Eanna
was caught in possession and custody of two sticks of marijuana on July 14,
2013 at the Laoag City International Airport during the routine search
conducted by the airport authorities. Second, he failed to prove that he was
authorized by law to possess the same. And third, he freely and consciously
possessed the illegal drug.
The CA downplayed the alleged varying testimonies of the prosecution
witnesses. As the RTC opined, the inconsistences raised by the defense were
minor and trivial and could not affect the RTC's finding as to the credibility of
the airport police officers.
Finally, anent the chain of custody rule, the CA regarded as specious
Eanna's claim that the procedures set forth in Section 21 of R.A. No. 9165
were not followed. The testimony of SSO Suguitan was quoted and the
ratiocination of the RTC was adopted to support the finding that the airport
officials complied with the rule.
Eanna filed a motion for reconsideration, but it was denied on July 21,
2016.
Now before us, the Office of the Solicitor General manifested that it
would no longer file a supplemental brief as it had exhaustively discussed the
legal issues and arguments in its appeal brief before the CA. 17 On his part,
Eanna filed a Supplemental Brief 18 to bolster his claim that there were gaps
in the chain of custody of the alleged illegal drug seized. He argues that:
1. PO3 Javier was not at the scene where Eanna was found in
possession of the alleged illegal drug; thus, he had no personal
knowledge of its possession by Eanna and its seizure by SSO
Suguitan.
2. It was not made clear by the prosecution that the two sticks of rolled
paper allegedly containing marijuana were marked immediately
upon confiscation.
3. The drug evidence was rendered susceptible to alteration, tampering
and swapping because the Ziploc where it was placed was not
sealed by an adhesive tape or any means other than the natural,
built-in re-sealable feature of the plastic bag.
4. The presence of the marking "JEP" on the two rolled sticks of alleged
marijuana could not be explained and the marking made thereon
compromised their integrity and physical appearance.
5. The presumption of regularity in the performance of official duty is
unavailing because the police authorities deviated from the
mandated procedure and offered no valid ground to show that
their actuations were justified.

Our Ruling
 The judgment of conviction is affirmed.
Airport screening search is a
constitutionally reasonable
administrative search.

The search and seizure of an illegal drug during a routine airport

inspection made pursuant to the aviation security procedures has been
sustained by this Court in a number of cases. 19 In the leading case
of People v. Johnson, 20 we held:
Persons may lose the protection of the search and seizure
clause by exposure of their persons or property to the public in a
manner reflecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures. With increased
concern over airplane hijacking and terrorism has come increased
security at the nation's airports. Passengers attempting to board an
aircraft routinely pass through metal detectors; their carry-on baggage
as well as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious objects,
physical searches are conducted to determine what the objects are.
There is little question that such searches are reasonable, given their
minimal intrusiveness, the gravity of the safety interests involved, and
the reduced privacy expectations associated with airline travel. Indeed,
travelers are often notified through airport public address systems,
signs, and notices in their airline tickets that they are subject to search
and, if any prohibited materials or substances are found, such would
be subject to seizure. These announcements place passengers on
notice that ordinary constitutional protections against warrantless
searches and seizures do not apply to routine airport procedures. 21 ETHIDa

Thus, while the right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and seizures is
guaranteed by Section 2, Article III of the 1987 Constitution, 22 a routine
security check being conducted in air 23 and sea 24 ports has been a
recognized exception. This is in addition to a string of jurisprudence ruling that
search and seizure may be made without a warrant and the evidence
obtained therefrom may be admissible in the following instances: (1) search
incidental to a lawful arrest; (2) search of a moving motor vehicle; (3) customs
search; (4) seizure of evidence in "plain view"; (5) consented warrantless
search; (6) "stop and frisk" search; and (7) exigent and emergency
circumstance. 25
Notably, Section 2, Article III of the Constitution was patterned after the
Fourth Amendment to the Constitution of the United States of
America. 26 Having been derived almost verbatim therefrom, the Court may
turn to the pronouncements of the US Federal Supreme Court and State
Appellate Courts, which are considered doctrinal in this jurisdiction. 27
Like in our country, the circumstances under which a warrantless
search, unsupported by probable cause, may be considered reasonable
under the Fourth Amendment are very limited and that exceptions thereto are
few specifically established and well delineated. 28 In a similar way, the
government bears the burden of proving that a warrantless search was
conducted pursuant to an established exception to the Fourth Amendment
warrant requirement. 29
US courts have permitted exceptions to the Fourth Amendment when
"special needs, beyond the normal need for law enforcement, make the
warrant and probable cause requirement impracticable" such as work-related
searches of government employees' desks and offices, warrantless searches
conducted by school officials of a student's property, government investigators
conducting searches pursuant to a regulatory scheme when the searches
meet "reasonable legislative or administrative standards," and a State's
operation of a probation system. 30 The Fourth Amendment permits the
warrantless search of "closely regulated" businesses; "special needs" cases
such as schools, employment, and probation; and "checkpoint" searches such
as airport screenings under the administrative search doctrine. 31
Searches and seizures are ordinarily unreasonable in the absence of
individualized suspicion of wrongdoing. 32 However, because administrative
searches primarily ensure public safety instead of detecting criminal
wrongdoing, they do not require individual suspicion. 33 Where the risk to
public safety is substantial and real, blanket suspicionless searches calibrated
to the risk may rank as "reasonable." 34 In particular, airport searches have
received judicial sanction essentially because of the magnitude and
pervasiveness of the danger to the public safety and the overriding concern
has been the threat of death or serious bodily injury to members of the public
posed by the introduction of inherently lethal weapons or bombs. 35
Although the US Supreme Court has not specifically held that airport
screening searches are constitutionally reasonable administrative searches, it
has suggested that they qualify as such. 36 Airport security searches can be
deemed lawful administrative searches because (1) these searches constitute
relatively limited intrusions geared toward finding particular items (weapons,
explosives, and incendiary devices) that pose grave danger to airplanes and
air travelers; (2) the scrutiny of carry-on luggage is no more intrusive (in both
its scope and intensity) than is necessary to achieve the legitimate aims of the
screening process (that is, to ensure air travel safety); (3) airline passengers
have advance notice that their carry-on luggage will be subjected to these
security measures, thus giving passengers the opportunity to place their
personal effects in checked luggage; (4) all passengers are subject to the
same screening procedures; and (5) passengers are aware that they can
avoid the screening process altogether by electing not to board the
plane. 37 Moreover, abuse is unlikely because of its public nature. 38
As a permissible administrative search, the scope of airport routine
check is not limitless. 39 Airport screening procedures are conducted for two
primary reasons: first, to prevent passengers from carrying weapons or
explosives onto the aircraft; and second, to deter passengers from even
attempting to do so. 40 The oft-cited case of United States v. Davis 41 sets the
appropriate standards for evaluating airport screening searches as
constitutionally reasonable administrative searches, thus:
[S]earches conducted as part of a general regulatory scheme in
furtherance of an administrative purpose, rather than as part of a
criminal investigation to secure evidence of crime, may be permissible
under the Fourth Amendment though not supported by a showing of
probable cause directed to a particular place or person to be searched.
As we have seen, screening searches of airline passengers are
conducted as part of a general regulatory scheme in furtherance of an
administrative purpose, namely, to prevent the carrying of weapons or
explosives aboard aircraft, and thereby to prevent hijackings. The
essential purpose of the scheme is not to detect weapons or
explosives or to apprehend those who carry them, but to deter persons
carrying such material from seeking to board at all.
Of course, routine airport screening searches will lead to
discovery of contraband and apprehension of law violators. This
practical consequence does not alter the essentially administrative
nature of the screening process, however, or render the searches
unconstitutional. x x x.
There is an obvious danger, nonetheless, that the screening of
passengers and their carry-on luggage for weapons and explosives will
be subverted into a general search for evidence of crime. If this occurs,
the courts will exclude the evidence obtained. 42 (Citations omitted.)
The constitutional bounds of an airport administrative search require
that the individual screener's actions be no more intrusive than necessary to
determine the existence or absence of explosives that could result in harm to
the passengers and aircraft. 43 The search cannot also serve unrelated law
enforcement purposes as it effectively transforms a limited check for weapons
and explosives into a general search for evidence of crime, substantially
eroding the privacy rights of passengers who travel through the system. 44 As
in other exceptions to the search warrant requirement, the screening program
must not turn into a vehicle for warrantless searches for evidence of
crime. 45 It is improper that the search be tainted by "general law enforcement
objectives" such as uncovering contraband unrelated to that purpose or
evidence of unrelated crimes or evidencing general criminal activity or a
desire to detect "evidence of ordinary criminal wrongdoing." 46 In United
States v. $124,570 U.S. Currency, 47 the US Court of Appeals for the Ninth
Circuit noted that the US Supreme Court has repeatedly emphasized the
importance of keeping criminal investigatory motives from coloring
administrative searches. 48 cSEDTC

Hence, an airport search remains a valid administrative search only so

long as the scope of the administrative search exception is not exceeded;
"once a search is conducted for a criminal investigatory purpose, it
can no longer be justified under an administrative search rationale." 49 Where
an action is taken that cannot serve the administrative purpose, either
because the threat necessitating the administrative search has been
dismissed or because the action is simply unrelated to the administrative goal,
the action clearly exceeds the scope of the permissible search. 50 To the
extent that airport administrative searches are used for purposes other than
screening luggage and passengers for weapons or explosives, they fall
outside the rationale by which they have been approved as an exception to
the warrant requirement, and the evidence obtained during such a search
should be excluded. 51
Furthermore, to be constitutionally permissible, warrantless and
suspicionless airport screening searches must meet the Fourth Amendment
standard of reasonableness. 52 "What is reasonable depends upon all of the
circumstances surrounding the search or seizure and the nature of the search
or seizure itself." 53 There can be no ready test for determining
reasonableness other than by balancing the need to search against the
invasion which the search entails. 54 In other words, an administrative
screening search must be as limited in its intrusiveness as is consistent with
satisfaction of the administrative need that justifies it. 55 Specifically, the Court
must balance an individual's right to be free of intrusion with "society's interest
in safe air travel." 56 On this score, Davis again has provided a guidepost.
There it was held that an airport security search is considered as reasonable
if: (1) the search is no more extensive or intensive than necessary, in light of
current technology, to satisfy the administrative need that justifies it, that is to
detect the presence of weapons or explosives; (2) the search is confined in
good faith to that purpose; and (3) a potential passenger may avoid the
search by choosing not to fly. 57
In State v. Hanson, 58 the Intermediate Court of Appeals of Hawai'i
believed in the soundness of the logic of the US Court of Appeals for the Fifth
Circuit in United States v. Skipwith, 59 which ruled:
Necessity alone, however, whether produced by danger or otherwise,
does not in itself make all non-probable-cause searches reasonable.
Reasonableness requires that the courts must weigh more than the
necessity of the search in terms of possible harm to the public. The
equation must also take into account the likelihood that the search
procedure will be effective in averting the potential harm. On the
opposite balance we must evaluate the degree and nature of intrusion
into the privacy of the person and effects of the citizen which the
search entails.
In undertaking our calculation of the weight to be accorded to
these three factors in the case at bar — public necessity, efficacy of
the search, and degree of intrusion — we need not reiterate what was
said in Moreno about the dangers posed by air piracy; suffice it to say
that there is a judicially-recognized necessity to insure that the
potential harms of air piracy are foiled. The search procedures have
every indicia of being the most efficacious that could be used. The
group being screened is limited to persons with the immediate intention
of boarding aircraft. Metal detectors, visual inspection, and rare but
potential physical searches appear to this court to provide as much
efficiency to the process as it could have.
On the other side of the judicial scales, the intrusion which the
airport search imposes on the public is not insubstantial. It is
inconvenient and annoying, in some cases it may be embarrassing,
and at times it can be incriminating. There are several factors,
however, which make this search less offensive to the searched
person than similar searches in other contexts. One such factor is the
almost complete absence of any stigma attached to being subjected to
search at a known, designated airport search point. As one
commentator has put it in the border search context, "individuals
searched because of their membership in a morally neutral class have
less cause to feel insulted. . . ." In addition, the offensiveness of the
screening process is somewhat mitigated by the fact that the person to
be searched must voluntarily come to and enter the search area. He
has every opportunity to avoid the procedure by not entering the
boarding area. Finally, the circumstances under which the airport
search is conducted make it much less likely that abuses will occur.
Unlike searches conducted on dark and lonely streets at night where
often the officer and the subject are the only witnesses, these searches
are made under supervision and not far from the scrutiny of the
traveling public. Moreover, the airlines, which have their
representatives present, have a definite and substantial interest in
assuring that their passengers are not unnecessarily harassed. The
officers conducting the search under these circumstances are much
more likely to be solicitous of the Fourth Amendment rights of the
traveling public than in more isolated, unsupervised surroundings. SDAaTC
 Our conclusion, after this tripartite weighing of the relevant
factors, is that the standards for initiating a search of a person at the
boarding gate should be no more stringent than those applied in border
crossing situations. In the critical pre-boarding area where this search
started, reasonableness does not require that officers search only
those passengers who meet a profile or who manifest signs of
nervousness or who otherwise appear suspicious. Such a requirement
would have to assume that hijackers are readily identifiable or that they
invariably possess certain traits. The number of lives placed at hazard
by this criminal paranoia forbid taking such deadly chances. As Judge
Friendly has stated:
Determination of what is reasonable requires a weighing
of the harm against the need. When the object of the
search is simply the detection of past crime, probable
cause to arrest is generally the appropriate test. . . .
When the risk is the jeopardy to hundreds of human lives
and millions of dollars of property inherent in the pirating
or blowing up of a large airplane, the danger alone meets
the test of reasonableness, so long as the search is
conducted in good faith for the purpose of preventing
hijacking or like damage and with reasonable scope and
the passenger has been given advance notice of his
liability to such a search so that he can avoid it by
choosing not to travel by air. (Citations omitted.)
According to United States v. Aukai, 60 US case law had erroneously
suggested that the reasonableness of airport screening searches is
dependent upon the passenger's consent, either ongoing consent or
irrevocable implied consent. It opined:
The constitutionality of an airport screening search, however,
does not depend on consent, see Biswell, 406 U.S. at 315, and
requiring that a potential passenger be allowed to revoke consent to an
ongoing airport security search makes little sense in a post-9/11 world.
Such a rule would afford terrorists multiple opportunities to attempt to
penetrate airport security by "electing not to fly" on the cusp of
detection until a vulnerable portal is found. This rule would also allow
terrorists a low-cost method of detecting systematic vulnerabilities in
airport security, knowledge that could be extremely valuable in
planning future attacks. Likewise, given that consent is not required, it
makes little sense to predicate the reasonableness of an administrative
airport screening search on an irrevocable implied consent theory.
Rather, where an airport screening search is otherwise reasonable and
conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is
required is the passenger's election to attempt entry into the secured
area of an airport. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107.
Under current TSA regulations and procedures, that election occurs
 when a prospective passenger walks through the magnetometer or
places items on the conveyor belt of the x-ray machine. 61 (Citation
omitted.)
Currently, US courts are of the view that the constitutionality of a
screening search does not depend on the passenger's consent once he
enters the secured area of an airport. The requirement in Davis 62 of allowing
passengers to avoid the search by electing not to fly does not extend to one
who has already submitted his luggage for an x-ray scan. 63 If a potential
passenger chooses to avoid a search, he must elect not to fly before placing
his baggage on the x-ray machine's conveyor belt. 64 The right to abandon air
travel must be exercised prior to commencing the screening procedures. Any
other rule would allow potential hijackers to leave whenever detection seemed
imminent and permit them to try again another day. 65
The instant case does not qualify
as a legitimate administrative
search in an airport.

Similar to the mission of the Transportation Security Administration of

the US Department of Homeland Security, the Office of Transportation
Security under the Department of Transportation and its predecessors has
been primarily 66 mandated to ensure civil aviation security. 67 To be precise,
the OTS is tasked to implement Annex 17 of the ICAO Convention on aviation
security which seeks to safeguard civil aviation and its facilities against acts of
unlawful interference, which include but not limited to:
1. unlawful seizure of aircraft,
2. destruction of an aircraft in service,
3. hostage-taking on board aircraft or on aerodromes,
4. forcible intrusion on board an aircraft, at an airport or on the premises
of an aeronautical facility,
5. introduction on board an aircraft or at an airport of a weapon or
hazardous device or material intended for criminal purposes,
6. use of an aircraft in service for the purpose of causing death, serious
bodily injury, or serious damage to property or the environment,
7. communication of false information such as to jeopardize the safety
of an aircraft in flight or on the ground, of passengers, crew,
ground personnel or the general public, at an airport or on the
premises of a civil aviation facility. 68
acEHCD

Among others, the OTS has to enforce R.A. No. 6235 or the Anti-
Hijacking Law. 69 It provides that an airline passenger and his hand-carried
luggage are subject to search for, and seizure of, prohibited materials or
substances and that it is unlawful for any person, natural or juridical, to ship,
load or carry in any passenger aircraft, operating as a public utility within the
Philippines, any explosive, flammable, corrosive or poisonous substance or
material. 70
It is in the context of air safety-related justifications, therefore, that
routine airport security searches and seizures are considered as permissible
under Section 2, Article III of the Constitution.
In this case, what was seized from Eanna were two rolled sticks of dried
marijuana leaves. Obviously, they are not explosive, flammable, corrosive or
poisonous substances or materials, or dangerous elements or devices that
may be used to commit hijacking or acts of terrorism. More importantly, the
illegal drugs were discovered only during the final security checkpoint, after a
pat down search was conducted by SSO Suguitan, who did not act based on
personal knowledge but merely relied on an information given by CSI Tamayo
that Eanna was possibly in possession of marijuana. In marked contrast, the
illegal drugs confiscated from the accused in Johnson and the subsequent
cases of People v. Canton, 71 People v.
Suzuki, 72 Sales v. People, 73 and People v. Cadidia, 74 where incidentally
uncovered during the initial security check, in the course of the routine airport
screening, after the defendants were frisked and/or the alarm of the metal
detector was triggered.
Airport search is reasonable when limited in scope to the object of the
Anti-Hijacking program, not the war on illegal drugs. Unlike a routine search
where a prohibited drug was found by chance, a search on the person of the
passenger or on his personal belongings in a deliberate and conscious effort
to discover an illegal drug is not authorized under the exception to the warrant
and probable cause requirement. 75 The Court is not empowered to suspend
constitutional guarantees so that the government may more effectively wage a
"war on drugs." If that war is to be fought, those who fight it must respect the
rights of individuals, whether or not those individuals are suspected of having
committed a crime. 76
Nonetheless, there is a valid
consented warrantless search in
this case.

The constitutional immunity against unreasonable searches and

seizures is a personal right which may be waived. 77 A person may voluntarily
consent to have government officials conduct a search or seizure that would
otherwise be barred by the Constitution. Like the Fourth Amendment, Section
2, Article III of the Constitution does not proscribe voluntary cooperation. 78
 Yet, a person's "consent to a [warrantless] search, in order to be
voluntary, must be unequivocal, specific and intelligently given, [and]
uncontaminated by any duress or coercion[.]" 79 The question of whether a
consent to a search was "voluntary" or was the product of duress or coercion,
express or implied, is a question of fact to be determined from the totality of all
the circumstances. 80
Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given:
(1) the age of the defendant; (2) whether [he] was in a public or a
secluded location; (3) whether [he] objected to the search or passively
looked on; (4) the education and intelligence of the defendant; (5) the
presence of coercive police procedures; (6) the defendant's belief
that no incriminating evidence [will] be found; (7) the nature of the
police questioning; (8) the environment in which the questioning took
place; and (9) the possibly vulnerable subjective state of the person
consenting. 81
Consent to a search is not to be lightly inferred, but shown by clear and
convincing evidence. 82 The government bears the burden of proving
"consent." 83 In the US, it has been held that when the government relies on
the "consent" exception to the warrant requirement, two main issues must be
litigated: did the defendant indeed consent, and did the defendant do so with
the requisite voluntariness? 84 Here, we have ruled that to constitute a waiver,
it must first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and, lastly,
that said person had an actual intention to relinquish the right. 85 SDHTEC

While knowledge of the right to refuse consent is one factor to be taken

into account, the government need not establish such knowledge as the sine
qua non of effective consent. 86 On the other hand, lack of objection to the
search and seizure is not tantamount to a waiver of constitutional right or a
voluntary submission to the warrantless search and seizure. 87 Even when
security agents obtain a passenger's express assent to a search, this assent
ordinarily will not constitute a valid "consent" if the attendant circumstances
will establish nothing more than acquiescence to apparent lawful
authority. 88 The Fourth Amendment inquiry of whether a reasonable person
would have felt free to decline the officers' requests or otherwise terminate the
encounter applies equally to police encounters that take place on trains
planes, and city streets. 89 "Consent" that is the product of official intimidation
or harassment is not consent at all. 90
In this case, the Court finds that there is a valid warrantless search
based on express consent. When SSO Suguitan requested to conduct a pat
down search on Eanna, the latter readily agreed. Record is devoid of any
evidence that he manifested objection or hesitation on the body search. The
request to frisk him was orally articulated to him in such language that
left no room for doubt that he fully understood what was requested.
Unperturbed, he verbally replied to the request demonstrating that he also
understood the nature and consequences of the request. He voluntarily raised
his hands by stretching sideward to the level of his shoulders with palms
open. His affirmative reply and action cannot be viewed as merely an implied
acquiescence or a passive conformity to an authority considering that SSO
Suguitan is not even a police officer and cannot be said to have acted with a
coercive or intimidating stance. Further, it is reasonable to assume that Eanna
is an educated and intelligent man. He is a 53-year-old working professional
(claimed to be employed or attached to a drug addiction center) and a well-
travelled man (said to have been in 22 different countries and spent hours in
customs). 91 Indubitably, he knew, actually or constructively, his right against
unreasonable searches or that he intentionally conceded the same. Having
been obtained through a valid warrantless search, the sticks of marijuana are
admissible in evidence against him. Corollarily, his subsequent arrest,
although likewise without warrant, was justified since it was effected upon the
discovery and recovery of an illegal drug in his person in flagrante delicto.
There is substantial compliance
with the chain of custody rule.

At the time of the commission of the crime, the applicable law is

R.A. No. 9165. 92 Section 1 (b) of Dangerous Drugs Board Regulation No. 1,
Series of 2002, which implements the law, defines chain of custody as —
[T]he duly recorded authorized movements and custody of seized
drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. Such record of movements and
custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and
time when such transfer of custody [was] made in the course of
safekeeping and use in court as evidence, and the final disposition. 93
The chain of custody rule is but a variation of the principle that real
evidence must be authenticated prior to its admission into evidence. 94 To
establish a chain of custody sufficient to make evidence admissible, the
proponent needs only to prove a rational basis from which to conclude that
the evidence is what the party claims it to be. 95 In a criminal case, the
prosecution must offer sufficient evidence from which the trier of fact
could reasonably believe that an item still is what the government claims it to
be. 96 As regards the prosecution of illegal drugs, the well-established US
federal evidentiary rule is when the evidence is not readily identifiable and is
susceptible to alteration by tampering or contamination, courts require a more
stringent foundation entailing a chain of custody of the item with sufficient
completeness to render it improbable that the original item has either been
exchanged with another or been contaminated or tampered with. 97 This
evidentiary rule was adopted in Mallillin v. People, 98 where this Court also
discussed how, ideally, the chain of custody of seized items should be
established:
As a method of authenticating evidence, the chain of custody
rule requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was received, where
it was and what happened to it while in the witness' possession, the
condition in which it was received and the condition in which it was
delivered to the next link in the chain. These witnesses would then
describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for
someone not in the chain to have possession of the same. 99 AScHCD

In the present case, the prosecution was able to prove, through the
documentary and testimonial evidence, that the integrity and evidentiary value
of the seized items were properly preserved in every step of the way.
Upon confiscation of the two rolled sticks of dried marijuana leaves from
Eanna, SSO Suguitan put them on the nearby screening table in front of
Eanna and PO1 Manadao, Jr. The sticks were the only items placed on the
table. 100 Thereafter, the seized items were turned-over by SSO Suguitan to
PO3 Javier, who placed them on a tray together with the other belongings of
Eanna. 101 It must be emphasized that SSO Suguitan is an airport screening
officer and not a police officer who is authorized to "arrest" or
"apprehend" 102 Eanna. Hence, he should not be considered as the
"apprehending officer" who must immediately mark and conduct the physical
inventory and photograph of the seized items conformably with Section 21 of
R.A. No. 9165 and its Implementing Rules and Regulations (IRR).
PO3 Javier was the only one in possession of the two rolled sticks of
dried marijuana leaves from the time he took custody of the same at the
airport up to the time he submitted the same to the crime laboratory
office. 103 At the PNP-ASG office, the confiscated illegal drug was marked,
physically inventoried, and photographed in front of Eanna, with SSO
Suguitan, a Barangay Chairman, a Barangay Kagawad, and an ABS-CBN
cameraman as witnesses. 104 Per Request for Laboratory Examination, 105 the
specimens were personally delivered by PO3 Javier to the Ilocos Norte
Provincial Crime Laboratory Service where PO3 Padayao received them.
Finally, based on the Chemistry Report 106 of Police Inspector Navarro and
the stipulation of facts 107 agreed upon by the parties, the specimens tested
positive for the presence of marijuana after a qualitative examination.
The specimens contained in the Ziploc re-sealable plastic bag that were
marked, tested, and presented in court were positively identified not only by
PO3 Javier but also by SSO Suguitan as the same two rolled sticks of dried
marijuana leaves seized from Eanna. 108 Hence, it would be immaterial even
if, as Eanna argues, PO3 Javier had no personal knowledge of their
possession by Eanna and their seizure by SSO Suguitan.
Eanna contends that the two sticks of rolled paper allegedly containing
marijuana were not marked immediately and were just laid bare on a table at
the PNP-ASG office. According to him, the ABS-CBN video footage taken
shortly before midnight, which Badua submitted and which was already edited
following the news report format, showed that the two sticks were without
markings at first and then with markings later on.
The Court notes that the compact disk showing the video of what
transpired inside the PNP-ASG office does not contain the full footage that
Badua had taken. It was already edited for purposes of news
report. 109 Assuming that there is truth to the allegation that the two sticks of
marijuana were not immediately marked, such fact does not automatically
result in an acquittal. As long as the integrity and evidentiary value of an
illegal drug were not compromised, non-compliance with Section 21 (1) of
R.A. No. 9165 and its IRR may be excused. In several cases, 110 we affirmed
the conviction of the accused-appellant despite recognizing that the seized
illegal drug was not immediately marked at the place of arrest. Likewise,
in People v. Sic-open, 111 the Court sustained the conviction of the accused-
appellant even if the physical inventory and photograph of the illegal drug
were not immediately done at the place where it was confiscated. Here, the
reason for the non-observance with the rule is justified. Immediate marking,
physical inventory, and photograph of the confiscated drug cannot be done at
the final checkpoint area because it started to become crowded by the
constant comings and goings of departing passengers. The seized items were
fittingly brought by PO3 Javier to the PNP-ASG office where it was made sure
that the barangay officials and a media man were in attendance to witness the
regularity of the entire proceedings.
The peculiar situation in airports calls for a different treatment in the
application of Section 21 (1) of R.A. No. 9165 and its IRR. To require all the
time the immediate marking, physical inventory, and photograph of the seized
illegal drug will definitely have a domino effect on the entire airport
operation no matter how brief the whole procedure was conducted. Stuck
passengers will cause flight delays, resulting not just economic losses but
security threats as well. Besides, to expect the immediate marking, physical
inventory, and photograph of the dangerous drug at the place of arrest is to
deny the reality that the persons 112 required by law to witness the procedure
are unavailable at the moment of arrest. Unlike in a buy-bust operation which
is supposed to be pre-planned and already coordinated in order to ensure the
instant presence of necessary witnesses, arrests and seizures in airports due
to illegal drugs are almost always spontaneous and unanticipated.
In our view, the period of waiting for the arrival of the witnesses did not
affect the integrity and evidentiary value of the subject illegal drug, on the
following grounds:
First, the airport police ensured that only authorized personnel were
inside the PNP-ASG office during the investigation. PO3 Javier claimed that
he was with SPO3 Domingo, PO1 Manadao, Jr., PO2 Caole, Jr., SSO
Suguitan, SSO Bal-ot, and P/Supt. Apias. 113 It was only the members of the
PNP-ASG and of the Laoag City PNP, the media, and the two barangay
officials who were allowed to stay inside the room. 114 The defense counsel
recognized that the PNP-ASG office has a limited space and not big in size,
estimating it to be around three by four meters (although PO1 Terson
approximated it to be five by seven meters). 115 AcICHD

Second, the airport police made sure that no one could touch the
confiscated drug even if it was in full view of everyone. PO3 Javier testified
that the two rolled sticks of dried marijuana leaves were placed on the
investigation table where everybody could look but not hold. 116 Eanna could
also see any attempt to switch or alter the evidence as he was seated just in
front of the table while the others guarded him. 117 Interestingly, instead of
being concerned at the time of the risk of substitution, he even requested to
smoke so he was allowed to go out of the PNP-ASG office. 118 Although the
apprehending officers could have exercised a better judgment, they are
under no obligation to explain why the accused was permitted to leave the
office in order to smoke. Such fact should not be taken against them as the
integrity and evidentiary value of the seized items are not automatically
rendered infirmed. Certainly, we consider the totality of circumstances present
in this case. Eanna's right to be presumed innocent until proven otherwise
includes the constitutional right to enjoy his liberty, albeit in a restricted sense
due to his arrest. He retains his (limited) freedom of movement during the
course of the investigation. Likewise, it must be added that the natural
tendency of an innocent person accused of committing a crime is not to rest
easy by ensuring that the evidence being used against him is not altered,
tampered or swapped. In this case, Eanna's resolve to smoke outside
notwithstanding a pending concern either shows that he was adamant in his
claim that what was confiscated from him were merely flavored tobacco or
that he was already resigned to the fact that he was busted possessing
marijuana. The Court cannot speculate or engage in guesswork.
And third, the plausibility of tampering with the evidence is nil as the
airport police were preoccupied in accomplishing the necessary
documentation relative to the arrest and seizure. PO3 Javier shared that while
waiting for the arrival of the barangay officials, their group were busy
preparing documents which mainly consist of reports regarding the
incident. 119 The trial court equally noted that "there were a lot of things they
were doing like the preparation of the spot report that they [would] forward to
Manila such that their Deputy Chief even helped them. It is precisely for [this]
reason that the two sticks of marijuana [appear] to have been submitted to the
crime lab only at 12:50 a.m. of the following day, July 15, 2013." 120
It has been raised that the drug evidence should have been placed in a
sealed container. Eanna asserts that the evidence was rendered susceptible
to alteration, tampering and swapping because the Ziploc was not sealed by
an adhesive tape or any means other than the natural, built-in re-sealable
feature of the plastic bag. Contrary to his allegation, however, the specimens
that were submitted to the RTC were actually placed in a big transparent re-
sealable Hefty One Zip plastic bag sealed with a masking tape with
markings. 121 Even if there is truth to his representation, the specimens
contained in the Ziploc re-sealable plastic bag that were marked, tested, and
presented in court were positively identified by SSO Suguitan and PO3 Javier,
who both testified under oath, as the same two rolled sticks of dried marijuana
leaves that were seized from Eanna. Raising a mere possibility is not enough.
Eanna should have shown with particularity how the drug evidence was
altered, tampered or swapped. The nature of illegal drugs as fungible things is
not new to him. He is not a stranger to prohibited drugs, claiming to be familiar
with marijuana since he is employed or attached to a drug addiction center
and has been in 22 different countries and spent hours in Customs. 122 As the
RTC opined, he could have submitted for laboratory examination the tiny
grains of dried leaves and seeds that were found in his camera bag in order to
prove that the alleged sticks of marijuana seized from him were in fact
flavored tobacco that he used to smoke all the time. 123
The same reasoning as above can be said even if we are to admit that
PO3 Padayao placed his own marking on the specimens he received from
PO3 Javier and before he turned them over to the forensic chemist. A marking
made on the corpus delicti itself is not automatically considered a form of
contamination which irreversibly alters its physical state and compromises its
integrity and evidentiary value.
Where a defendant identifies a defect in the chain of custody, the
prosecution must introduce sufficient proof so that the judge could find that
the item is in substantially the same condition as when it was seized, and may
admit the item if there is a reasonable probability that it has not been changed
in important respects. 124 However, there is a presumption of integrity of
physical evidence absent a showing of bad faith, ill will, or tampering with the
evidence. 125 Merely raising the possibility of tampering or misidentification is
insufficient to render evidence inadmissible. 126 Absent some showing by the
defendant that the evidence has been tampered with, it will not be presumed
that those who had custody of it would do so. 127 Where there is no evidence
indicating that tampering with the exhibits occurred, the courts presume that
the public officers have discharged their duties properly. 128
In this jurisdiction, it has been consistently held that considering that the
integrity of the evidence is presumed to be preserved unless there is a
showing of bad faith, ill will, or proof that the evidence has been tampered
with, the defendant bears the burden to show that the evidence was tampered
or meddled with to overcome a presumption of regularity in the handling of
exhibits by the public officers and a presumption that the public officers
properly discharge their duties. 129 People v. Agulay 130 in fact ruled that
failure to comply with the procedure in Section 21 (a), Article II of the IRR of
R.A. No. 9165 does not bar the application of presumption of regularity in the
performance of official duties. Thus:
The dissent agreed with accused-appellant's assertion that the
police operatives failed to comply with the proper procedure in the
custody of the seized drugs. It premised that non-compliance with
the procedure in Section 21 (a), Article II of the Implementing
Rules and Regulations of Republic Act No. 9165 creates an
irregularity and overcomes the presumption of regularity
accorded police authorities in the performance of their official
duties. This assumption is without merit.
First, it must be made clear that in several cases decided
by the Court, failure by the buy-bust team to comply with said
section did not prevent the presumption of regularity in the
performance of duty from applying.
Second, even prior to the enactment of R.A. 9165, the
requirements contained in Section 21 (a) were already there per
Dangerous Drugs Board Regulation No. 3, Series of 1979. Despite
the presence of such regulation and its non-compliance by the
buy-bust team, the Court still applied such presumption. We held:
The failure of the arresting police officers to comply with said
DDB Regulation No. 3, Series of 1979 is a matter strictly between the
Dangerous Drugs Board and the arresting officers and is totally
irrelevant to the prosecution of the criminal case for the reason that the
commission of the crime of illegal sale of a prohibited drug is
considered consummated once the sale or transaction is established
 and the prosecution thereof is not undermined by the failure of the
arresting officers to comply with the regulations of the Dangerous
Drugs Board. 131 (Emphasis in the original)
People v. Daria, Jr., 132 People v. Gratil, 133 and People v.
Bala 134 have followed the Agulay ruling. TAIaHE

It is unfortunate that rigid obedience to procedure on the chain of

custody creates a scenario wherein the safeguards supposedly set to shield
the innocent are more often than not exploited by the guilty to escape rightful
punishment. 135 The Court reiterates that while the procedure on the chain of
custody should be perfect, in reality, it is almost always impossible to obtain
an unbroken chain. 136 The chain of custody need not be perfect for the
evidence to be admissible. 137 A complete chain of custody need not always
be proved. 138 Thus, failure to strictly comply with Section 21 (1) of R.A. No.
9165 does not necessarily render an accused person's arrest illegal or the
items seized or confiscated from him inadmissible or render void and invalid
such seizure. 139 The most important factor is the preservation of the integrity
and evidentiary value of the seized item. 140
Non-compliance with the requirements of the law is not automatically
fatal to the prosecution's case and the accused may still be held guilty of the
offense charged. This Court ratiocinated in People v. Del Monte: 141
Under Section 3 of Rule 128 of the Rules of Court, evidence is
admissible when it is relevant to the issue and is not excluded by the
law or these rules. For evidence to be inadmissible, there should be a
law or rule which forbids its reception. If there is no such law or rule,
the evidence must be admitted subject only to the evidentiary weight
that will [be] accorded [to] it by the courts. x x x
We do not find any provision or statement in said law or in any
rule that will bring about the non-admissibility of the confiscated and/or
seized drugs due to non-compliance with Section 21 of Republic
Act No. 9165. The issue therefore, if there is non-compliance with said
section, is not of admissibility, but of weight — evidentiary merit or
probative value — to be given the evidence. The weight to be given by
the courts on said evidence depends on the circumstances obtaining in
each case. 142 (Italics in the original.)
We restated in People v. Moner 143 that if the evidence of illegal drugs
was not handled precisely in the manner prescribed by the chain of custody
rule, the consequence relates not to inadmissibility that would automatically
destroy the prosecution's case but rather to the weight of evidence presented
for each particular case. The saving clause under Section 21 (1) of R.A. No.
9165 recognizes that the credibility of the prosecution's witnesses and the
admissibility of other evidence are well within the power of trial court judges to
decide. The Court went on to state that under the doctrine of separation of
powers, it is important to distinguish if a matter is a proper subject of the rules
of evidence, which are promulgated by the Court pursuant to paragraph (5),
Section 5, Article VIII of the 1987 Constitution, or if it is a subject of
substantive law, which is passed by an act of Congress. Taking into account
the distinction in criminal law that a substantive law declares what acts are
crimes and prescribes the punishment for committing them while a procedural
law provides or regulates the steps by which one who commits a crime is to
be punished, it was concluded that the chain of custody rule is a matter of
evidence and a rule of procedure; therefore, it is the Court which has the last
say regarding the appreciation of evidence.
Certainly, the chain of custody rule is a matter of evidence and a rule of
procedure, it being ultimately anchored on the weight and admissibility of
evidence which the courts have the exclusive prerogative to decide. Any
missing link, gap, doubt, challenge, break, problem, defect or deficiency in the
chain of custody goes to the weight of the evidence, not its
admissibility. 144 Once admitted, the court evaluates it and, based thereon,
may accept or disregard the evidence. 145 In People v. Sipin, 146 this Court,
through the ponente, recently conveyed:
At this point, it is not amiss for the ponente to express his
position regarding the issue of which between the Congress and the
Judiciary has jurisdiction to determine sufficiency of compliance with
the rule on chain of custody, which essentially boils down to the
application of procedural rules on admissibility of evidence. In this
regard, the ponente agrees with the view of Hon. Associate Justice
Teresita J. Leonardo-De Castro in People v. Teng Moner y Adam that
"if the evidence of illegal drugs was not handled precisely in the
manner prescribed by the chain of custody rule, the consequence
relates not to inadmissibility that would automatically destroy the
prosecution's case but rather to the weight of evidence presented for
each particular case." As aptly pointed out by Justice Leonardo-De
Castro, the Court's power to promulgate judicial rules, including rules
of evidence, is no longer shared by the Court with Congress.
The ponente subscribes to the view of Justice Leonardo-De
Castro that the chain of custody rule is a matter of evidence and a rule
of procedure, and that the Court has the last say regarding the
appreciation of evidence. Evidentiary matters are indeed well within the
powers of courts to appreciate and rule upon, and so, when the courts
find appropriate, substantial compliance with the chain of custody rule
as long as the integrity and evidentiary value of the seized items have
been preserved may warrant the conviction of the accused. cDHAES

The ponente further submits that the requirements of marking

the seized items, conduct of inventory and taking photograph in
the presence of a representative from the media or the DOJ and a
 local elective official, are police investigation procedures which
call for administrative sanctions in case of non-compliance.
Violation of such procedure may even merit penalty under
R.A. No. 9165, to wit:
Section 29. Criminal Liability for Planting of
Evidence. — Any person who is found guilty of "planting"
any dangerous drug and/or controlled precursor and
essential chemical, regardless of quantity and purity,
shall suffer the penalty of death.
Section 32. Liability to a Person Violating Any
Regulation Issued by the Board. — The penalty of
imprisonment ranging from six (6) months and one (1)
day to four (4) years and a fine ranging from Ten
thousand pesos (P10,000.00) to Fifty thousand pesos
(P50,000.00) shall be imposed upon any person found
violating any regulation duly issued by the Board
pursuant to this Act, in addition to the administrative
sanctions imposed by the Board.
However, non-observance of such police administrative
procedures should not affect the validity of the seizure of the evidence,
because the issue of chain of custody is ultimately anchored on the
admissibility of evidence, which is exclusively within the prerogative of
the courts to decide in accordance with the rules on evidence.
(Emphasis and italics in the original)
Strict compliance with the requirements of Section 21 (1) of R.A. No.
9165 may not always be possible under field conditions; the police operates
under varied conditions, many of them far from ideal, and cannot at all times
attend to all the niceties of the procedures in the handling of confiscated
evidence. 147 Like what have been done in past cases, we must not look for
the stringent step-by-step adherence to the procedural requirements; what is
important is to ensure the preservation of the integrity and the evidentiary
value of the seized items, as these would determine the guilt or innocence of
the accused. 148 The identity of the confiscated drugs is preserved when the
drug presented and offered as evidence in court is the exact same item
seized from the accused at the time of his arrest, while the preservation of the
drug's integrity means that its evidentiary value is intact as it was not subject
to planting, switching, tampering or any other circumstance that casts doubt
as to its existence. 149
To assess an allegedly faulty chain of custody, the court looks for
ample corroborative evidence as to the evidence's acquisition and subsequent
custody. 150 Before admitting or excluding real evidence, it must consider the
nature of the evidence, and the surrounding circumstances, including
presentation, custody and probability of tampering or alteration. 151 If, after
 considering these factors, it is determined that the evidence is substantially in
the same condition as when the crime was committed, the evidence may be
admitted. 152 The court need not rule out every possibility that the evidence
underwent alteration; it needs only to find that the reasonable probability is
that the evidence has not been altered in any material aspect. 153 Physical
evidence is admissible when the possibilities of misidentification or alteration
are eliminated, not absolutely, but as a matter of reasonable probability. 154 All
that is required is that the evidence in question was the same as that involved
in the offense and that it is substantially unchanged. 155
Courts are reminded to tread carefully before giving full credit to the
testimonies of those who conducted the illegal drug operations and must
thoroughly evaluate and differentiate those errors that constitute a simple
procedural lapse from those that amount to a gross, systematic, or deliberate
disregard of the safeguards drawn by the law and the rules. 156 In the
performance of this function, among the evidentiary rules to apply are the
following: test in measuring the value of a witness' testimony, appreciation of
inculpatory facts, positive and negative evidence, one-witness rule, best
evidence rule, suppression of evidence, presumption of regular performance
of official duty, rules on circumstantial evidence and conspiracy, and (non)
presentation of poseur buyer or marked money. 157
WHEREFORE, premises considered, the February 9, 2016 Decision
and the July 21, 2016 Resolution of the Court of Appeals in CA-G.R. CR No.
36412, which affirmed the November 22, 2013 Decision of the Regional Trial
Court, Branch 13, Laoag City, in Criminal Case No. 15585-13, finding
accused-appellant Eanna O'Cochlain guilty for violation of Section 11, Article
II of Republic Act No. 9165, are AFFIRMED. ASEcHI

SO ORDERED.
||| (People v. O'Cochlain, G.R. No. 229071, [December 10, 2018])

Rules 113 and 126 of the Revised Rules of Court

Section 3 – Privacy of Communication and Correspondence

Ople vs. Torres [G.R. No. 127685, July 23, 1998]

[G.R. No. 127685. July 23, 1998.]

BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES,

ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO
HABITO, ROBERT BARBERS, CARMENCITA REODICA,
CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA,
 HEAD OF THE NATIONAL COMPUTER CENTER and
CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

SYNOPSIS

Administrative Order No. 308, entitled "Adoption of a National

Computerized Identification Reference System," was issued by the President on
December 12, 1996. Petitioner challenges the constitutionality of said
Administrative Order on two (2) grounds, namely: (1) it is a usurpation of the
power of Congress to legislate; and (2) its impermissibility intrudes on our
citizenry's protected zone of privacy. Petitioner contends that the Administrative
Order is not a mere administrative order but a law and, hence, beyond the power
of the President to issue. He further alleges that said Administrative Order
establishes a system of identification that is all-encompassing in scope, affects
the life and liberty of every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.
In declaring the Administrative Order null and void for being
unconstitutional, the Supreme Court held that the Administrative Order involves a
subject that is not appropriate to be covered by said administrative order. An
administrative order is an ordinance issued by the President which relates to
specific aspects in the administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing the law
and carrying out the legislative policy.
The essence of privacy is the right to be let alone. The right to privacy is
recognized and enshrined in several provisions of the Constitution. Zones of
privacy are likewise recognized and protected in our laws. Unlike the dissenters,
we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show
that A. O. No. 308 is justified by some compelling state interest and that it is
narrowly drawn. What is not arguable is the broadness, the vagueness, the
overbreath of A. O. No. 308 which if implemented will put our people's right to
privacy in clear and present danger. CaDSHE

A. O. No. 308 falls short of assuring that personal information which will be
gathered about our people will only be processed for unequivocally specified
purposes. Even while we strike down A. O. No. 308, we spell out that the Court is
not per se against the use of computers to accumulate, store, process, retrieve
and transmit data to improve our bureaucracy. Given the record-keeping power
of the computer, only the indifferent will fail to perceive the danger that A. O. No.
308 gives the government the power to compile a devastating dossier against
unsuspecting citizens.
 SYLLABUS

1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; LEGISLATIVE

POWER; CONSTRUED. — Legislative power is "the authority, under
the Constitution, to make laws, and to alter and repeal them." The Constitution,
as the will of the people in their original, sovereign and unlimited capacity, has
vested this power in the Congress of the Philippines. The grant of legislative
power to Congress is broad, general and comprehensive. The legislative body
possesses plenary power for all purposes of civil government. Any power,
deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. In fine, except as
limited by the Constitution, either expressly or impliedly, legislative power
embraces all subject and extends to matters of general concern or common
interest.
2. ID.; EXECUTIVE DEPARTMENT; EXECUTIVE POWER IS VESTED IN
THE PRESIDENT. — While Congress is vested with the power to enact
laws, the President executes the laws. The executive power is vested in the
President. It is generally defined as the power to enforce and administer the
laws. It is the power of carrying the laws into practical operation and enforcing
their due observance. As head of the Executive Department, the President is the
Chief Executive. He represents the government as a whole and sees to it that all
laws are enforced by the officials and employees of this department. He has
control over the executive department, bureaus and offices. This means that he
has the authority to assume directly the functions of the executive department,
bureau and office, or interfere with the discretion of its officials. Corollary to the
power of control, the President also has the duty of supervising the enforcement
of laws for the maintenance of general peace and public order. Thus, he is
granted administrative power over bureaus and offices under his control to
enable him to discharge his duties effectively. Administrative power is concerned
with the work of applying policies and enforcing orders as determined by proper
governmental organs. It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents. To this end,
he can issue administrative orders, rules and regulations.
3. ID.; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM (A. O. No. 308); DOES NOT IMPLEMENT THE LEGISLATIVE POLICY
OF THE ADMINISTRATIVE CODE OF 1987; REASONS THEREFOR. —
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An
administrative order is an ordinance issued by the President which relates to
specific aspects in the administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing the law
and carrying out the legislative policy. We reject the argument that A.O. No.
308 implements the legislative policy of the Administrative Code of 1987.
The Code is a general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance" and "embodies
changes in administrative structures and procedures designed to serve the
people." The Code is divided into seven (7) Books: Book I deals with Sovereignty
and General Administration, Book II with the Distribution of Powers of the three
branches of Government, Book III on the Office of the President, Book IV on the
Executive Branch, Book V on the Constitutional Commissions, Book VI on
National Government Budgeting, and Book VII on Administrative Procedure.
These Books contain provisions on the organization, powers and general
administration of the executive, legislative and judicial branches of government,
the organization and administration of departments, bureaus and offices under
the executive branch, the organization and functions of the Constitutional
Commissions and other constitutional bodies, the rules on the national
government budget, as well as guidelines for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code covers both
the internal administration of government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside
government. It cannot be simplistically argued that A.O. No. 308 merely
implements the Administrative Code of 1987. It establishes for the first time a
National Computerized Identification Reference System. Such a System requires
a delicate adjustment of various contending state policies — the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a subject that should be
covered by law.
4. ID.; ID.; CANNOT PASS CONSTITUTIONAL MUSTER AS AN
ADMINISTRATIVE LEGISLATION BECAUSE FACIALLY IT VIOLATES THE
RIGHT TO PRIVACY. — Assuming, arguendo, that A.O. No. 308 need not be
the subject of a law, still it cannot pass constitutional muster as an administrative
legislation because facially it violates the right to privacy. The essence of privacy
is the "right to be let alone.
5. ID.; ID.; ID.; REASON THEREFOR. — The potential for misuse of the
data to be gathered under A.O. No. 308 cannot be underplayed as the
dissenters do. Pursuant to said administrative order, an individual must present
his PRN everytime he deals with a government agency to avail of basic services
and security. His transactions with the government agency will necessarily be
recorded — whether it be in the computer or in the documentary file of the
agency. The individual's file may include his transactions for loan availments,
income tax returns, statement of assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent the use of the PRN, the
better the chance of building a huge and formidable information base through the
electronic linkage of the files. The data may be gathered for gainful and useful
government purposes; but the existence of this vast reservoir of personal
information constitutes a covert invitation to misuse, a temptation that may be too
great for some of our authorities to resist. We can even grant, arguendo, that the
computer data file will be limited to the name, address and other basic personal
information about the individual. Even that hospitable assumption will not
save. A.O. No. 308 from constitutional infirmity for again said order does not tell
us in clear and categorical terms how these information gathered shall be
handled. It does not provide who shall control and access the data, under what
circumstances and for what purpose. These factors are essential to safeguard
the privacy and guaranty the integrity of the information. Well to note, the
computer linkage gives other government agencies access to the
information. Yet, there are no controls to guard against leakage of information.
When the access code of the control programs of the particular computer system
is broken, an intruder, without fear of sanction or penalty, can make use of the
data for whatever purpose, or worse, manipulate the data stored within the
system. It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only be
processed for unequivocally specified purposes. The lack of proper safeguards in
this regard of A.O. No. 308 may interfere with the individual's liberty of abode and
travel by enabling authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and circumvent the right
against self-incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable searches and
seizures. The possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. They threaten the very abuses that the Bill of
Rights seeks to prevent. cSTHaE

6. ID.; ID.; ID.; THE USE OF BIOMETRICS AND COMPUTER

TECHNOLOGY DOES NOT ASSURE THE INDIVIDUAL OF A REASONABLE
EXPECTATION OF PRIVACY. — We reject the argument of the Solicitor
General that an individual has a reasonable expectation of privacy with regard to
the National ID and the use of biometrics technology as it stands on quicksand.
The reasonableness of a person's expectation of privacy depends on a two-part
test: (1) whether by his conduct, the individual has exhibited an expectation of
privacy; and (2) whether this expectation is one that society recognizes an
reasonable. The factual circumstances of the case determines the
reasonableness of the expectation. However, other factors, such as customs,
physical surroundings and practices of a particular activity, may serve to create
or diminish this expectation. The use of biometrics and computer technology
in A.O. No. 308 does not assure the individual of a reasonable expectation of
privacy. As technology advances, the level of reasonably expected privacy
decreases. The measure of protection granted by the reasonable expectation
diminishes as relevant technology becomes more widely accepted. The security
of the computer data file depends not only on the physical inaccessibility of the
file but also on the advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a minimum standard for a
reasonable expectation of privacy, regardless of technology used, cannot be
inferred from its provisions.

DECISION

PUNO, J :p

The petition at bar is a commendable effort on the part of Senator Blas

F. Ople to prevent the shrinking of the right to privacy, which the revered Mr.
Justice Brandeis considered as "the most comprehensive of rights and the right
most valued by civilized men.'' 1 Petitioner Ople prays that we
invalidate Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" on two important constitutional
grounds, viz: one, it is a usurpation of the power of Congress to legislate, and
two, it impermissibly intrudes on our citizenry's protected zone of privacy. We
grant the petition for the rights sought to be vindicated by the petitioner need
stronger barriers against further erosion. cdphil

A.O. No. 308 was issued by President Fidel V. Ramos on December 12,
1996 and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign
residents with the facility to conveniently transact business with basic
service and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system to properly
and efficiently identify persons seeking basic services on social security
and reduce, if not totally eradicate, fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort among the
various basic services and social security providing agencies and other
government instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
do hereby direct the following:
SEC. 1. Establishment of a National Computerized Identification
Reference System. — A decentralized Identification Reference System
among the key basic services and social security providers is hereby
established.
SEC. 2. Inter-Agency Coordinating Committee. — An Inter-
Agency Coordinating Committee (IACC) to draw-up the implementing
guidelines and oversee the implementation of the System is hereby
created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
SEC. 3. Secretariat. — The National Computer Center (NCC) is
hereby designated as secretariat to the IACC and as such shall provide
administrative and technical support to the IACC.
SEC. 4. Linkage Among Agencies. — The Population
Reference Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among concerned
agencies. The IACC Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the standards in the use of
Biometrics Technology and in computer application designs of their
respective systems.
SEC. 5. Conduct of Information Dissemination Campaign. — The
Office of the Press Secretary, in coordination with the National Statistics
Office, the GSIS and SSS as lead agencies and other concerned
 agencies shall undertake a massive tri-media information dissemination
campaign to educate and raise public awareness on the importance and
use of the PRN and the Social Security Identification Reference.
SEC. 6. Funding. — The funds necessary for the implementation
of the system shall be sourced from the respective budgets of the
concerned agencies.
SEC. 7. Submission of Regular Reports. — The NSO, GSIS and
SSS shall submit regular reports to the Office of the President, through
the IACC, on the status of implementation of this undertaking.
SEC. 8. Effectivity. — This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the year
of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed
the instant petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government agencies, who as members of
the Inter-Agency Coordinating Committee, are charged with the implementation
of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE
POWERS OF THE CONGRESS OF THE REPUBLIC OF THE
PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY
LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE
THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION." 2
Respondents counter-argue:
 A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS
WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE
AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF
THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED
FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold
issues relating to the standing to sue of the petitioner and the justiciability of the
case at bar. More specifically, respondents aver that petitioner has no legal
interest to uphold and that the implementing rules of A.O. No. 308 have yet to be
promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is
a distinguished member of our Senate. As a Senator, petitioner is possessed of
the requisite standing to bring suit raising the issue that the issuance of A.O. No.
308 is a usurpation of legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS funds to
implement A.O. No. 308. 5
The ripeness for adjudication of the petition at bar is not affected by the
fact that the implementing rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face.
His action is not premature for the rules yet to be promulgated cannot cure its
fatal defects. Moreover, the respondents themselves have started the
implementation of A.O. No. 308 without waiting for the rules. As early as January
19, 1997, respondent Social Security System (SSS) caused the publication of a
notice to bid for the manufacture of the National Identification (ID)
card. 6 Respondent Executive Secretary Torres has publicly announced that
representatives from the GSIS and the SSS have completed the guidelines for
the national identification system. 7 All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need not wait for the formality
of the rules to pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable stance as
its result would be to throttle an important constitutional principle and a
fundamental right.
 II
We now come to the core issues. Petitioner claims that A.O. No. 308 is
not a mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in scope, affects the life and liberty of
every Filipino citizen and foreign resident, and more particularly, violates their
right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
power and cannot be allowed. Hence, the exercise by one branch of government
of power belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution, to make
laws, and to alter and repeal them." 8 The Constitution, as the will of the people in
their original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. 9 The grant of legislative power to Congress is
broad, general and comprehensive. 10 The legislative body possesses plenary
power for all purposes of civil government. 11 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress, unless
the Constitution has lodged it elsewhere. 12 In fine, except as limited by
the Constitution, either expressly or impliedly, legislative power embraces all
subjects and extends to matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President
executes the laws. 14 The executive power is vested in the President. 15 It is
generally defined as the power to enforce and administer the laws. 16 It is the
power of carrying the laws into practical operation and enforcing their due
observance. 17
As head of the Executive Department, the President is the Chief Executive.
He represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. 18 He has control over
the executive department, bureaus and offices. This means that he has the
authority to assume directly the functions of the executive department, bureau
and office, or interfere with the discretion of its officials. 19 Corollary to the power
of control, the President also has the duty of supervising the enforcement of laws
for the maintenance of general peace and public order. Thus, he is
granted administrative power over bureaus and offices under his control to
enable him to discharge his duties effectively. 20
 Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. 21 It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. 22 To this end, he can issue administrative orders,
rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative order. An
administrative order is:
"Sec. 3. Administrative Orders. — Acts of the President which
relate to particular aspects of governmental operation in pursuance of
his duties as administrative head shall be promulgated in administrative
orders." 23
An administrative order is an ordinance issued by the President which relates
to specific aspects in the administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing the
law and carrying out the legislative policy. 24 We reject the argument that
A.O. No. 308 implements the legislative policy of the Administrative Code of
1987. The Code is a general law and "incorporates in a unified document the
major structural, functional and procedural principles of governance" 25 and
"embodies changes in administrative structures and procedures designed to
serve the people." 26 The Code is divided into seven (7) Books: Book I deals
with Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive, legislative
and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national government budget, as well as
guidelines for the exercise by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision
and discipline, and the effects of the functions performed by administrative
officials on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements
the Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies — the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law
because it confers no right, imposes no duty, affords no protection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this identification
card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and enjoying
his privileges. Given this reality, the contention that A.O. No. 308 gives no right
and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits
of administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining the
traditional limits of administrative legislation. As well stated by Fisher: ". . . Many
regulations however, bear directly on the public. It is here that administrative
legislation must be restricted in its scope and application. Regulations are not
supposed to be a substitute for the general policy-making that Congress enacts
in the form of a public law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and regulations is not an independent
source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law,
still it cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be let
alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States
Supreme Court gave more substance to the right of privacy when it ruled that the
right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments, 31 viz:
"Specific guarantees in the Bill of Rights have penumbras formed
by emanations from these guarantees that help give them life and
substance . . . Various guarantees create zones of privacy. The right of
association contained in the penumbra of the First Amendment is one,
as we have seen. The Third Amendment in its prohibition against the
quartering of soldiers 'in any house' in time of peace without the consent
 of the owner is another facet of that privacy. The Fourth Amendment
explicitly affirms the 'right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.' The Fifth Amendment in its Self-Incrimination Clause enables
the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: 'The
enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.'"
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr. Justice, later
Chief Justice, Enrique Fernando, we held:
"xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made
the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right of privacy of
married persons; rightfully it stressed "a relationship lying within the zone
of privacy created by several fundamental constitutional guarantees." It
has wider implications though. The constitutional right to privacy has
come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: 'The concept of limited government has
always included the idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is indeed one of the
basic distinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the
dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a
technological age — industrialization, urbanization, and organization —
operate to narrow the area of privacy and facilitate intrusion into it. In
modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian
society.'"
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of
our Constitution. 33 It is expressly recognized in Section 3(1) of the Bill of
Rights:
 "Sec. 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of
the Bill of Rights, viz: 34
"Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
xxx xxx xxx.
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself."
Zones of privacy are likewise recognized and protected in our laws.
The Civil Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes as
actionable torts several acts by a person of meddling and prying into the privacy
of another. 35 It also holds a public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and
the Intellectual Property Code. 43 The Rules of Court on privileged
communication likewise recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens and foreigners with the facility
to conveniently transact business with basic service and social security providers
and other government instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations by persons seeking
basic services. It is debatable whether these interests are compelling enough to
warrant the issuance of A.O. No. 308. But what is not arguable is the broadness,
the vagueness, the overbreadth of A.O. No. 308 which if implemented will put
our people's right to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference number to
establish a linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the application of statistical
methods to biological facts; a mathematical analysis of biological data." 45 The
term "biometrics" has now evolved into a broad category of technologies which
provide precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics. 46 A physiological
characteristic is a relatively stable physical characteristic such as a fingerprint,
retinal scan, hand geometry or facial features. A behavioral characteristic is
influenced by the individual's personality and includes voice print, signature and
keystroke. 47 Most biometric identification systems use a card or personal
identification number (PIN) for initial identification. The biometric measurement is
used to verify that the individual holding the card or entering the PIN is the
legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in computer
data banks 49 and becomes a means of identifying an individual using a service.
This technology requires one's fingertip to be scanned every time service or
access is provided. 50 Another method is the retinal scan. Retinal scan
technology employs optical technology to map the capillary pattern of the retina
of the eye. This technology produces a unique print similar to a finger
print. 51 Another biometric method is known as the "artificial nose." This device
chemically analyzes the unique combination of substances excreted from the
skin of people. 52 The latest on the list of biometric achievements is
the thermogram. Scientists have found that by taking pictures of a face using
infrared cameras, a unique heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all contribute to the individual's
personal "heat signature." 53
In the last few decades, technology has progressed at a galloping rate.
Some science fictions are now science facts. Today, biometrics is no longer
limited to the use of fingerprint to identify an individual. It is a new science that
uses various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state what
specific biological characteristics and what particular biometrics technology shall
be used to identify people who will seek its coverage. Considering the banquet of
options available to the implementors of A.O. No. 308, the fear that it threatens
the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show
that it does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the "generation
of population data for development planning." 54 This is an admission that the
PRN will not be used solely for identification but for the generation of other data
with remote relation to the avowed purposes of A.O. No. 308. Clearly, the
indefiniteness of A.O. No. 308 can give the government the roving authority to
store and retrieve information for a purpose other than the identification of the
individual through his PRN .
The potential for misuse of the data to be gathered under A.O. No. 308
cannot be underplayed as the dissenters do. Pursuant to said administrative
order, an individual must present his PRN everytime he deals with a government
agency to avail of basic services and security. His transactions with the
government agency will necessarily be recorded — whether it be in the computer
or in the documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc. The more frequent
the use of the PRN, the better the chance of building a huge and formidable
information base through the electronic linkage of the files. 55 The data may be
gathered for gainful and useful government purposes; but the existence of this
vast reservoir of personal information constitutes a covert invitation to misuse, a
temptation that may be too great for some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to
the name, address and other basic personal information about the
individual. 57 Even that hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell us in clear and
categorical terms how these information gathered shall be handled. It does not
provide who shall control and access the data, under what circumstances and for
what purpose. These factors are essential to safeguard the privacy and guaranty
the integrity of the information. 58 Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no controls to
guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear of
sanction or penalty, can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only be
processed for unequivocally specified purposes. 60 The lack of proper safeguards
in this regard of A.O. No. 308 may interfere with the individual's liberty of abode
and travel by enabling authorities to track down his movement; it may also
enable unscrupulous persons to access confidential information and circumvent
the right against self-incrimination; it may pave the way for "fishing expeditions"
by government authorities and evade the right against unreasonable searches
and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics
and computer technology are accentuated when we consider that the individual
lacks control over what can be read or placed on his ID, much less verify the
correctness of the data encoded. 62 They threaten the very abuses that the Bill of
Rights seeks to prevent. 63
The ability of a sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an individual and transmit it over a
national network is one of the most graphic threats of the computer
revolution. 64 The computer is capable of producing a comprehensive dossier on
individuals out of information given at different times and for varied purposes. 65 It
can continue adding to the stored data and keeping the information up to date.
Retrieval of stored data is simple. When information of a privileged character
finds its way into the computer, it can be extracted together with other data on
the subject. 66 Once extracted, the information is putty in the hands of any
person. The end of privacy begins. cdphil

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The Court
will not be true to its role as the ultimate guardian of the people's liberty if it would
not immediately smother the sparks that endanger their rights but would rather
wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of privacy; and (2) whether
this expectation is one that society recognizes as reasonable. 67 The factual
circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical surroundings
and practices of a particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer technology in A.O. No.
308 does not assure the individual of a reasonable expectation of privacy. 70 As
technology advances, the level of reasonably expected privacy decreases. 71 The
measure of protection granted by the reasonable expectation diminishes as
relevant technology becomes more widely accepted. 72 The security of the
computer data file depends not only on the physical inaccessibility of the file but
also on the advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a minimum standard for a
reasonable expectation of privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this
fatal defect. Rules and regulations merely implement the policy of the law or
order. On its face, A.O. No. 308 gives the IACC virtually unfettered discretion to
determine the metes and bounds of the ID System.
Nor do our present laws provide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act No. 591 penalizes the disclosure by
any person of data furnished by the individual to the NSO with imprisonment and
fine. 73 Republic Act No. 1161 prohibits public disclosure of SSS employment
records and reports. 74 These laws, however, apply to records and data with the
NSO and the SSS. It is not clear whether they may be applied to data with the
other government agencies forming part of the National ID System. The need to
clarify the penal aspect of A.O. No. 308 is another reason why its enactment
should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment
of the right of privacy by using the rational relationship test. 75 He stressed that
the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development
planning. He concludes that these purposes justify the incursions into the right to
privacy for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld
the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a
valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his sources
of income and expenses, did not infringe on the individual's right to privacy. The
law was enacted to promote morality in public administration by curtailing and
minimizing the opportunities for official corruption and maintaining a standard of
honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A.
3019 is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. In the case at
bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not narrowly drawn. And we now hold that
when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It will
not do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to prove that
their act is not irrational for a basic right can be diminished, if not defeated, even
when the government does not act irrationally. They must satisfactorily show the
presence of compelling state interests and that the law, rule, or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to
prevent authoritarianism. In case of doubt, the least we can do is to lean towards
the stance that will not put in danger the rights protected by the Constitution.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line.
In Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of the
names and addresses of all persons who obtained certain drugs pursuant to a
doctor's prescription. The New York State Controlled Substances Act of 1972
required physicians to identify patients obtaining prescription drugs enumerated
in the statute, i.e., drugs with a recognized medical use but with a potential for
abuse, so that the names and addresses of the patients can be recorded in a
centralized computer file of the State Department of Health. The plaintiffs, who
were patients and doctors, claimed that some people might decline necessary
medication because of their fear that the computerized data may be readily
available and open to public disclosure; and that once disclosed, it may
stigmatize them as drug addicts. 80 The plaintiffs alleged that the statute invaded
a constitutionally protected zone of privacy, i.e, the individual interest in avoiding
disclosure of personal matters, and the interest in independence in making
certain kinds of important decisions. The U.S. Supreme Court held that while an
individual's interest in avoiding disclosure of personal matters is an aspect of the
right to privacy, the statute did not pose a grievous threat to establish a
constitutional violation. The Court found that the statute was necessary to aid in
the enforcement of laws designed to minimize the misuse of dangerous
drugs. The patient-identification requirement was a product of an orderly and
rational legislative decision made upon recommendation by a specially appointed
commission which held extensive hearings on the matter. Moreover, the statute
was narrowly drawn and contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and requirements for the
gathering, storage and retrieval of the information. It enumerated who were
authorized to access the data. It also prohibited public disclosure of the data by
imposing penalties for its violation. In view of these safeguards, the infringement
of the patients' right to privacy was justified by a valid exercise of police power.
As we discussed above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the
Court is not per se against the use of computers to accumulate, store, process,
retrieve and transmit data to improve our bureaucracy. Computers work wonders
to achieve the efficiency which both government and private industry seek. Many
information systems in different countries make use of the computer to facilitate
important social objectives, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance programs,
improvement of telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer could help good
administration by making accurate and comprehensive information for those who
have to frame policy and make key decisions. 82 The benefits of the computer
has revolutionized information technology. It developed the internet, 83 introduced
the concept of cyberspace 84 and the information superhighway where the
individual, armed only with his personal computer, may surf and search all kinds
and classes of information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does
not bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused 85 and a
compelling interest justify such intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades
individual privacy will be subjected by this Court to strict scrutiny. The reason for
this stance was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea
that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive
control of the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly distinguishing it
from the public sector, which the state can control. Protection of this
private sector — protection, in other words, of the dignity and integrity of
the individual — has become increasingly important as modern society
has developed. All the forces of a technological age — industrialization,
 urbanization, and organization — operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the capacity to maintain
and support this enclave of private life marks the difference between a
democratic and a totalitarian society." 87
IV
The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources — governments,
journalists, employers, social scientists, etc. 88 In the case at bar, the threat
comes from the executive branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the indifferent will fail to perceive
the danger that A.O. No. 308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It is timely to take note of the
well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone
will live burdened by an unerasable record of his past and his limitations. In a
way, the threat is that because of its record-keeping, the society will have lost its
benign capacity to forget." 89 Oblivious to this counsel, the dissents still say we
should not be too quick in labelling the right to privacy as a fundamental right. We
close with the statement that the right to privacy was not engraved in
our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No.
308 entitled "Adoption of a National Computerized Identification Reference
System" declared null and void for being unconstitutional.
SO ORDERED.
||| (Ople v. Torres, G.R. No. 127685, [July 23, 1998], 354 PHIL 948-1015)

Disini vs. Secretary of Justice [G.R. No. 203335, February 11, 2014]

[G.R. No. 203335. February 18, 2014.]

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY

P. MEDINA, JANETTE TORAL and ERNESTO SONIDO,
JR., petitioners, vs. THE SECRETARY OF JUSTICE,
THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, respondents.

[G.R. No. 203299. February 18, 2014.]

LOUIS "BAROK" C. BIRAOGO, petitioner, vs. NATIONAL

BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, respondents.

[G.R. No. 203306. February 18, 2014.]

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG

MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID,
TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET
AL., petitioners, vs. OFFICE OF THE PRESIDENT, represented
by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and
HOUSE OF REPRESENTATIVES, respondents.

[G.R. No. 203359. February 18, 2014.]

SENATOR TEOFISTO DL GUINGONA

III, petitioner, vs. EXECUTIVE SECRETARY,
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, and DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, respondents.

[G.R. No. 203378. February 18, 2014.]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA

ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, petitioners, vs. THE
EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET
AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION,
THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION
AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, respondents.

[G.R. No. 203391. February 18, 2014.]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,

VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., petitioners, vs. PAQUITO N. OCHOA, JR., in his capacity
as Executive Secretary and alter-ego of President Benigno
Simeon Aquino III, LEILA DE LIMA in her capacity
as Secretary of Justice, respondents.

[G.R. No. 203407. February 18, 2014.]

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL

RENATO M. REYES, JR., National Artist BIENVENIDO L.
LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo
Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, petitioners, vs. BENIGNO SIMEON C. AQUINO III,
President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE
PHILIPPINES, represented by SENATE PRESIDENT JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented
by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME,
Chief of the Philippine National Police, MANUEL A. ROXAS
II, Secretary of the Department of the Interior and Local
Government, respondents.
 [G.R. No. 203440. February 18, 2014.]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA,

AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN
(all of the Ateneo Human Rights
Center), petitioners, vs. HONORABLE PAQUITO OCHOA in his
capacity as Executive Secretary, HONORABLE LEILA DE LIMA
in her capacity as Secretary of Justice, HONORABLE MANUEL
ROXAS in his capacity as Secretary of the Department of the
Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National
Bureau of Investigation (all of the Executive
Department of Government), respondents.

[G.R. No. 203453. February 18, 2014.]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES

(NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR
MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS,
JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, petitioners, vs. THE EXECUTIVE SECRETARY,
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF BUDGET AND MANAGEMENT, THE
DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL
POLICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO.
10175, respondents.

[G.R. No. 203454. February 18, 2014.]

PAUL CORNELIUS T. CASTILLO & RYAN D.

ANDRES, petitioners, vs. THE HON. SECRETARY OF JUSTICE,
THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, respondents.

[G.R. No. 203469. February 18, 2014.]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN

NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D.
ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD
A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P.
RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC.
PRESIDENT RUBEN B. LICERA, JR.; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E.
RAHON, petitioners, vs. HIS EXCELLENCY BENIGNO S.
AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by
HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as
Speaker of the House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary; HON.
LEILA M. DE LIMA, in her capacity as Secretary of Justice;
HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in
his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, respondents.

[G.R. No. 203501. February 18, 2014.]

PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. HIS

EXCELLENCY BENIGNO S. AQUINO III, in his official capacity
as President of the Republic of the Philippines; HON.
PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official
capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director,
Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as
Director of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National
Police, respondents.

[G.R. No. 203509. February 18, 2014.]

BAYAN MUNA REPRESENTATIVE NERI J.

COLMENARES, petitioner, vs. THE
EXECUTIVE SECRETARY PAQUITO OCHOA, JR., respondent.

[G.R. No. 203515. February 18, 2014.]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.

represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal
capacity, petitioner, vs. OFFICE OF THE PRESIDENT, PRES.
BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET
AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, respondents.

[G.R. No. 203518. February 18, 2014.]

PHILIPPINE INTERNET FREEDOM ALLIANCE,

composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco, PARTIDO
LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW
B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA,
ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG,
 ANA ALEXANDRA C. CASTRO, petitioners, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE
EXECUTIVE DIRECTOR OF THE INFORMATION
TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE
NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, respondents.

DECISION

ABAD, J :p

These consolidated petitions seek to declare several

provisions of Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012,
unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system that
links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information
that he needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos,
for the general public or for special audiences like associates, classmates, or
friends and read postings from them; SEcTHA

3. Advertise and promote goods or services and make purchases and

payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies, public
utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail
address or telephone.
This is cyberspace, a system that accommodates millions and
billions of simultaneous and ongoing individual accesses to and uses of the
internet. The cyberspace is a boon to the need of the current generation for
greater information and facility of communication. But all is not well with the
system since it could not filter out a number of persons of ill will who would want
to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or
bully the latter by posting defamatory statements against him that people can
read.
And because linking with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace for committing theft by
hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography
guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and contain
and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or highly
useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer systems, networks,
programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence
the Cybercrime Prevention Act. SHCaEA

But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their constitutional
rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent
hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases,
on February 5, 2013 the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until
further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the
cybercrime law that regard certain acts as crimes and impose penalties for their
commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
a. Section 4 (a) (1) on Illegal Access;
 b. Section 4 (a) (3) on Data Interference;
c. Section 4 (a) (6) on Cyber-squatting;
d. Section 4 (b) (3) on Identity Theft; IASCTD

e. Section 4 (c) (1) on Cybersex;

f. Section 4 (c) (2) on Child Pornography;
g. Section 4 (c) (3) on Unsolicited Commercial Communications;
h. Section 4 (c) (4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal
Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer
Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26 (a) on CICC's Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353,
354, 361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4 (a) (1)
Section 4 (a) (1) provides: ICTcDA

Section 4. Cybercrime Offenses. — The following acts constitute

the offense of cybercrime punishable under this Act:
 (a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
(1) Illegal Access. — The access to the whole or any part of a
computer system without right.
Petitioners contend that Section 4 (a) (1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the people
and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct, 1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a
suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest
and that it is the least restrictive means to protect such interest. 2 Later, the strict
scrutiny standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights, as
expansion from its earlier applications to equal protection. 3 CAIaDT

In the cases before it, the Court finds nothing in Section 4 (a) (1) that calls
for the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act —
accessing the computer system of another without right. It is a universally
condemned conduct. 4
Petitioners of course fear that this section will jeopardize the
work of ethical hackers, professionals who employ tools and techniques used by
criminal hackers but would neither damage the target systems nor steal
information. Ethical hackers evaluate the target system's security and report back
to the owners the vulnerabilities they found in it and give instructions for how
these can be remedied. Ethical hackers are the equivalent of independent
auditors who come into an organization to verify its bookkeeping records. 5
Besides, a client's engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and the
systems to be tested. This is referred to as the "get out of jail free card." 6 Since
the ethical hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4 (a) (1).
Section 4 (a) (3) of the Cybercrime Law
Section 4 (a) (3) provides:
Section 4. Cybercrime Offenses. — The following acts constitute
the offense of cybercrime punishable under this Act:
 (a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxx xxx xxx
(3) Data Interference. — The intentional or reckless alteration,
damaging, deletion or deterioration of computer data, electronic
document, or electronic data message, without right, including the
introduction or transmission of viruses. DASCIc

Petitioners claim that Section 4 (a) (3) suffers from overbreadth in that,
while it seeks to discourage data interference, it intrudes into the
area of protected speech and expression, creating a chilling and deterrent effect
on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms. 7 But Section 4 (a) (3) does not encroach on these freedoms at all. It
simply punishes what essentially is a form of vandalism, 8 the act of willfully
destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act
has no connection to guaranteed freedoms. There is no freedom to destroy other
people's computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect 9 or the fear of possible prosecution that hangs on the
heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill
such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct. 10 Here, the chilling effect that results in paralysis is an
illusion since Section 4 (a) (3) clearly describes the evil that it seeks to punish
and creates no tendency to intimidate the free exercise of one's constitutional
rights.
Besides, the overbreadth challenge places on petitioners the heavy
burden of proving that under no set of circumstances will Section 4 (a) (3) be
valid. 11 Petitioner has failed to discharge this burden.
Section 4 (a) (6) of the Cybercrime Law
Section 4 (a) (6) provides: CHTcSE

Section 4. Cybercrime Offenses. — The following acts constitute

the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxx xxx xxx
 (6) Cyber-squatting. — The acquisition of domain name over the
internet in bad faith to profit, mislead, destroy the reputation, and
deprive others from registering the same, if such a domain name
is:
(i) Similar, identical, or confusingly similar to an
existing trademark registered with the appropriate
government agency at the time of the domain
name registration;
(ii) Identical or in any way similar with the
name of a person other than the registrant, in
case of a personal name; and CEcaTH

(iii) Acquired without right or with intellectual

property interests in it.
Petitioners claim that Section 4 (a) (6) or cyber-squatting violates the equal
protection clause 12 in that, not being narrowly tailored, it will cause a user using
his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example,
supposing there exists a well known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another
who registers the name because it happens to be his real name. Petitioners
claim that, considering the substantial distinction between the two, the law should
recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil purpose
for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead,
destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the
constitutionality of Section 4 (a) (6) on ground of denial of equal protection is
baseless.
Section 4 (b) (3) of the Cybercrime Law
Section 4 (b) (3) provides:
Section 4. Cybercrime Offenses. — The following acts constitute
the offense of cybercrime punishable under this Act:
xxx xxx xxx
b) Computer-related Offenses: CTSDAI

xxx xxx xxx

 (3) Computer-related Identity Theft. — The intentional acquisition,
use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether
natural or juridical, without right: Provided: that if no damage has
yet been caused, the penalty imposable shall be one (1) degree
lower.
Petitioners claim that Section 4 (b) (3) violates the constitutional rights to
due process and to privacy and correspondence, and transgresses the
freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures. 13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy
exists independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as
the "Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless excused by
law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that
the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal
Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has
the right to the protection of the law against such interference or
attacks."AaECSH

Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches 16 and seizures, which is the basis of the right to
be let alone, and (b) the right to privacy of communication and
correspondence. 17
In assessing the challenge that the State has impermissibly intruded into
these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion. 18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and
date of birth, the name of his spouse if any, his occupation, and similar
data. 19 The law punishes those who acquire or use such identifying information
without right, implicitly to cause damage. Petitioners simply fail to show how
government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not intrude
into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire another's personal data.
Further, petitioners fear that Section 4 (b) (3) violates the freedom of the
press in that journalists would be hindered from accessing the unrestricted user
account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended
for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed from
the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator. 20 As such,
the press, whether in quest of news reporting or social investigation, has nothing
to fear since a special circumstance is present to negate intent to gain which is
required by this Section.
Section 4 (c) (1) of the Cybercrime Law
Section 4 (c) (1) provides:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses:
(1) Cybersex. — The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a
computer system, for favor or consideration.
EHTISC

Petitioners claim that the above violates the freedom of expression

clause of the Constitution. 21 They express fear that private
communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be
regarded as crimes when done "for favor" in cyberspace. In common usage, the
term "favor" includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn conspicuously." 22 This
meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this
section of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing . . .
between and among two private persons . . . although that may be a
form of obscenity to some." 23 The understanding of those who drew up the
cybercrime law is that the element of "engaging in a business" is necessary to
constitute the illegal cybersex. 24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam. 25
The subject of Section 4 (c) (1) — lascivious exhibition of sexual organs or
sexual activity — is not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in Persons
Act of 2003 penalizes those who "maintain or hire a person to engage in
prostitution or pornography." 26 The law defines prostitution as any act,
transaction, scheme, or design involving the use of a person by another, for
sexual intercourse or lascivious conduct in exchange for money, profit, or any
other consideration. 27
The case of Nogales v. People 28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography. 29 The Court weighed the property
rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in
sexual acts privately through Internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and
the exploitation of women.
In any event, consenting adults are protected by the
wealth of jurisprudence delineating the bounds of obscenity. 30 The Court will not
declare Section 4 (c) (1) unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business of maintaining,
controlling, or operating, directly or indirectly, the lascivious exhibition of sexual
organs or sexual activity with the aid of a computer system as Congress has
intended.
Section 4 (c) (2) of the Cybercrime Law
Section 4 (c) (2) provides:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
cTCaEA
 xxx xxx xxx
(c) Content-related Offenses:
xxx xxx xxx
(2) Child Pornography. — The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer
system: Provided, That the penalty to be imposed shall be
(1) one degree higher than that provided for in Republic
Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 2009 31 (ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system.
Actually, ACPA's definition of child pornography already embraces the
use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the
crime is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty. 32 The potential for uncontrolled proliferation of a particular
piece of child pornography when uploaded in the cyberspace is incalculable. AacCHD

Petitioners point out that the provision of ACPA that makes it unlawful for
any person to "produce, direct, manufacture or create any form of child
pornography" 33 clearly relates to the prosecution of persons who aid and abet
the core offenses that ACPA seeks to punish. 34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-
old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his
ideas on Twitter, anyone who replies to the tweet could be considered aiding and
abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it
will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4 (c) (2) is not successfully challenged.
Section 4 (c) (3) of the Cybercrime Law
Section 4 (c) (3) provides:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
 (c) Content-related Offenses:
xxx xxx xxx
(3) Unsolicited Commercial Communications. — The
transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or CaASIc

(ii) The primary intent of the communication is for service and/or

administrative announcements from the sender to its existing
users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication
contains a simple, valid, and reliable way for the recipient
to reject receipt of further commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic communication does
not purposely disguise the source of the electronic
message; and
(cc) The commercial electronic communication does
not purposely include misleading information in any
part of the message in order to induce the recipients to
read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the same
sentence or comment was said to be making a "spam." The term referred to a
Monty Python's Flying Circus scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options from a menu. 35 SEACTH

The Government, represented by the Solicitor General, points out that

unsolicited commercial communications or spams are a nuisance that wastes the
storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner's peaceful
enjoyment of his property. Transmitting spams amounts to trespass to one's
privacy since the person sending out spams enters the recipient's domain without
prior permission. The OSG contends that commercial speech enjoys less
protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before the
arrival of the age of computers, have already been receiving such unsolicited ads
by mail. These have never been outlawed as nuisance since people might have
interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients
always have the option to delete or not to read them. cSCTEH

To prohibit the transmission of unsolicited ads would deny a person the

right to read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection. 36 The State cannot
rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate
forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4 (c) (4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions
on libel as well as Section 4 (c) (4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to
blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory
imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings,
or of any other act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel
committed by means of writing, printing, lithography, engraving, radio,
phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its
minimum and medium periods or a fine ranging from 200 to 6,000 pesos,
 or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus Section 4
(c) (4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
xxx xxx xxx
(c) Content-related Offenses: EaDATc

xxx xxx xxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which may
be devised in the future.
Petitioners lament that libel provisions of the penal code 37 and, in effect,
the libel provisions of the cybercrime law carry with them the
requirement of "presumed malice" even when the latest jurisprudence already
replaces it with the higher standard of "actual malice" as a basis for
conviction. 38 Petitioners argue that inferring "presumed malice" from the
accused's defamatory statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People 39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact 41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not. 42 The reckless disregard standard used
here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice. 43
The prosecution bears the burden of proving the presence of actual malice
in instances where such element is required to establish guilt. The
defense of absence of actual malice, even when the statement turns out to be
false, is available where the offended party is a public official or a public figure,
as in the cases of Vasquez (a barangay official) and Borjal (the Executive
Director, First National Conference on Land Transportation). Since the penal
code and implicitly, the cybercrime law, mainly target libel against private
persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the
offended party is a public figure. Society's interest and the maintenance of good
government demand a full discussion of public affairs. 44 CSAcTa

Parenthetically, the Court cannot accept the proposition that its ruling
in Fermin disregarded the higher standard of actual malice or malice in fact when
it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in
that case. Thus:
It can be gleaned from her testimony that petitioner had the
motive to make defamatory imputations against complainants. Thus,
petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in
law, the article being malicious in itself, but there was also malice in
fact, as there was motive to talk ill against complainants during the
electoral campaign. (Emphasis ours) SIaHTD

Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a
fine of P6,000.00.
But, where the offended party is a private individual, the prosecution need
not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed statement. 45 For
his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true. 46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the country's obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines, 47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws
should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens, Article
361 recognizes truth as a defense but under the condition that the accused has
been prompted in making the statement by good motives and for justifiable ends.
Thus:
 Art. 361. Proof of the truth. — In every criminal prosecution for
libel, the truth may be given in evidence to the court and if it appears that
the matter charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the defendants
shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation shall
have been made against Government employees with respect to facts
related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation
made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be crafted
with care to ensure that they do not stifle freedom of expression. 48 Indeed, the
ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be
provided by law. 49
The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has an obligation to
protect private individuals from defamation. Indeed, cyberlibel is actually not a
new crime since Article 353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4 (c) (4) above merely affirms that online
defamation constitutes "similar means" for committing libel.
But the Court's acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings with it
certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from
that of print.
DaScCH

The internet is characterized as encouraging a freewheeling, anything-

goes writing style. 50 In a sense, they are a world apart in
terms of quickness of the reader's reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the
line to other internet users. Whether these reactions to defamatory statement
posted on the internet constitute aiding and abetting libel, acts that Section
5 of the cybercrime law punishes, is another matter that the Court will deal with
next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
 Sec. 5. Other Offenses. — The following acts shall also
constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. — Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who
willfully attempts to commit any of the offenses enumerated in this Act
shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the commission or attempts to
commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current
body of jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves of the
services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the
innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law. 51 The
legislature is not required to define every single word contained in the laws they
craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
forest, 52 smuggling merchandise into the country, 53 or interfering in the peaceful
picketing of laborers, 54 his action is essentially physical and so is susceptible to
easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings
online threatens the heretofore popular and unchallenged dogmas of cyberspace
use. ScaHDT

According to the 2011 Southeast Asia Digital Consumer Report,

33% of Filipinos have accessed the internet within a year, translating to about 31
million users. 55 Based on a recent survey, the Philippines ranks 6th in the top 10
most engaged countries for social networking. 56 Social networking sites build
social relations among people who, for example, share interests, activities,
backgrounds, or real-life connections. 57
Two of the most popular of these sites are Facebook and Twitter.
As of late 2012, 1.2 billion people with shared interests use Facebook to get in
touch. 58 Users register at this site, create a personal profile or an open
book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile. 59 A user can
post a statement, a photo, or a video on Facebook, which can be made visible to
anyone, depending on the user's privacy settings. acIHDA

If the post is made available to the public, meaning to everyone and not
only to his friends, anyone on Facebook can react to the posting, clicking
any of several buttons of preferences on the program's screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible
to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read short text-based
messages of up to 140 characters. These are known as "Tweets." Microblogging
is the practice of posting small pieces of digital content — which could be in the
form of text, pictures, links, short videos, or other media — on the internet.
Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular user's posts, enabling them to read the same, and "Following," those
whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or
to the general public. If a post is available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just reposting or republishing another
person's tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet cafe that may
have provided the computer used for posting the blog; e) the person who makes
a favorable comment on the blog; and f) the person who posts a link to the blog
site. 60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com
(blog service provider). She needs the internet to access her blog so she
subscribes to Sun Broadband (Internet Service Provider). THEDcS

One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of Maria's
friends who sees this post, comments online, "Yes, this is so true! They are so
immoral." Maria's original post is then multiplied by her friends and the latter's
friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and
so shares the link to this apparently defamatory blog on her Twitter account.
Nena's "Followers" then "Retweet" the link to that blog site.
 Pamela, a Twitter user, stumbles upon a random person's
"Retweet" of Nena's original tweet and posts this on her Facebook account.
Immediately, Pamela's Facebook Friends start Liking and making Comments on
the assailed posting. A lot of them even press the Share button, resulting in the
further spread of the original posting into tens, hundreds, thousands, and greater
postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the office
bulletin board a small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could
not be libel since he did not author the poster. If Arthur, passing by and noticing
the poster, writes on it, "Correct!," would that be libel? No, for he merely
expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those
who pressed Like, Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or haphazardly of their response to the
original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or
"Followers" in the criminal charge to be filed in court, who will make a choice as
to who should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their
constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v.
American Civil Liberties Union, 61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of "obscene or
indecent" communications to any recipient under 18 years of age; and (2) the
knowing use of an interactive computer service to send to a specific person or
persons under 18 years of age or to display in a manner available to a person
under 18 years of age communications that, in context, depict or describe, in
terms "patently offensive" as measured by contemporary community standards,
sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment's guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled: SIAEHC

The vagueness of the Communications Decency Act of 1996

(CDA), 47 U.S.C.S. §223, is a matter of special concern for two
reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I
concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and
stigma of a criminal conviction, the CDA threatens violators with
penalties including up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers to remain
silent rather than communicate even arguably unlawful words,
ideas, and images. As a practical matter, this increased deterrent
effect, coupled with the risk of discriminatory enforcement of vague
regulations, poses greater U.S. Const. amend. I concerns than those
implicated by certain civil regulations.
xxx xxx xxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S.
§ 223, presents a great threat of censoring speech that, in fact,
falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers
whose messages would be entitled to constitutional protection.
That danger provides further reason for insisting that the statute not be
overly broad. The CDA's burden on protected speech cannot be
justified if it could be avoided by a more carefully drafted statute.
(Emphasis ours)
Libel in the cyberspace can of course stain a person's image with just one
click of the mouse. Scurrilous statements can spread and travel fast across the
globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from
mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a
person's reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected freedoms. 62 ICTDEa

If such means are adopted, self-inhibition borne of fear of what sinister

predicaments await internet users will suppress otherwise robust
discussion of public issues. Democracy will be threatened and with it, all liberties.
Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory
enforcement. 63 The terms "aiding or abetting" constitute broad sweep that
generates chilling effect on those who express themselves through cyberspace
posts, comments, and other messages. 64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio T.
Carpio explained in his dissent in Romualdez v. Commission on Elections, 65 "we
must view these statements of the Court on the inapplicability of the overbreadth
and vagueness doctrines to penal statutes as appropriate only insofar as these
doctrines are used to mount 'facial' challenges to penal statutes not involving free
speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground — absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he
asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against
third-party standing. 66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he
claims no violation of his own rights under the assailed statute where it involves
free speech on grounds of overbreadth or vagueness of the statute. The rationale
for this exception is to counter the "chilling effect" on protected speech that
comes from statutes violating free speech. A person who does not know whether
his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence. 67
As already stated, the cyberspace is an incomparable, pervasive
medium of communication. It is inevitable that any government
threat of punishment regarding certain uses of the medium creates a chilling
effect on the constitutionally-protected freedom of expression of the great
masses that use it. In this case, the particularly complex web of interaction on
social media websites would give law enforcers such latitude that they could
arbitrarily or selectively enforce the law.
HCTDIS

Who is to decide when to prosecute persons who boost the visibility of a

posting on the internet by liking it? Netizens are not given "fair notice" or warning
as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizen's comment aided and
abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting
but creates an altogether new defamatory story against Armand like "He beats
his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly
punish authors of defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the internet, it will destroy
relationships and, under certain circumstances, will generate enmity and tension
between social or economic groups, races, or religions, exacerbating existing
tension in their relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child pornography,"
does this make Google and its users ciders and abettors in the
commission of child pornography crimes? 68 Byars highlights a feature in the
American law on child pornography that the Cybercrimes law lacks — the
exemption of a provider or notably a plain user of interactive computer service
from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be obscene .
. . whether or not such material is constitutionally protected. 69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this make him a
willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is
forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information. 70 As the source of this information,
is the user aiding the distribution of this communication? The legislature needs to
address this clearly to relieve users of annoying fear of possible criminal
prosecution.
Section 5 with respect to Section 4 (c) (4) is unconstitutional. Its
vagueness raises apprehension on the part of internet users because of its
obvious chilling effect on the freedom of expression, especially since the
crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel
are not punishable unless consummated. 71 In the absence of legislation tracing
the interaction of netizens and their level of responsibility such as in other
countries, Section 5, in relation to Section 4 (c) (4) on Libel, Section 4 (c) (3) on
Unsolicited Commercial Communications, and Section 4 (c) (2) on Child
Pornography, cannot stand scrutiny. EDISTc

But the crime of aiding or abetting the commission of cybercrimes under

Section 5 should be permitted to apply to Section 4 (a) (1) on Illegal Access,
Section 4 (a) (2) on Illegal Interception, Section 4 (a) (3) on Data Interference,
Section 4 (a) (4) on System Interference, Section 4 (a) (5) on Misuse of Devices,
Section 4 (a) (6) on Cyber-squatting, Section 4 (b) (1) on Computer-related
Forgery, Section 4 (b) (2) on Computer-related Fraud, Section 4 (b) (3) on
Computer-related Identity Theft, and Section 4 (c) (1) on Cybersex.
None of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all that is
necessary to illegally access another party's computer system but the security
employed by the system's lawful owner could frustrate his effort. Another hacker
may have gained access to usernames and passwords of others but fail to use
these because the system supervisor is alerted. 72 If Section 5 that punishes any
person who willfully attempts to commit this specific offense is not upheld, the
owner of the username and password could not file a complaint against him for
attempted hacking. But this is not right. The hacker should not be freed from
liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent. 73 While this may be true with respect to cybercrimes that
tend to sneak past the area of free expression, any attempt to commit the other
acts specified in Section 4 (a) (1), Section 4 (a) (2), Section 4 (a) (3), Section 4
(a) (4), Section 4 (a) (5), Section 4 (a) (6), Section 4 (b) (1), Section 4 (b) (2),
Section 4 (b) (3), and Section 4 (c) (1) as well as the actors aiding and abetting
the commission of such acts can be identified with some reasonable certainty
through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through and with
the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty
to be imposed shall be one (1) degree higher than that provided for by
 the Revised Penal Code, as amended, and special laws, as the case
may be. TcSAaH

Section 6 merely makes commission of existing crimes through the

Internet a qualifying circumstance. As the Solicitor General points out, there
exists a substantial distinction between crimes committed through the
use of information and communications technology and similar crimes committed
using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater harm.
The distinction, therefore, creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this
Act shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the
settled doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not bar
prosecution of the other although both offenses arise from the same fact, if each
crime involves some important act which is not an essential element of the
other. 74 With the exception of the crimes of online libel and online child
pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases. SCIAaT

Online libel is different. There should be no question that if the published

material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two offenses,
one a violation of Article 353 of the Revised Penal Code and the other a
violation of Section 4 (c) (4) of R.A. 10175 involve essentially the same elements
and are in fact one and the same offense. Indeed, the OSG itself claims that
online libel under Section 4 (c) (4) is not a new crime but is one already punished
under Article 353. Section 4 (c) (4) merely establishes the computer system as
another means of publication. 75 Charging the offender under both laws would be
a blatant violation of the proscription against double jeopardy. 76
The same is true with child pornography committed online. Section 4 (c)
(2) merely expands the ACPA's scope so as to include identical activities in
cyberspace. As previously discussed, ACPA's definition of child pornography in
fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4 (c) (2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition
against double jeopardy.
 Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two
hundred thousand pesos (PhP200,000.00) up to a maximum amount
commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)
(5) shall be punished with imprisonment of prision mayor or a fine of not
more than Five hundred thousand pesos (PhP500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at least Five
hundred thousand pesos (PhP500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed. aESIDH

Any person found guilty of any of the punishable acts enumerated

in Section 4(c)(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred
thousand pesos (PhP200,000.00) but not exceeding One million pesos
(PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(2) of this Act shall be punished with the penalties as
enumerated in Republic Act No. 9775 or the "Anti-Child Pornography
Act of 2009:" Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(3) shall be punished with imprisonment of arresto
mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not
exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 5 shall be punished with imprisonment one (1) degree lower
than that of the prescribed penalty for the offense or a fine of at least
One hundred thousand pesos (PhP100,000.00) but not exceeding Five
hundred thousand pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4 (a)
on Offenses Against the Confidentiality, Integrity and Availability of Computer
Data and Systems; 4 (b) on Computer-related Offenses; 4 (a) (5) on
Misuse of Devices; when the crime punishable under 4 (a) is committed against
critical infrastructure; 4 (c) (1) on Cybersex; 4 (c) (2) on Child Pornography; 4 (c)
(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
 The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine penalties
for offenses is not diluted or improperly wielded simply because at some prior
time the act or omission was but an element of another offense or might just
have been connected with another crime. 77 Judges and magistrates can only
interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department. The courts should not encroach on this
prerogative of the lawmaking body. 78
Section 12 of the Cybercrime Law
Section 12 provides: cACDaH

Sec. 12. Real-Time Collection of Traffic Data. — Law

enforcement authorities, with due cause, shall be authorized to collect or
record by technical or electronic means traffic data in real-time
associated with specified communications transmitted by means of a
computer system.
Traffic data refer only to the communication's origin, destination,
route, time, date, size, duration, or type of underlying service, but not
content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-stated
information.
The court warrant required under this section shall only be
issued or granted upon written application and the examination under
oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that
any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is
essential to the conviction of any person for, or to the solution of, or to
the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to
collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where
digital messages come from, what kind they are, and where they are destined
need not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they
send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally considered
private but then only upon showing that such requirement has a rational relation
to the purpose of the law, 79 that there is a compelling State interest behind the
law, and that the provision itself is narrowly drawn. 80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the
State against constitutional guarantees. 81 DEICHc

Undoubtedly, the State has a compelling interest in enacting the

cybercrime law for there is a need to put order to the tremendous activities in
cyberspace for public good. 82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to combat
all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or
recording of traffic data is a part, aims to provide law enforcement authorities with
the power they need for spotting, preventing, and investigating crimes committed
in cyberspace. Crime-fighting is a state business. Indeed, as
Chief Justice Sereno points out, the Budapest Convention on Cybercrimes
requires signatory countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time, associated with specified
communications." 83 And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.
But is not evidence of yesterday's traffic data, like the scene of the crime
after it has been committed, adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right, 84 transmitting
viruses, 85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration; 86 and producing child pornography 87 could easily evade
detection and prosecution by simply moving the physical location of their
computers or laptops from day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet
connectors. Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can neither be located
nor identified. There are many ways the cyber criminals can quickly erase their
tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and a subsequent
recourse to court-issued search and seizure warrant that can succeed in ferreting
them out.
 Petitioners of course point out that the provisions of Section 12 are too
broad and do not provide ample safeguards against crossing legal boundaries
and invading the people's right to privacy. The concern is understandable.
Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain constitutional
guarantees work together to create zones of privacy wherein governmental
powers may not intrude, and that there exists an independent constitutional
right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms. 89
But that right is not unqualified. In Whalen v. Roe, 90 the United States
Supreme Court classified privacy into two categories: decisional privacy
and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational
privacy refers to the interest in avoiding disclosure of personal matters. It is the
latter right — the right to informational privacy — that those who oppose
government collection or recording of traffic data in real-time seek to protect.DECcAS

Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance and
intrusion. 91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate
expectation of privacy over a certain matter. The second is an objective test,
where his or her expectation of privacy must be one society is prepared to accept
as objectively reasonable. 92
Since the validity of the cybercrime law is being challenged, not in relation
to its application to a particular person or group, petitioners' challenge to Section
12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic
devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general public's point of view.
Without reasonable expectation of privacy, the right to it would have no basis in
fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the recipient
ICT user. For example, an ICT user who writes a text message intended for
another ICT user must furnish his service provider with his cellphone number and
the cellphone number of his recipient, accompanying the message sent. It is this
information that creates the traffic data. Transmitting communications is akin to
putting a letter in an envelope properly addressed, sealing it closed, and sending
it through the postal service. Those who post letters have no expectations
that no one will read the information appearing outside the envelope.
 Computer data — messages of all kinds — travel across the internet in
packets and in a way that may be likened to parcels of letters or things that are
sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the
packet originated, what kind of data is in the packet (SMS, voice call, video,
internet chat messages, email, online browsing data, etc.), where the packet is
going, and how the packet fits together with other packets. 93 The difference is
that traffic data sent through the internet at times across the ocean do not
disclose the actual names and addresses (residential or office) of the sender and
the recipient, only their coded internet protocol (IP) addresses. The packets
travel from one computer system to another where their contents are pieced back
together. Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
ACSaHc

For example, when one calls to speak to another through his cellphone,
the service provider's communication's system will put his voice message into
packets and send them to the other person's cellphone where they are refitted
together and heard. The latter's spoken reply is sent to the caller in the same
way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also
reveals the cellphone number to the person he calls. The other
ways of communicating electronically follow the same basic pattern.
In Smith v. Maryland, 94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the '70s must realize that they
necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that
phone numbers one dials should remain private, such expectation is not one that
society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over cyberspace except
through some service providers to whom they must submit certain traffic data
that are needed for a successful cyberspace communication. The
conveyance of this data takes them out of the private sphere, making the
expectation to privacy in regard to them an expectation that society is not
prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together, and
analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may
be able to determine a person's close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the
public may expect to be disclosed, and clearly falls within matters protected by
the right to privacy. But has the procedure that Section 12 of the law provides
been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to
collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in drafting
the law.ATcaEH

Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to hint at
the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence
to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable
commission of a particular crime. It just says, "with due cause," thus justifying a
general gathering of data. It is akin to the use of a general search warrant that
the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection
will be used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection should not
disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands
from looking into the identity of their sender or receiver and what the data
contains. This will unnecessarily expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those
"associated with specified communications." But this supposed limitation
is no limitation at all since, evidently, it is the law enforcement agencies that
would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing
whatever specified communication they want. This evidently threatens the
right of individuals to privacy.
 The Solicitor General points out that Section 12 needs to authorize
collection of traffic data "in real time" because it is not possible to get a court
warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer's determination of probable
cause that a crime has been committed, that there is no opportunity for getting a
warrant, and that unless the search is immediately carried out, the thing to be
searched stands to be removed. These preconditions are not provided in Section
12.cDTIAC

The Solicitor General is honest enough to admit that Section 12 provides

minimal protection to internet users and that the procedure envisioned by the law
could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track
cyberspace communications in real time and determine their sources and
destinations must be narrowly drawn to preclude abuses. 95
Petitioners also ask that the Court strike down Section 12 for being
violative of the void-for-vagueness doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government
and kindred institutions to monitor individuals and place them under surveillance
in ways that have previously been impractical or even impossible. "All the
forces of a technological age . . . operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support
this enclave of private life marks the difference between a democratic and a
totalitarian society." 96 The Court must ensure that laws seeking to take
advantage of these technologies be written with specificity and definiteness as to
ensure respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic
data and subscriber information relating to communication services
provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data
shall be similarly preserved for six (6) months from the
date of receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data preserved,
 transmitted or stored by a service provider is used as evidence in a
case, the mere furnishing to such service provider of the transmittal
document to the Office of the Prosecutor shall be deemed a notification
to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall
keep confidential the order and its compliance. DcCEHI

Petitioners in G.R. 203391 97 claim that Section 13 constitutes an undue

deprivation of the right to property. They liken the data preservation order that
law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents Internet users from
accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation to
indefinitely keep a copy of the same as they pass its system for the
benefit of users. By virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction
and those relating to content data for at least six months from receipt of the order
for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed
his computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that
service providers preserve on orders of law enforcement authorities are not
made inaccessible to users by reason of the issuance of such orders. The
process of preserving data will not unduly hamper the normal transmission or
use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement
authorities, upon securing a court warrant, shall issue an order requiring
any person or service provider to disclose or submit subscriber's
information, traffic data or relevant data in his/its possession or control
within seventy-two (72) hours from receipt of the order in relation to a
valid complaint officially docketed and assigned for investigation and the
disclosure is necessary and relevant for the purpose of investigation. ISaCTE

The process envisioned in Section 14 is being likened to the issuance of a

subpoena. Petitioners' objection is that the issuance of subpoenas is a judicial
function. But it is well-settled that the power to issue subpoenas is not exclusively
a judicial function. Executive agencies have the power to issue subpoena as an
adjunct of their investigatory powers. 98
Besides, what Section 14 envisions is merely the enforcement of a duly
issued court warrant, a function usually lodged in the hands of law enforcers to
enable them to carry out their executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search or seizure nor would it violate
the privacy of communications and correspondence. Disclosure can be made
only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. —
Where a search and seizure warrant is properly issued, the law
enforcement authorities shall likewise have the following powers and
duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
CHcESa

(a) To secure a computer system or a computer data storage

medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer
data storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable
the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time
to complete the examination of the computer data storage medium and
to make a return thereon but in no case for a period longer than thirty
(30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would ensure
the proper collection, preservation, and use of computer system or data that have
been seized by virtue of a court warrant. The exercise of these duties do not
pose any threat on the rights of the person from whom they were taken. Section
15 does not appear to supersede existing search and seizure rules but merely
supplements them. IcHTAa

Section 17 of the Cybercrime Law

Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon
expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall
immediately and completely destroy the computer data subject of a
preservation and examination.
Section 17 would have the computer data, previous subject of preservation
or examination, destroyed or deleted upon the lapse of the prescribed period.
The Solicitor General justifies this as necessary to clear up the service provider's
storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data
subject of previous preservation or examination violates the user's right against
deprivation of property without due process of law. But, as already stated, it is
unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he
wanted them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider for a
copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access
to computer data: aITECA

Sec. 19. Restricting or Blocking Access to Computer Data. —

When a computer data is prima facie found to be in violation of the
provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section
19 indeed violates the freedom and right mentioned.
Computer data 99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video recordings.
Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers
or authors may constitute personal property. Consequently, they are protected
from unreasonable searches and seizures, whether while stored in their personal
computers or in the service provider's systems. aEcADH

Section 2, Article III of the 1987 Constitution provides that the right to be
secure in one's papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further, it
states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and
places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a
case, Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But for
an executive officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all
rolled into one. 100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the
validity of restrictions on speech. Restraints on free speech are generally
evaluated on one of or a combination of three tests: the dangerous tendency
doctrine, the balancing of interest test, and the clear and present danger
rule. 101 Section 19, however, merely requires that the data to be blocked be
found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any
penal provision. It does not take into consideration any of the three tests
mentioned above. EHSIcT

The Court is therefore compelled to strike down Section 19 for being

violative of the constitutional guarantees to freedom of expression and
against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the
provisions of Chapter IV hereof specifically the orders from law
enforcement authorities shall be punished as a violation of Presidential
Decree No. 1829 with imprisonment of prision correccional in its
maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an
order issued by law enforcement authorities.
 Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative
finding of guilt, without regard to situations where non-compliance would be
reasonable or valid.
But since the non-compliance would be punished as a
violation of Presidential Decree (P.D.) 1829, 102 Section 20 necessarily
incorporates elements of the offense which are defined therein. If Congress had
intended for Section 20 to constitute an offense in and of itself, it would not have
had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum
period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be
imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation
and prosecution of criminal cases by committing any of the following
acts:
xxx xxx xxx
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt, during
which, as the Solicitor General assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26 (a) of the Cybercrime Law
Sections 24 and 26 (a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.
— There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the
Cybercrime Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy
coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.cEHSTC

Sec. 26. Powers and Functions. — The CICC shall have the
following powers and functions:
(a) To formulate a national cybersecurity plan and extend
immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team
(CERT); . . . .
Petitioners mainly contend that Congress invalidly delegated its power
when it gave the Cybercrime Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan without any sufficient standards
or parameters for it to follow.
In order to determine whether there is undue delegation of legislative
power, the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate,
the only thing he will have to do is to enforce it. The second test mandates
adequate guidelines or limitations in the law to determine the boundaries of the
delegate's authority and prevent the delegation from running riot. 103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to follow
when it provided a definition of cybersecurity.CEaDAc

Cybersecurity refers to the collection of tools, policies, risk management

approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and user's
assets. 104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the
policy of the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international
cooperation." 105 This policy is clearly adopted in the interest of law and order,
which has been considered as sufficient standard. 106 Hence, Sections 24 and 26
(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4 (c) (3) of Republic Act 10175 that penalizes
posting of unsolicited commercial communications;
b. Section 12 that authorizes the collection or
recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4 (a) (1) that penalizes accessing a computer
system without right;
b. Section 4 (a) (3) that penalizes data interference,
including transmission of viruses;
c. Section 4 (a) (6) that penalizes cyber-squatting or
acquiring domain name over the internet in bad faith to
the prejudice of others;
d. Section 4 (b) (3) that penalizes identity theft or the use or
misuse of identifying information belonging to another;
e. Section 4 (c) (1) that penalizes cybersex or the lascivious
exhibition of sexual organs or sexual activity for favor
or consideration;
f. Section 4 (c) (2) that penalizes the production of child
pornography;
g. Section 6 that imposes penalties one degree higher when
crimes defined under the Revised Penal Code are
committed with the use of information and
communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to
require service providers to preserve traffic data and
subscriber information as well as specified content
data for six months;
j. Section 14 that authorizes the disclosure of computer data
under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and
examination of computer data under a court-issued
warrant;
l. Section 17 that authorizes the destruction of previously
preserved computer data after the expiration of the
prescribed holding periods; aATCDI

m. Section 20 that penalizes obstruction of justice in relation

to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation
and Coordinating Center (CICC);
o. Section 26 (a) that defines the CICC's Powers and
Functions; and
 p. Articles 353, 354, 361, and 362 of the Revised Penal
Code that penalizes libel.
Further, the Court DECLARES: aDHCEA

1. Section 4 (c) (4) that penalizes online libel

as VALID and CONSTITUTIONAL with respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with respect to others who simply receive
the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VALID and CONSTITUTIONAL only in relation to
Section 4 (a) (1) on Illegal Access, Section 4 (a) (2) on Illegal Interception,
Section 4 (a) (3) on Data Interference, Section 4 (a) (4) on System Interference,
Section 4 (a) (5) on Misuse of Devices, Section 4 (a) (6) on Cyber-squatting,
Section 4 (b) (1) on Computer-related Forgery, Section 4 (b) (2) on Computer-
related Fraud, Section 4 (b) (3) on Computer-related Identity Theft, and Section 4
(c) (1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to
Sections 4 (c) (2) on Child Pornography, 4 (c) (3) on Unsolicited Commercial
Communications, and 4 (c) (4) on online Libel.
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the
correct application of Section 7 that authorizes prosecution of the offender under
both the Revised Penal Code and Republic Act 10175 to actual cases, WITH
THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4 (c)
(4) of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes
a violation of the proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender
under both Section 4 (c) (2) of Republic Act 10175 and Republic Act 9775 or the
Anti-Child Pornography Act of 2009 also constitutes a violation of the same
proscription,
and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED. SAcCIH

(Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, 203299, 203306, 203359,
|||

203378, 203391, 203407, 203440, 203453, 203454, 203469, 203501, 203509,

203515 & 203518, [February 18, 2014], 727 PHIL 28-430)

[G.R. No. 203335. April 22, 2014.]

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY

P. MEDINA, JANETTE TORAL and ERNESTO SONIDO,
JR., petitioners, vs. THE SECRETARY OF JUSTICE,
THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, respondents.

[G.R. No. 203299. April 22, 2014.]

LOUIS "BAROK" C. BIRAOGO, petitioner, vs. NATIONAL

BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL
POLICE, respondents.

[G.R. No. 203306. April 22, 2014.]

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG

MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID,
TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET
AL., petitioners, vs. OFFICE OF THE PRESIDENT, represented
by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and
HOUSE OF REPRESENTATIVES, respondents.

[G.R. No. 203359. April 22, 2014.]

SENATOR TEOFISTO DL GUINGONA

III, petitioner, vs. EXECUTIVE SECRETARY,
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, and DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, respondents.

[G.R. No. 203378. April 22, 2014.]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA

ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, petitioners, vs. THE
EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET
AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION,
THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION
AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, respondents.

[G.R. No. 203391. April 22, 2014.]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,

VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., petitioners, vs. PAQUITO N. OCHOA, JR., in his capacity
as Executive Secretary and alter-ego of President Benigno
Simeon Aquino III, LEILA DE LIMA in her capacity
as Secretary of Justice, respondents.

[G.R. No. 203407. April 22, 2014.]

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL

RENATO M. REYES, JR., National Artist BIENVENIDO L.
LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo
Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice-President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, petitioners, vs. BENIGNO SIMEON C. AQUINO III,
President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE
PHILIPPINES, represented by SENATE PRESIDENT JUAN
PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented
by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office,
NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME,
Chief of the Philippine National Police, MANUEL A. ROXAS
II, Secretary of the Department of the Interior and Local
Government, respondents.

[G.R. No. 203440. April 22, 2014.]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA,

AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN
(all of the Ateneo Human Rights
Center), petitioners, vs. HONORABLE PAQUITO OCHOA in his
capacity as Executive Secretary, HONORABLE LEILA DE LIMA
in her capacity as Secretary of Justice, HONORABLE MANUEL
ROXAS in his capacity as Secretary of the Department of the
Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National
Bureau of Investigation (all of the Executive
Department of Government), respondents.

[G.R. No. 203453. April 22, 2014.]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES

(NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR
MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS,
JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, petitioners, vs. THE EXECUTIVE SECRETARY,
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF BUDGET AND MANAGEMENT, THE
DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL
POLICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO.
10175, respondents.

[G.R. No. 203454. April 22, 2014.]

PAUL CORNELIUS T. CASTILLO & RYAN D.

ANDRES, petitioners, vs. THE HON. SECRETARY OF JUSTICE,
THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, respondents.

[G.R. No. 203469. April 22, 2014.]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN

NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D.
ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD
A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P.
RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC.
PRESIDENT RUBEN B. LICERA, JR.; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E.
RAHON, petitioners, vs. HIS EXCELLENCY BENIGNO S.
AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by
HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as
Speaker of the House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary; HON.
LEILA M. DE LIMA, in her capacity as Secretary of Justice;
HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications
Technology Office; HON. NONNATUS CAESAR R. ROJAS, in
his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, respondents.

[G.R. No. 203501. April 22, 2014.]

PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. HIS
EXCELLENCY BENIGNO S. AQUINO III, in his official capacity
as President of the Republic of the Philippines; HON.
PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official
capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director,
Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as
Director of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National
Police, respondents.

[G.R. No. 203509. April 22, 2014.]

BAYAN MUNA REPRESENTATIVE NERI J.

COLMENARES, petitioner, vs. THE
EXECUTIVE SECRETARY PAQUITO OCHOA, JR., respondent.

[G.R. No. 203515. April 22, 2014.]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.

represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal
capacity, petitioner, vs. OFFICE OF THE PRESIDENT, PRES.
BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET
AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, respondents.

[G.R. No. 203518. April 22, 2014.]

PHILIPPINE INTERNET FREEDOM ALLIANCE,

composed of DAKILA- PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco, PARTIDO
LAKAS NG MASA, represented by Cesar S. Melencio,
 FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA MORALES, JAMES MATTHEW
B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA,
ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO,
ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG,
ANA ALEXANDRA C. CASTRO, petitioners, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE
EXECUTIVE DIRECTOR OF THE INFORMATION
TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE
NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, respondents.

RESOLUTION

ABAD, J : p

A number of petitioners seek reconsideration of the

Court's February 18, 2014 Decision that declared invalid and unconstitutional
certain provisions of Republic Act 10125 or the Cybercrime Prevention
Act of 2012 and upheld the validity of the others. The respondents,
represented by the Office of the Solicitor General, also seek
reconsideration of portions of that decision. After going over their motions,
however, the Court sees no substantial arguments from either side to warrant
the reversal of its February 18, 2014 Decision.
The point about the legislative bicameral committee's
insertions of certain provisions that were neither in the House bill nor in the
Senate bill is something that the Court is not inclined to investigate since
insertions are within the power of those committees to make so long as the
passage of the law complies with the constitutional requirements. 1 The
Cybercrime Prevention Act went through both houses and they approved it.
Any issue concerning alleged non-compliance with the governing rules of both
houses regarding committee insertions have to be internally resolved by each
house.
 In any event, the Court will briefly address certain aspects of the
decision that drew the most objections. ScHAIT

Section 6 of the cybercrime law imposes penalties that are one degree
higher when the crimes defined in the Revised Penal Code and certain
special laws are committed with the use of information and communication
technologies (ICT). Some of the petitioners insist that Section 6 is invalid
since it produces an unusual chilling effect on users of cyberspace that would
hinder free expression.
Petitioner Bloggers and Netizens for Democracy insist that Section 6
cannot stand in the absence of a definition of the term "information and
communication technology". 2 But petitioner seems to forget the basic tenet
that statutes should not be read in isolation from one another. The
parameters of that ICT exist in many other laws. Indeed those parameters
have been used as basis for establishing government systems and classifying
evidence. 3 These along with common usage provide the needed boundary
within which the law may be applied.
The Court had ample opportunity to consider the proposition that
Section 6 violates the equal protection clause via the parties' pleadings, oral
arguments, and memoranda. But, as the Decision stressed, the power to fix
the penalties for violations of penal laws, like the cybercrime law, exclusively
belongs to Congress.
In any event, Section 6 of the cybercrime law merely makes the
commission of existing crimes through the internet a qualifying circumstance
that raises by one degree the penalties corresponding to such crimes. This is
not at all arbitrary since a substantial distinction exists between crimes
committed through the use of ICT and similar crimes committed using
conventional means.
The United Nations Special Rapporteur, 4 Frank La Rue, acknowledged
the material distinction. He pointed out that "[t]he vast potential and
benefits of the Internet are rooted in its unique characteristics, such as its
speed, worldwide reach and relative anonymity." For this reason, while many
governments advocate freedom online, they recognize the necessity to
regulate certain aspects of the use of this media to protect the most
vulnerable. 5
Not infrequently, certain users of the technology have found means to
evade being identified and for this reason have been emboldened to reach far
more victims or cause greater harm or both. It is, therefore, logical for
Congress to consider as aggravating the deliberate use of available ICT by
those who ply their wicked trades. TAIEcS
 Compared to traditional crimes, cybercrimes are more perverse. In
traditional estafa for example, the offender could reach his victim only at a
particular place and a particular time. It is rare that he could consummate his
crime without exposing himself to detection and prosecution. Fraud online,
however, crosses national boundaries, generally depriving its victim of the
means to obtain reparation of the wrong done and seek prosecution and
punishment of the absent criminal. Cybercriminals enjoy the
advantage of anonymity, like wearing a mask during a heist.
Petitioners share the Chief Justice's concern for the overall
impact of those penalties, being one degree higher than those imposed on
ordinary crimes, including the fact that the prescriptive periods for the
equivalent cybercrimes have become longer. 6
Prescription is not a matter of procedure over which the Court has
something to say. Rather, it is substantive law since it assumes the
existence of an authority to punish a wrong, which authority the Constitution
vests in Congress alone. Thus, there is no question that Congress may
provide a variety of periods for the prescription of offenses as it sees fit. What
it cannot do is pass a law that extends the periods of prescription to impact
crimes committed before its passage. 7
It is pointed out that the legislative discretion to fix the penalty for
crimes is not absolute especially when this discretion is exercised in
violation of the freedom of expression. The increase in the penalty for online
libel creates, according to this view, greater and unusual chilling effect that
violates the protection afforded to such freedom.
But what the stiffer penalty for online libel truly targets are those who
choose to use this most pervasive of media without qualms, tearing down the
reputation of private individuals who value their names and community
standing. The law does not remotely and could not have any chilling effect on
the right of the people to disagree, a most protected right, the
exercise of which does not constitute libel.cTCEIS

The majority of the movants believe that the Court's decision upholding
the constitutionality of Section 4 (c) (4), which penalizes online libel,
effectively tramples upon the right to free expression. But libel is not a
protected speech. There is no freedom to unjustly destroy the reputation of a
decent woman by publicly claiming that she is a paid prostitute.
As early as 1912, the Court held that libel is a form of expression not
protected by the Constitution. 8 Libel, like obscenity, belongs to those
forms of speeches that have never attained Constitutional protection and are
considered outside the realm of protected freedom. As explained by the US
Supreme Court in Champlinsky v. New Hampsire: 9
 Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There
are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or "fighting" words — those
which, by their very utterance, inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that such utterances
are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.
"Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would
raise no question under that instrument." (Emphasis supplied)
The constitutional guarantee against prior restraint and subsequent
punishment, the jurisprudential requirement of "actual malice," and the legal
protection afforded by "privilege communications" all ensure that protected
speech remains to be protected and guarded. As long as the expression or
speech falls within the protected sphere, it is the solemn duty of courts to
ensure that the rights of the people are protected.
At bottom, the deepest concerns of the movants seem to be the fact
that the government seeks to regulate activities in the internet at all. For them,
the Internet is a place where a everyone should be free to do and say
whatever he or she wants. But that is anarchical. Any good thing can be
converted to evil use if there are no laws to prohibit such use. Indeed, both
the United States and the Philippines have promulgated laws that regulate the
use of and access to the Internet. 10
The movants argue that Section 4 (c) (4) is both vague and overbroad.
But, again, online libel is not a new crime. It is essentially the old crime of libel
found in the 1930 Revised Penal Code and transposed to operate in the
cyberspace. Consequently, the mass of jurisprudence that secures the
freedom of expression from its reach applies to online libel. Any apprehended
vagueness in its provisions has long been settled by precedents.
The parties' other arguments in their respective motions for
reconsideration are mere reiterations that the Court already considered and
ruled upon when it promulgated its earlier Decision.
WHEREFORE, the Court DENIES with finality the various motions for
reconsideration that both the petitioners and the respondents, represented by
the Office of the Solicitor General, filed for lack of merit.
SO ORDERED. aEHIDT
 (Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, 203299, 203306, 203359,
|||

203378, 203391, 203407, 203440, 203453, 203454, 203469, 203501, 203509,

203515 & 203518 (Resolution), [April 22, 2014], 733 PHIL 717-774)

Vivares vs. St. Theresa’s College, G.R. No. 202666, September 29, 2014

[G.R. No. 202666. September 29, 2014.]

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID

SUZARA, petitioners, vs. ST. THERESA'S COLLEGE, MYLENE
RHEZA T. ESCUDERO, and JOHN DOES, respondents.

DECISION

VELASCO, JR., J : p

The individual's desire for privacy is never absolute, since

participation in society is an equally powerful desire. Thus each
individual is continually engaged in a personal adjustment process in
which he balances the desire for privacy with the desire for disclosure
and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.
~ Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, in relation to Section 19 of A.M. No. 08-1-16-SC, 1 otherwise known as
the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27, 2012
Decision 2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP.
Proc. No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both
minors, were, during the period material, graduating high school students
at St. Theresa's College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend, Julia
and Julienne, along with several others, took digital pictures of themselves clad
only in their undergarments. These pictures were then uploaded by Angela
Lindsay Tan (Angela) on her Facebook 3 profile.
 Back at the school, Mylene Rheza T. Escudero (Escudero), a computer
teacher at STC's high school department, learned from her students that some
seniors at STC posted pictures online, depicting themselves from the waist up,
dressed only in brassieres. Escudero then asked her students if they knew who
the girls in the photos are. In turn, they readily identified Julia, Julienne, and
Chloe Lourdes Taboada (Chloe), among others.
Using STC's computers, Escudero's students logged in to their respective
personal Facebook accounts and showed her photos of the identified students,
which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes
inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles
of clothing that show virtually the entirety of their black brassieres. What is more,
Escudero's students claimed that there were times when access to or the
availability of the identified students' photos was not confined to the girls'
Facebook friends, 4 but were, in fact, viewable by any Facebook user. 5
Upon discovery, Escudero reported the matter and, through one of her
student's Facebook page, showed the photos to Kristine Rose Tigol (Tigol),
STC's Discipline-in-Charge, for appropriate action. Thereafter, following an
investigation, STC found the identified students to have deported themselves in a
manner proscribed by the school's Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholic beverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity;
contains sexually suggestive messages, language or
symbols; and
6. Posing and uploading pictures on the Internet that entail ample
body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the
pictures in question, reported, as required, to the office of Sr. Celeste Ma.
Purisima Pe (Sr. Purisima), STC's high school principal and ICM 6 Directress.
They claimed that during the meeting, they were castigated and verbally abused
by the STC officials present in the conference, including Assistant Principal
Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima
informed their parents the following day that, as part of their penalty, they are
barred from joining the commencement exercises scheduled on March 30,
2012. EDHCSI
 A week before graduation, or on March 23, 2012, Angela's mother, Dr.
Armenia M. Tan (Tan), filed a Petition for Injunction and Damages before the
RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-
38594. 7 In it, Tan prayed that defendants therein be enjoined from implementing
the sanction that precluded Angela from joining the commencement exercises.
On March 25, 2012, petitioner Rhonda Ave Vivares (Vivares), the mother of Julia,
joined the fray as an intervenor.
On March 28, 2012, defendants in Civil Case No. CEB-38594 filed their
memorandum, containing printed copies of the photographs in issue as annexes.
That same day, the RTC issued a temporary restraining order (TRO) allowing the
students to attend the graduation ceremony, to which STC filed a motion for
reconsideration.
Despite the issuance of the TRO, STC, nevertheless, barred the
sanctioned students from participating in the graduation rites, arguing that, on the
date of the commencement exercises, its adverted motion for reconsideration on
the issuance of the TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a
Writ of Habeas Data, docketed as SP. Proc. No. 19251-CEB 8 on the basis of the
following considerations:
1. The photos of their children in their undergarments (e.g., bra)
were taken for posterity before they changed into their
swimsuits on the occasion of a birthday beach party;
2. The privacy setting of their children's Facebook accounts was
set at "Friends Only." They, thus, have a reasonable
expectation of privacy which must be respected.
3. Respondents, being involved in the field of education, knew or
ought to have known of laws that safeguard the right to
privacy. Corollarily, respondents knew or ought to have
known that the girls, whose privacy has been invaded, are
the victims in this case, and not the offenders. Worse, after
viewing the photos, the minors were called "immoral" and
were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be
used and reproduced without their consent. Escudero,
however, violated their rights by saving digital copies of the
photos and by subsequently showing them to STC's officials.
Thus, the Facebook accounts of petitioners' children were
intruded upon;
 5. The intrusion into the Facebook accounts, as well as the copying
of information, data, and digital images happened at STC's
Computer Laboratory; and
6. All the data and digital images that were extracted were boldly
broadcasted by respondents through their memorandum
submitted to the RTC in connection with Civil Case No. CEB-
38594.
To petitioners, the interplay of the foregoing constitutes an invasion of their
children's privacy and, thus, prayed that: (a) a writ of habeas data be issued; (b)
respondents be ordered to surrender and deposit with the court all soft and
printed copies of the subject data before or at the preliminary hearing; and (c)
after trial, judgment be rendered declaring all information, data, and digital
images accessed, saved or stored, reproduced, spread and used, to have been
illegally obtained in violation of the children's right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an
Order dated July 5, 2012, issued the writ of habeas data. Through the same
Order, herein respondents were directed to file their verified written return,
together with the supporting affidavits, within five (5) working days from service of
the writ.
In time, respondents complied with the RTC's directive and filed their
verified written return, laying down the following grounds for the denial of the
petition, viz.: (a) petitioners are not the proper parties to file the petition; (b)
petitioners are engaging in forum shopping; (c) the instant case is not one where
a writ of habeas data may issue; and (d) there can be no violation of their right to
privacy as there is no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition
for habeas data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated
confidentiality.
xxx xxx xxx
SO ORDERED. 9 SEcTHA

To the trial court, petitioners failed to prove the existence of an actual or

threatened violation of the minors' right to privacy, one of the preconditions for
the issuance of the writ of habeas data. Moreover, the court a quo held that the
photos, having been uploaded on Facebook without restrictions as to who may
view them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal purpose, that is,
the implementation of the school's policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court
pursuant to Section 19 of the Rule on Habeas Data. 10
The Issues
The main issue to be threshed out in this case is whether or not a writ
of habeas data should be issued given the factual milieu. Crucial in resolving the
controversy, however, is the pivotal point of whether or not there was indeed an
actual or threatened violation of the right to privacy in the life, liberty, or security
of the minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the
availability of the Writ of Habeas Data
The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved party. 11 It is an
independent and summary remedy designed to protect the image, privacy,
honor, information, and freedom of information of an individual, and to provide a
forum to enforce one's right to the truth and to informational privacy. It seeks to
protect a person's right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in
order to achieve unlawful ends. 12 IaTSED

In developing the writ of habeas data, the Court aimed to protect an

individual's right to informational privacy, among others. A comparative law
scholar has, in fact, defined habeas data as "a procedure designed to safeguard
individual freedom from abuse in the information age." 13 The writ, however, will
not issue on the basis merely of an alleged unauthorized access to information
about a person. Availment of the writ requires the existence of a nexus between
the right to privacy on the one hand, and the right to life, liberty or security on the
other. 14 Thus, the existence of a person's right to informational privacy and a
showing, at least by substantial evidence, of an actual or threatened violation of
the right to privacy in life, liberty or security of the victim are indispensable before
the privilege of the writ may be extended. 15
Without an actionable entitlement in the first place to the right to
informational privacy, a habeas data petition will not prosper. Viewed from the
perspective of the case at bar, this requisite begs this question: given the nature
of an online social network (OSN) — (1) that it facilitates and promotes real-time
interaction among millions, if not billions, of users, sans the spatial
barriers, 16 bridging the gap created by physical space; and (2) that any
information uploaded in OSNs leaves an indelible trace in the provider's
databases, which are outside the control of the end-users — is there a right to
informational privacy in OSN activities of its users? Before addressing this
point, We must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to cases of
extralegal killings and enforced disappearances
Contrary to respondents' submission, the Writ of Habeas Data was not
enacted solely for the purpose of complementing the Writ of Amparo in cases of
extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. — Any aggrieved party may file a petition
for the writ of habeas data. However, in cases of extralegal killings
and enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in
the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ
only to cases of extralegal killings or enforced disappearances, the above
underscored portion of Section 2, reflecting a variance of habeas data situations,
would not have been made.
Habeas data, to stress, was designed "to safeguard individual freedom
from abuse in the information age." 17 As such, it is erroneous to limit its
applicability to extralegal killings and enforced disappearances only. In fact, the
annotations to the Rule prepared by the Committee on the Revision of the Rules
of Court, after explaining that the Writ of Habeas Data complements the Writ of
Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an
independent remedy to enforce one's right to privacy, more
specifically the right to informational privacy. The remedies against
the violation of such right can include the updating, rectification,
suppression or destruction of the database or information or files in
possession or in control of respondents. 18 (emphasis Ours)
 Clearly then, the privilege of the Writ of Habeas Data may also be availed
of in cases outside of extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing
of data or information
Respondents' contention that the habeas data writ may not issue against
STC, it not being an entity engaged in the gathering, collecting or storing of data
or information regarding the person, family, home and correspondence of the
aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas
data protection shall be available only against abuses of a person or
entity engaged in the business of gathering, storing, and collecting of data. As
provided under Section 1 of the Rule:
Section 1. Habeas Data. — The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.
(emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly
conveys the idea thathabeas data is a protection against unlawful acts or
omissions of public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need not
be in the business of collecting or storing data. ATcEDS

To "engage" in something is different from undertaking a business

endeavour. To "engage" means "to do or take part in something." 19 It does
not necessarily mean that the activity must be done in pursuit of a business.
What matters is that the person or entity must be gathering, collecting or storing
said data or information about the aggrieved party or his or her family. Whether
such undertaking carries the element of regularity, as when one pursues a
business, and is in the nature of a personal endeavour, for any other reason or
even for no reason at all, is immaterial and such will not prevent the writ from
getting to said person or entity.
To agree with respondents' above argument, would mean unduly limiting
the reach of the writ to a very small group, i.e., private persons and entities
whose business is data gathering and storage, and in the process decreasing the
effectiveness of the writ as an instrument designed to protect a right which is
easily violated in view of rapid advancements in the information and
communications technology — a right which a great majority of the users of
technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed to the
core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacy has, through time, greatly evolved, with
technological advancements having an influential part therein. This evolution was
briefly recounted in former Chief Justice Reynato S. Puno's speech, The
Common Right to Privacy, 20 where he explained the three strands of the right to
privacy, viz.: (1) locational or situational privacy; 21 (2) informational privacy; and
(3) decisional privacy. 22 Of the three, what is relevant to the case at bar is
the right to informational privacy — usually defined as the right of individuals
to control information about themselves. 23
With the availability of numerous avenues for information gathering and
data sharing nowadays, not to mention each system's inherent vulnerability to
attacks and intrusions, there is more reason that every individual's right to control
said flow of information should be protected and that each individual should have
at least a reasonable expectation of privacy in cyberspace. Several
commentators regarding privacy and social networking sites, however, all agree
that given the millions of OSN users, "[i]n this [Social Networking] environment,
privacy is no longer grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking." 24
It is due to this notion that the Court saw the pressing need to provide for
judicial remedies that would allow a summary hearing of the unlawful use of data
or information and to remedy possible violations of the right to privacy. 25 In the
same vein, the South African High Court, in its Decision in the landmark
case, H v. W, 26 promulgated on January 30, 2013, recognized that "[t]he law
has to take into account the changing realities not only technologically but also
socially or else it will lose credibility in the eyes of the people. . . . It is imperative
that the courts respond appropriately to changing times, acting cautiously and
with wisdom." Consistent with this, the Court, by developing what may be viewed
as the Philippine model of the writ of habeas data, in effect, recognized that,
generally speaking, having an expectation of informational privacy is not
necessarily incompatible with engaging in cyberspace activities, including
those that occur in OSNs.
The question now though is up to what extent is the right to privacy
protected in OSNs? Bear in mind that informational privacy involves personal
information. At the same time, the very purpose of OSNs is socializing — sharing
a myriad of information, 27 some of which would have otherwise remained
personal.
b. Facebook's Privacy Tools: a response to the clamor for
privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to
interact and to stay connected to other members of the same or different social
media platform through the sharing of statuses, photos, videos, among others,
depending on the services provided by the site. It is akin to having a room filled
with millions of personal bulletin boards or "walls," the contents of which are
under the control of each and every user. In his or her bulletin board, a
user/owner can post anything — from text, to pictures, to music and videos —
access to which would depend on whether he or she allows one, some or all of
the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking
sites, including the one involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers, people use "to stay connected
with friends and family, to discover what's going on in the world, and to share and
express what matters to them." 28
Facebook connections are established through the process of "friending"
another user. By sending a "friend request," the user invites another to connect
their accounts so that they can view any and all "Public" and "Friends Only" posts
of the other. Once the request is accepted, the link is established and both users
are permitted to view the other user's "Public" or "Friends Only" posts, among
others. "Friending," therefore, allows the user to form or maintain one-to-one
relationships with other users, whereby the user gives his or her "Facebook
friend" access to his or her profile and shares certain information to the latter. 29
To address concerns about privacy, 30 but without defeating its purpose,
Facebook was armed with different privacy tools designed to regulate the
accessibility of a user's profile 31 as well as information uploaded by the user.
In H v. W, 32 the South Gauteng High Court recognized this ability of the users to
"customize their privacy settings," but did so with this caveat: "Facebook states in
its policies that, although it makes every effort to protect a user's information,
these privacy settings are not fool-proof." 33
For instance, a Facebook user can regulate the visibility and accessibility
of digital images (photos), posted on his or her personal bulletin or "wall,"
except for the user's profile picture and ID, by selecting his or her desired privacy
setting:
(a) Public — the default setting; every Facebook user can view the
photo;
 (b) Friends of Friends — only the user's Facebook friends and their
friends can view the photo;
(b) Friends — only the user's Facebook friends can view the photo;
(c) Custom — the photo is made visible only to particular friends
and/or networks of the Facebook user; and
(d) Only Me — the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to
set up barriers to broaden or limit the visibility of his or her specific profile
content, statuses, and photos, among others, from another user's point of view.
In other words, Facebook extends its users an avenue to make the availability of
their Facebook activities reflect their choice as to "when and to what extent to
disclose facts about [themselves] — and to put others in the position of receiving
such confidences." 34 Ideally, the selected setting will be based on one's desire to
interact with others, coupled with the opposing need to withhold certain
information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer
Facebook users can view that user's particular post. ISDCHA

STC did not violate petitioners' daughters' right to privacy

Without these privacy settings, respondents' contention that there
is no reasonable expectation of privacy in Facebook would, in context, be
correct. However, such is not the case. It is through the availability of said
privacy tools that many OSN users are said to have a subjective
expectation that only those to whom they grant access to their profile will
view the information they post or upload thereto. 35
This, however, does not mean that any Facebook user automatically has a
protected expectation of privacy in all of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it
is first necessary that said user, in this case the children of
petitioners, manifest the intention to keep certain posts private, through the
employment of measures to prevent access thereto or to limit its
visibility. 36 And this intention can materialize in cyberspace through the
utilization of the OSN's privacy tools. In other words, utilization of these privacy
tools is the manifestation, in cyber world, of the user's invocation of his or
her right to informational privacy. 37
Therefore, a Facebook user who opts to make use of a privacy tool to
grant or deny access to his or her post or profile detail should not be denied the
informational privacy right which necessarily accompanies said
choice. 38 Otherwise, using these privacy tools would be a feckless exercise,
such that if, for instance, a user uploads a photo or any personal information to
his or her Facebook page and sets its privacy level at "Only Me" or a custom list
so that only the user or a chosen few can view it, said photo would still be
deemed public by the courts as if the user never chose to limit the photo's
visibility and accessibility. Such position, if adopted, will not only strip these
privacy tools of their function but it would also disregard the very intention of the
user to keep said photo or information within the confines of his or her private
space.
We must now determine the extent that the images in question were visible
to other Facebook users and whether the disclosure was confidential in nature. In
other words, did the minors limit the disclosure of the photos such that the
images were kept within their zones of privacy? This determination is necessary
in resolving the issue of whether the minors carved out a zone of privacy when
the photos were uploaded to Facebook so that the images will be protected
against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children's privacy right
being violated, insist that Escudero intruded upon their children's Facebook
accounts, downloaded copies of the pictures and showed said photos to Tigol.
To them, this was a breach of the minors' privacy since their Facebook accounts,
allegedly, were under "very private" or "Only Friends" setting safeguarded with a
password. 39 Ultimately, they posit that their children's disclosure was only limited
since their profiles were not open to public viewing. Therefore, according to them,
people who are not their Facebook friends, including respondents, are barred
from accessing said post without their knowledge and consent. As petitioner's
children testified, it was Angela who uploaded the subject photos which were
only viewable by the five of them, 40 although who these five are do not appear
on the records.
Escudero, on the other hand, stated in her affidavit 41 that "my students
showed me some pictures of girls clad in brassieres. This student [sic] of mine
informed me that these are senior high school [students] of STC, who are their
friends in [F]acebook. . . . They then said [that] there are still many other photos
posted on the Facebook accounts of these girls. At the computer lab, these
students then logged into their Facebook account [sic], and accessed from there
the various photographs . . . . They even told me that there had been times when
these photos were 'public' i.e., not confined to their friends in Facebook."
In this regard, We cannot give much weight to the minors' testimonies for
one key reason: failure to question the students' act of showing the photos to
Tigol disproves their allegation that the photos were viewable only by the five of
them. Without any evidence to corroborate their statement that the images were
visible only to the five of them, and without their challenging Escudero's claim
that the other students were able to view the photos, their statements are, at
best, self-serving, thus deserving scant consideration. 42
It is well to note that not one of petitioners disputed Escudero's sworn
account that her students, who are the minors' Facebook "friends," showed her
the photos using their own Facebook accounts. This only goes to show
that no special means to be able to view the allegedly private posts were ever
resorted to by Escudero's students, 43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their Facebook
friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is "Public," it can
be surmised that the photographs in question were viewable to everyone on
Facebook, absent any proof that petitioners' children positively limited the
disclosure of the photograph. If such were the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez 44 is most instructive: DEAaIS

[A] person who places a photograph on the Internet precisely

intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances such as here, where the Defendant did
not employ protective measures or devices that would have controlled
access to the Web page or the photograph itself. 45
Also, United States v. Maxwell 46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent to
the public at large in the chat room or e-mail that is forwarded from
correspondent to correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster
the petitioners' contention. In this regard, the cyber community is agreed that the
digital images under this setting still remain to be outside the confines of the
zones of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by
giving its users the tools to interact and share in any
conceivable way;" 47
(2) A good number of Facebook users "befriend" other users who
are total strangers; 48
(3) The sheer number of "Friends" one user has, usually by the
hundreds; and
(4) A user's Facebook friend can "share" 49 the former's post, or
"tag" 50 others who are not Facebook friends with the former,
despite its being visible only to his or her own Facebook
friends.
 It is well to emphasize at this point that setting a post's or profile detail's
privacy to "Friends" is no assurance that it can no longer be viewed by another
user who is not Facebook friends with the source of the content. The user's own
Facebook friend can share said content or tag his or her own Facebook friend
thereto, regardless of whether the user tagged by the latter is Facebook friends
or not with the former. Also, when the post is shared or when a person is tagged,
the respective Facebook friends of the person who shared the post or who was
tagged can view the post, the privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B
are not Facebook friends. If C, A's Facebook friend, tags B in A's post, which is
set at "Friends," the initial audience of 100 (A's own Facebook friends) is
dramatically increased to 300 (A's 100 friends plus B's 200 friends or the public,
depending upon B's privacy setting). As a result, the audience who can view the
post is effectively expanded — and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook's
proclivity towards user interaction and socialization rather than seclusion or
privacy, as it encourages broadcasting of individual user posts. In fact, it has
been said that OSNs have facilitated their users' self-tribute, thereby resulting
into the "democratization of fame." 51 Thus, it is suggested, that a profile, or even
a post, with visibility set at "Friends Only" cannot easily, more so automatically,
be said to be "very private," contrary to petitioners' argument.
As applied, even assuming that the photos in issue are visible only to the
sanctioned students' Facebook friends, respondent STC can hardly be taken to
task for the perceived privacy invasion since it was the minors' Facebook friends
who showed the pictures to Tigol. Respondents were mere recipients of what
were posted. They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons who had legitimate
access to the said posts. Clearly, the fault, if any, lies with the friends of the
minors. Curiously enough, however, neither the minors nor their parents imputed
any violation of privacy against the students who showed the images to
Escudero.
Furthermore, petitioners failed to prove their contention that respondents
reproduced and broadcasted the photographs. In fact, what petitioners attributed
to respondents as an act of offensive disclosure was no more than the actuality
that respondents appended said photographs in their memorandum submitted to
the trial court in connection with Civil Case No. CEB-38594. 52 These are not
tantamount to a violation of the minor's informational privacy rights, contrary to
petitioners' assertion.
In sum, there can be no quibbling that the images in question, or to be
more precise, the photos of minor students scantily clad, are personal in nature,
likely to affect, if indiscriminately circulated, the reputation of the minors enrolled
in a conservative institution. However, the records are bereft of any evidence,
other than bare assertions that they utilized Facebook's privacy settings to make
the photos visible only to them or to a select few. Without proof that they placed
the photographs subject of this case within the ambit of their protected zone of
privacy, they cannot now insist that they have an expectation of privacy with
respect to the photographs in question.
Had it been proved that the access to the pictures posted were limited to
the original uploader, through the "Me Only" privacy setting, or that the user's
contact list has been screened to limit access to a select few, through the
"Custom" setting, the result may have been different, for in such instances, the
intention to limit access to the particular post, instead of being broadcasted to the
public at large or all the user's friends en masse, becomes more manifest and
palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children's
ears." 53 This means that self-regulation on the part of OSN users and internet
consumers in general is the best means of avoiding privacy rights
violations. 54 As a cyberspace community member, one has to be proactive in
protecting his or her own privacy. 55 It is in this regard that many OSN users,
especially minors, fail. Responsible social networking or observance of the
"netiquettes" 56 on the part of teenagers has been the concern of many due to
the widespread notion that teenagers can sometimes go too far since they
generally lack the people skills or general wisdom to conduct themselves
sensibly in a public forum. 57
Respondent STC is clearly aware of this and incorporating lessons on
good cyber citizenship in its curriculum to educate its students on proper online
conduct may be most timely. Too, it is not only STC but a number of schools and
organizations have already deemed it important to include digital literacy and
good cyber citizenship in their respective programs and curricula in view of the
risks that the children are exposed to every time they participate in online
activities. 58 Furthermore, considering the complexity of the cyber world and its
pervasiveness, as well as the dangers that these children are wittingly or
unwittingly exposed to in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their children about
being a good digital citizen is encouraged by these institutions and organizations.
In fact, it is believed that "to limit such risks, there's no substitute for parental
involvement and supervision." 59
As such, STC cannot be faulted for being steadfast in its duty of teaching
its students to be responsible in their dealings and activities in cyberspace,
particularly in OSNs, when it enforced the disciplinary actions specified in the
Student Handbook, absent a showing that, in the process, it violated the
students' rights.
OSN users should be aware of the risks that they expose themselves to
whenever they engage in cyberspace activities. Accordingly, they should be
cautious enough to control their privacy and to exercise sound discretion
regarding how much information about themselves they are willing to give up.
Internet consumers ought to be aware that, by entering or uploading any kind of
data or information online, they are automatically and inevitably making it
permanently available online, the perpetuation of which is outside the ambit of
their control. Furthermore, and more importantly, information, otherwise private,
voluntarily surrendered by them can be opened, read, or copied by third parties
who may or may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their
online dealings and activities and must not be negligent in protecting their rights.
Equity serves the vigilant. Demanding relief from the courts, as here, requires
that claimants themselves take utmost care in safeguarding a right which they
allege to have been violated. These are indispensable. We cannot afford
protection to persons if they themselves did nothing to place the matter within the
confines of their private zone. OSN users must be mindful enough to learn the
use of privacy tools, to use them if they desire to keep the information private,
and to keep track of changes in the available privacy settings, such as those of
Facebook, especially because Facebook is notorious for changing these settings
and the site's layout often.
In finding that respondent STC and its officials did not violate the minors'
privacy rights, We find no cogent reason to disturb the findings and case
disposition of the court a quo.
In light of the foregoing, the Court need not belabor the other assigned
errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The
Decision dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City
in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
(Vivares v. St. Theresa's College, G.R. No. 202666, [September 29, 2014], 744
|||

PHIL 451-480)

Zulueta vs. Court of Appeals [G.R. No. 107383, February 20, 1996]
 [G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and

ALFREDO MARTIN, respondents.

Leonides S. Respicio & Associates Law Office for petitioner.

Galileo P. Brion for private respondent.

SYLLABUS

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO

PRIVACY OF COMMUNICATION AND CORRESPONDENCE; A PERSON BY
CONTRACTING MARRIAGE, DOES NOT SHED HIS/HER INTEGRITY OR HIS
RIGHT TO PRIVACY AS AN INDIVIDUAL AND THE CONSTITUTIONAL
PROTECTION IS EVER AVAILABLE TO HIM OR TO HER. — Indeed the
documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of communication and
correspondence [to be] inviolable" is no less applicable simply because it is the
wife (who thinks herself aggrieved by her husband's infidelity) who is the party
against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a "lawful order [from a] court or
when public safety or order requires otherwise, as prescribed by law." Any
violation of this provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." The intimacies between husband and wife do not
justify any one of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy
as an individual and the constitutional protection is ever available to him or
to her.

DECISION

MENDOZA, J : p

This is a petition to review the decision of the Court of Appeals, affirming

the decision of the Regional Trial Court of Manila (Branch X) which ordered
petitioner to return documents and papers taken by her from private respondent's
clinic without the latter's knowledge and consent.
 The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin.
On March 26, 1982, petitioner entered the clinic of her husband, a
doctor of medicine, and in the presence of her mother, a driver and private
respondent's secretary, forcibly opened the drawers and cabinet in her husband's
clinic and took 157 documents consisting of private correspondence between Dr.
Martin and his alleged paramours, greeting cards, cancelled checks, diaries, Dr.
Martin's passport, and photographs. The documents and papers were seized for
use in evidence in a case for legal separation and for disqualification from the
practice of medicine which petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and
papers and for damages against petitioner. The case was filed with the Regional
Trial Court of Manila, Branch X, which, after trial, rendered judgment for private
respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the
properties described in paragraph 3 of plaintiff's Complaint or those further
described in the Motion to Return and Suppress" and ordering
Cecilia Zulueta and any person acting in her behalf to immediately return the
properties to Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorney's fees; and to pay the costs of the
suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using
or submitting/admitting as evidence" the documents and papers in question. On
appeal, the Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.
There is no question that the documents and papers in question belong to
private respondent, Dr. Alfredo Martin, and that they were taken by his wife, the
herein petitioner, without his knowledge and consent. For that reason, the
trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined
her from using them in evidence. In appealing from the
decision of the Court of Appeals affirming the trial court's decision, petitioner's
only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled that
the documents and papers (marked as Annexes A-1 to J-7 of respondent's
comment in that case) were admissible in evidence and, therefore, their use by
petitioner's attorney, Alfonso Felix, Jr., did not constitute malpractice or gross
misconduct. For this reason it is contended that the Court of Appeals erred in
affirming the decision of the trial court instead of dismissing private respondent's
complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was
for disbarment. Among other things, private respondent, Dr. Alfredo Martin, as
complainant in that case, charged that in using the documents in evidence, Atty.
Felix, Jr. committed malpractice or gross misconduct because of the injunctive
order of the trial court. In dismissing the complaint against Atty. Felix, Jr.,
this Court took note of the following defense of Atty. Felix, Jr. which it found to be
"impressed with merit:" 2
On the alleged malpractice or gross misconduct of respondent
[Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx
4. When respondent refiled Cecilia's case for legal separation
before the Pasig Regional Trial Court, there was admittedly an
order of the Manila Regional Trial Court prohibiting Cecilia from using
the documents Annex "A-1 to J-7." On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari,
this Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to
admit the genuineness and authenticity of the subject annexes cannot
be looked upon as malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned annexes. At that
point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation
case pending in the Regional Trial Court of Makati? Respondent submits
it is not malpractice.
Significantly, petitioner's admission was done not thru his counsel
but by Dr. Martin himself under oath. Such verified admission constitutes
an affidavit, and, therefore, receivable in evidence against him. Petitioner
became bound by his admission. For Cecilia to avail herself of her
husband's admission and use the same in her action for legal separation
cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts
to no more than a declaration that his use of the documents and papers for the
purpose of securing Dr. Martin's admission as to their genuineness and
authenticity did not constitute a violation of the injunctive order of the trial court.
By no means does the decision in that case establish the admissibility of the
documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the
charge of violating the writ of preliminary injunction issued by the trial court, it
was only because, at the time he used the documents and papers,
enforcement of the order of the trial court was temporarily restrained by
this Court. The TRO issued by this Court was eventually lifted as the petition for
certiorari filed by petitioner against the trial court's order was dismissed and,
therefore, the prohibition against the further use of the documents and papers
became effective again.
 Indeed the documents and papers in question are inadmissible in
evidence. The constitutional injunction declaring "the privacy of communication
and correspondence [to be] inviolable" 3 is no less applicable simply because it is
the wife (who thinks herself aggrieved by her husband's infidelity) who is the
party against whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a "lawful order [from
a] court or when public safety or order requires otherwise, as prescribed by
law." 4 Any violation of this provision renders the evidence obtained inadmissible
"for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by contracting marriage, does not
shed his/her integrity or his right to privacy as an individual and the constitutional
protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses
by making it privileged. Neither husband nor wife may testify for or against the
other without the consent of the affected spouse while the marriage
subsists. 6 Neither may be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage,
save for specified exceptions. 7 But one thing is freedom of communication; quite
another is a compulsion for each one to share what one knows with the other.
And this has nothing to do with the duty of fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
(Zulueta v. Court of Appeals, G.R. No. 107383, [February 20, 1996], 324 PHIL
|||

63-69)
Ramirez vs. Court of Appeals [G.R. No. 93833, September 28, 1995]

[G.R. No. 93833. September 28, 1995.]

SOCORRO
D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEAL
S and ESTER S. GARCIA, respondent. cdll

E. Voltaire Garcia for petitioner.

Cesar V . Chavez for private respondent.

SYLLABUS
 1 STATUTORY CONSTRUCTION; WHERE THE LANGUAGE OF A
STATUTE IS CLEAR AND UNAMBIGUOUS; RULE. — Legislative intent is
determined principally from the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied according to its express
terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible or absurd or would lead to an injustice.
2 CRIMINAL LAW; ANTI-WIRE TAPPING LAW (R.A. 4200);
MAKES NO DISTINCTION AS TO WHETHER THE PARTY SOUGHT TO BE
PENALIZED OUGHT TO BE A PARTY OTHER THAN OR DIFFERENT FROM
THOSE INVOLVED IN THE PRIVATE COMMUNICATION. — Section 1 of R.A.
4200 entitled, "An Act to Prohibit and Penalize Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," clearly and
unequivocally makes it illegal for any person, not authorized by all the parties to
any private communication to secretly record such communication by means of a
tape recorder. The law makes no distinction as to whether the party sought to be
penalized by the statute ought to be a party other than or different from those
involved in the private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the qualifier
"any." Consequently, as respondent Court of Appeals correctly concluded, "even
a (person) privy to a communication who records his private conversation with
another without the knowledge of the latter (will) qualify as a violator" under this
provision of R.A. 4200.
3 ID.; ID.; NATURE OF CONVERSATION, IMMATERIAL TO A
VIOLATION THEREOF. — The nature of the conversation is immaterial to a
violation of the statute. The substance of the same need not be specifically
alleged in the information. What R.A. 4200 penalizes are the
acts of secretly overhearing, intercepting or recording private communications by
means of the devices enumerated therein. The mere allegation that an individual
made a secret recording of a private communication by means of a tape recorder
would suffice to constitute an offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a
violator, the nature of the conversation, as well as its communication to a third
person should be professed."
4 ID.; ID.; "PRIVATE COMMUNICATION"; SCOPE. — Petitioner's
contention that the phrase "private communication" in Section 1 of R.A.
4200 does not include "private conversations" narrows the ordinary
meaning of the word "communication" to a point of absurdity. The word
communicate comes from the Latin word communicare, meaning "to share or to
impart." In its ordinary signification, communication connotes the act of sharing or
imparting, as in a conversation, or signifies the "process by which meaning or
thoughts are shared between individuals through a common system of symbols
(as language signs or gestures)." These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of "meanings or
thoughts" which are likely to include the emotionally-charged exchange, on
February 22, 1988, between petitioner and private respondent, in the
privacy of the latter's office. Any doubts about the legislative body's
meaning of the phrase "private communication" are, furthermore, put to rest by
the fact that the terms "conversation" and "communication" were interchangeably
used by Senator Tañada in his Explanatory Note to the bill, quoted below: "It has
been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the usual
nature of conversations as well as the undeniable fact that most, if not all,
civilized people have some aspects of their lives they do not wish to expose.
Free conversations are often characterized by exaggerations, obscenity,
agreeable falsehoods, and the expression of anti-social desires of views not
intended to be taken seriously. The right to the privacy of communication,
among others, has expressly been assured by our Constitution. Needless to
state here, the framers of our Constitution must have recognized the
nature of conversations between individuals and the significance of man's
spiritual nature, of his feelings and of his intellect. They must have known that
part of the pleasures and satisfactions of life are to be found in the unaudited,
and free exchange of communication between individuals — free from every
unjustifiable intrusion by whatever means." LexLibris

DECISION

KAPUNAN, J : p

A civil case for damages was filed by petitioner Socorro D. Ramirez in

the Regional Trial Court of Quezon City alleging that the private respondent,
Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood" and in a manner
offensive to petitioner's dignity and personality," contrary to morals, good
customs and public policy." 1
In support of her claim, petitioner produced a verbatim transcript of the
event and sought moral damages, attorney's fees and other
expenses of litigation in the amount of P610,000.00, in addition to costs,
interests and other reliefs awardable at the trial court's discretion. The
transcript on which the civil case was based was culled from a tape
recording of the confrontation made by petitioner. 2 The transcript reads as
follows:
Plaintiff Soccoro D. Ramirez (Chuchi)
Good afternoon Ma'am.
Defendant Ester S. Garcia (ESG)
Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka
napunta rito, porke member ka na, magsumbong ka kung ano
ang gagawin ko sa iyo.
CHUCHI
Kasi, naka duty ako noon.
ESG
Tapos iniwan no. (Sic)
CHUCHI
Hindi ma'am, pero ilan beses na nila akong binalikan, sabing
ganoon.
ESG
Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka,
kasi hanggang, 10:00 p.m., kinabukasan hindi ka na pumasok.
Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-
aapply ka sa review mo, kung kakailanganin ang certification mo,
kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI
Hindi Ma'am. Kasi ang ano ko talaga noon i-cocontinue ko up to
10:00 p.m.
ESG
Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa
hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo
na kung paano ka nakapasok dito "Do you think that on your own
makakapasok ka kung hindi ako. Panunumbyoyan na kita
(Sinusumbatan na kita).
CHUCHI
Itutuloy ko na Ma'am sana ang duty ko.
ESG
Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG
Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on
your own merit alam ko naman kung gaano ka "ka bobo" mo.
Marami ang nag-aaply alam kong hindi ka papasa.
CHUCHI
Kukuha kami ng exam noon.
ESG
Oo, pero hindi ka papasa.
CHUCHI
Eh, bakit ako ang nakuha ni Dr. Tamayo.
ESG
Kukunin ka kasi ako.
CHUCHI
Eh, di sana —
ESG
Huwag mong ipagmalaki na may utak ka kasi wala kang utak.
Akala mo ba makukuha ka dito kung hindi ako.
CHUCHI
Mag-eexplain ako.
ESG
Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung
paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak
ng nanay at tatay mo ang mga magulang ko.
ESG
Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka
puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka
doon.
CHUCHI
Kasi M'am, binabalikan ako ng mga taga Union.
ESG
Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka
makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey
lang sa akin, dahil tapos ka na.
CHUCHI
Ina-ano ko ma'am na utang na loob.
ESG
Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastanganan mo ako.
CHUCHI
Paano kita nilapastanganan?
 ESG
Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo.
Lumabas ka na. Magsumbong ka. 3
As a result of petitioner's recording of the event and alleging that the said
act of secretly taping the confrontation was illegal, private respondent filed a
criminal case before the Regional Trial Court of Pasay City for
violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire
tapping and other related violations of private communication, and other
purposes." An information charging petitioner of violation of the said Act, dated
October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accuses Socorro
D. Ramirez of Violation of Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City, Metro
Manila, Philippines, and within the jurisdiction of this honorable court, the above-
named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to
record the latter's conversation with said accused, did then and there wilfully,
unlawfully and feloniously, with the use of a tape recorder secretly record the
said conversation and thereafter communicate in writing the contents of the said
recording to other person.
Contrary to Law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash
the Information on the ground that the facts charged do not constitute an
offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the
trial court granted the Motion to Quash, agreeing with petitioner that 1) the
facts charged do not constitute an offense under R.A. 4200; and that 2) the
violation punished by R.A. 4200 refers to the taping of a communication by a
person other than a participant to the communication. 4
From the trial court's Order, the private respondent filed a Petition for
Review on Certiorari with this Court, which forthwith referred the case to
the Court of Appeals in a Resolution (by the First Division) of June 19, 1989. cdtai

On February 9, 1990, respondent Court of Appeals promulgated its

assailed Decision declaring the trial court's order of May 3, 1989 null and void,
and holding that:
 "[T]he allegations sufficiently constitute an offense punishable
under Section 1 of R.A. 4200. In thus quashing the information based on
the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible
by certiorari." 5
Consequently, on February 21, 1990, petitioner filed a Motion for
Reconsideration which respondent Court of Appeals denied in its
Resolution 6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue" 7 that the
applicable provision of Republic Act 4200 does not apply to the taping of a
private conversation by one of the parties to the conversation. She contends
that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication. 8 In
relation to this, petitioner avers that the substance or content of the
conversation must be alleged in the Information, otherwise the facts charged
would not constitute a violation of R.A. 4200. 9 Finally, petitioner argues
that R.A. 4200 penalizes the taping of a "private communication," not a
"private conversation" and that consequently, her act of secretly taping her
conversation with private respondent was not illegal under the said act. 10
We disagree. prLL

First, legislative intent is determined principally from the language of a

statute. Where the language of a statute is clear and unambiguous, the law is
applied according to its express terms, and interpretation would be resorted to
only where a literal interpretation would be either impossible 11 or absurd or
would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, "An Act to Prohibit and Penalize Wire
Tapping and Other Related Violations of Private Communication and Other
Purposes," provides:
SECTION 1 It shall be unlawful for any person, not being
authorized by all the parties to any private communication or spoken
word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape
recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal
for any person, not authorized by all the parties to any private communication
to secretly record such communication by means of a tape recorder. The law
makes no distinction as to whether the party sought to be penalized by the
statute ought to be a party other than or different from those involved in the
private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the
qualifier "any." Consequently, as respondent Court of Appeals correctly
concluded, "even a (person) privy to a communication who records his private
conversation with another without the knowledge of the latter (will) qualify as a
violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports
the respondent court's conclusion that in enacting R.A. 4200 our lawmakers
indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or by
third persons. Thus:
xxx xxx xxx
Senator Tañada:
The qualified only 'overhear.'
Senator Padilla:
So that when it is intercepted or recorded, the element of secrecy would
not appear to be material. Now, suppose, Your Honor, the recording is
not made by all the parties but by some parties and involved not criminal
cases that would be mentioned under Section 3 but would cover, for
example civil cases or special proceedings whereby a recording is made
not necessarily by all the parties but perhaps by some in an effort to
show the intent of the parties because the actuation of the parties prior,
simultaneous even subsequent to the contract or the act may be
indicative of their intention. Suppose there is such a recording, would
you say, Your Honor, that the intention is to cover it within the
purview of this bill or outside?
Senator Tañada:
That is covered by the purview of this bill, Your Honor.
Senator Padilla:
Even if the record should be used not in the
prosecution of offense but as evidence to be used in Civil Cases
or special proceedings?
Senator Tañada:
That is right. This is a complete ban on tape recorded
conversations taken without the authorization of all the parties.
Senator Padilla:
Now, would that be reasonable, Your Honor?
Senator Tañada:
I believe it is reasonable because it is not sporting to record the
observation of one without his knowing it and then using it
 against him. It is not fair, it is not sportsmanlike. If the purpose;
Your honor, is to record the intention of the parties. I believe that
all the parties should know that the observations are being
recorded.
Senator Padilla:
This might reduce the utility of recorders.
Senator Tañada:
Well no. For example, I was to say that in meetings of the
board of directors where a tape recording is taken, there
is no objection to this if all the parties know. It is but fair that the
people whose remarks and observations are being made should
know that these are being recorded.
Senator Padilla:
Now, I can understand.
Senator Tañada:
That is why when we take statements of persons, we say: "Please
be informed that whatever you say here may be used against
you." That is fairness and that is what we demand. Now, in
spite of that warning, he makes damaging statements against his
own interest, well, he cannot complain any more. But if you are
going to take a recording of the observations and remarks of a
person without him knowing that it is being taped or
recorded, without him knowing that what is being recorded may
be used against him, I think it is unfair.
xxx xxx xxx
(Congressional Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno:
Do you understand, Mr. Senator, that under Section 1 of the bill
as now worded, if a party secretly records a public speech, he
would be penalized under Section 1? Because the speech is
public, but the recording is done secretly.
Senator Tañada:
Well, that particular aspect is not contemplated by the bill. It is the
communication between one person and another person — not
between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III. No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together
with the above-quoted deliberations from the Congressional Record, therefore
plainly supports the view held by the respondent court that the provision
seeks to penalize even those privy to the private communications. Where the
law makes no distinctions, one does not distinguish. cdlex

Second, the nature of the conversation is immaterial to a violation of the

statute. The substance of the same need not be specifically alleged in the
information. What R.A. 4200 penalizes are the
acts of secretly overhearing, intercepting or recording private communications
by means of the devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by means of a
tape recorder would suffice to constitute an offense under Section 1 of R.A.
4200. As the Solicitor General pointed out in his COMMENT before the
respondent court: "Nowhere (in the said law) is it required that before one can
be regarded as a violator, the nature of the conversation, as well as its
communication to a third person should be professed."14
Finally, petitioner's contention that the phrase "private communication"
in Section 1 of R.A. 4200 does not include "private conversations" narrows the
ordinary meaning of the word "communication" to a point of absurdity. The
word communicate comes from the latin word communicare, meaning "to
share or to impart." In its ordinary signification, communication connotes the
act of sharing or imparting, as in a conversation, 15 or signifies the "process by
which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)." 16 These
definitions are broad enough to include verbal or non-verbal, written or
expressive communications of "meanings or thoughts" which are likely to
include the emotionally-charged exchange, on February 22, 1988, between
petitioner and private respondent, in the privacy of the latter's office. Any
doubts about the legislative body's meaning of the phrase "private
communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator
Tañada in his Explanatory Note to the bill quoted below:
"It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement ignores the
usual nature of conversations as well as the undeniable fact that most, if
not all, civilized people have some aspects of their lives they do not wish
to expose. Free conversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-social
desires of views not intended to be taken seriously. The right to
the privacy of communication, among others, has expressly been
assured by our Constitution. Needless to state here, the framers of our
Constitution must have recognized the nature of conversations between
individuals and the significance of man's spiritual nature, of his feelings
and of his intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free
 exchange of communication between individuals — free from every
unjustifiable intrusion by whatever means." 17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with
the issue of telephone wiretapping, we held that the use of a telephone
extension for the purpose of overhearing a private conversation without
authorization did not violate R.A. 4200 because a telephone extension devise
was neither among those devises enumerated in Section 1 of the law nor was
it similar to those "device(s) or arrangement(s)" enumerated
therein," 19 following the principle that "penal statutes must be construed
strictly in favor of the accused." 20 The instant case turns on a different note,
because the applicable facts and circumstances pointing to a violation of R.A.
4200 suffer from no ambiguity, and the statute itself explicitly mentions the
unauthorized "recording" of private communications with the use of tape-
recorders as among the acts punishable. cdtai

WHEREFORE, because the law, as applied to the case at bench is

clear and unambiguous and leaves us with no discretion, the instant petition is
hereby DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.
SO ORDERED.
(Ramirez v. Court of Appeals, G.R. No. 93833, [September 28, 1995], 318 PHIL
|||

701-713)
Navarro vs. Court of Appeals [G.R. No. 121087, August 26, 1999]
[G.R. No. 121087. August 26, 1999.]

FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS a

nd the PEOPLE OF THE PHILIPPINES, respondents.

Lorenzo O. Navarro, Jr. for petitioner.

The Solicitor General for respondents.

SYNOPSIS

This is a petition for review on certiorari of the

decision of the Court of Appeals dated December 14, 1994 which affirmed the
judgment of the Regional Trial Court of Lucena City dated July 27, 1992 finding
petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and
sentencing him to suffer ten years of prision mayor, as minimum and fourteen
years, eight months and one day of reclusion temporal as maximum, but
increased the death indemnity awarded to the heirs of the victim, from
P30,000.00 to P50,000.00. In this appeal, petitioner contended that the
appellate court had decided the case not in accord with law and with the
applicable decisions of the Supreme Court. Its conclusions were based on
speculation, surmise and conjecture and its judgment was based on a
misapprehension of facts; its finding was contradicted by evidence on record;
and its finding was devoid of support in the record. cAaTED

The Supreme Court ruled that the appeal was without merit. Petitioner had
not shown that the trial court erred in giving weight to the testimony of the
prosecution witness. In fact, the prosecution witness' testimony was confirmed by
the voice recording he had made which established that (1) there was a heated
exchange between petitioner Navarro and the victim Lingan on the placing of the
police blotter of an entry against him and reporter Jalbuena; and (2) that some
form of violence occurred involving petitioner and the victim Lingan, with the
latter getting the worst of it. Accordingly, the decision of the Court of Appeals was
affirmed with the modification that petitioner is sentenced to suffer the term of 8
years of prision mayor as minimum, to 14 years and 8 months of reclusion
temporal, as maximum.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; THE

TESTIMONY OF A WITNESS WHO HAS AN INTEREST IN THE
CONVICTION OF THE ACCUSED IS NOT, FOR THIS REASON ALONE,
UNRELIABLE; CASE AT BAR. — Petitioner Navarro questions the
credibility of the testimony of Jalbuena on the ground that he was a biased
witness, having a grudge against him. The testimony of a witness who has an
interest in the conviction of the accused is not, for this reason alone, unreliable.
Trial courts, which have the opportunity to observe the facial expressions,
gestures, and tones of voice of a witness while testifying, are competent to
determine whether his or her testimony should be given credence. In the instant
case, petitioner Navarro has not shown that the trial court erred in according
weight to the testimony of Jalbuena.
2. CRIMINAL LAW; WIRE TAPPING ACT; THE LAW PROHIBITS THE
OVERHEARING, INTERCEPTING, OR RECORDING OF PRIVATE
COMMUNICATIONS; CASE AT BAR. — Indeed, Jalbuena's testimony is
confirmed by the voice recording he had made. It may be asked whether the tape
is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer
is in the affirmative. The law provides: SECTION 1. It shall be unlawful for any
person, not being authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or
spoken word by using a device commonly known as a dictaphone or dictagraph
or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described: It shall also be unlawful for any person, be he a participant or not in
the act or acts penalized in the next preceding sentence, to knowingly possess
any tape record, wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents thereof,
either verbally or in writing, or to furnish transcriptions thereof, whether complete
or partial, to any other person: Provided, That the use of such record or any
copies thereof as evidence in any civil, criminal investigation or
trial of offenses mentioned in Section 3 hereof, shall not be covered by this
prohibition. . . . SEC. 4. Any communication or spoken word, or the existence,
contents, substance, purport, effect, or meaning of the same or any part thereof,
or any information therein contained obtained or secured by any person in
violation of the preceding sections of this Act shall not be admissible in evidence
in any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of private
communications. Since the exchange between petitioner Navarro and Lingan
was not private, its tape recording is not prohibited.
3. ID.; REVISED PENAL CODE; MITIGATING CIRCUMSTANCES;
SUFFICIENT PROVOCATION; DEFINED; TO BE SUFFICIENT, IT MUST BE
ADEQUATE TO EXCITE A PERSON TO COMMIT THE WRONG, WHICH
MUST ACCORDINGLY BE PROPORTIONATE IN GRAVITY; CASE AT BAR. —
It is argued that the mitigating circumstance of sufficient provocation or threat on
the part of the offended party immediately preceding the act should have been
appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust
or improper conduct or act of the offended party; capable of exciting, inciting, or
irritating anyone. The provocation must be sufficient and should immediately
precede the act. To be sufficient, it must be adequate to excite a person to
commit the wrong, which must accordingly be proportionate in gravity. And it
must immediately precede the act so much so that there is no interval between
the provocation by the offended party and the commission of the crime by the
accused. In the present case, the remarks of Lingan, which immediately
preceded the act of petitioner, constituted sufficient provocation. In People v.
Macaso, we appreciated this mitigating circumstance in favor of the accused, a
policeman, who shot a motorist after the latter had repeatedly taunted him with
defiant words. Hence, this mitigating circumstance should be considered in
favor of petitioner Navarro. DHaECI

4. ID.; ID.; HOMICIDE; PENALTY; AS THERE WERE TWO MITIGATING

CIRCUMSTANCES AND ONE AGGRAVATING CIRCUMSTANCE, THE
PENALTY SHOULD BE FIXED IN ITS MINIMUM PERIOD; CASE AT BAR. —
The crime committed as found by the trial court and the Court of Appeals was
homicide, for which the penalty under Art. 249 of the Revised Penal
Code is reclusion temporal. As there were two mitigating circumstances and one
aggravating circumstance, the penalty should be fixed in its minimum period.
Applying the Indeterminate Sentence Law, petitioner Navarro should be
sentenced to an indeterminate penalty, the minimum of which is within the
range of the penalty next lower in degree, i.e., prision mayor, and the
maximum of which is reclusion temporal in its minimum period.

DECISION

MENDOZA, J : p

This is a petition for review on certiorari of the

decision 1 of the Court of Appeals, dated December 14, 1994, which affirmed the
judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27,
1992, finding petitioner Felipe Navarro guilty beyond reasonable
doubt of homicide and sentencing him to ten (10) years of prision mayor, as
minimum, and fourteen (14) years, eight (8) months, and one (1) day of reclusion
temporal, as maximum, but increased the death indemnity awarded to the
heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00. LLphil

The information against petitioner alleged —

That on or about the 4th day of February, 1990, in the nighttime,
in the City of Lucena, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, being then a
member of the Lucena Integrated National Police, with intent to kill, did
then and there willfully, unlawfully and feloniously assault one Ike Lingan
inside the Lucena police headquarters, where authorities are supposed
to be engaged in the discharge of their duties, by boxing the said Ike
Lingan in the head with the butt of a gun and thereafter when the said
victim fell, by banging his head against the concrete pavement, as a
consequence of which said Ike Lingan suffered cerebral concussion and
shock which directly caused his death.
The evidence shows that, at around 8:40 in the evening of February 4,
1990, Stanley Jalbuena and Enrique "Ike" Lingan, who were reporters of the
radio station DWTI in Lucena City, together with one Mario Ilagan, went to the
Entertainment City following reports that it was showing nude dancers. After the
three had seated themselves at a table and ordered beer, a scantily clad dancer
appeared on stage and began to perform a strip act. As she removed her
brassieres, Jalbuena brought out his camera and took a picture. 2 dctai
 At that point, the floor manager, Dante Liquin, with a security guard, Alex
Sioco, approached Jalbuena and demanded to know why he took a
picture. 3 Jalbuena replied: "Wala kang pakialam, because this is my job." 4 Sioco
pushed Jalbuena towards the table as he warned the latter that he would kill
him. 5 When Jalbuena saw that Sioco was about to pull out his gun, he ran
out of the joint followed by his companions. 6
Jalbuena and his companions went to the police station to report the
matter. Three of the policemen on duty, including petitioner Navarro, were having
drinks in front of the police station, and they asked Jalbuena and his companions
to join them. Jalbuena declined and went to the desk officer, Sgt. Añonuevo, to
report the incident. In a while, Liquin and Sioco arrived on a motorcycle. 7
Sioco and Liquin were met by petitioner Navarro who talked with them in a
corner for around fifteen minutes. 8 Afterwards, petitioner Navarro turned to
Jalbuena and, pushing him to the wall, said to him: "Putang ina, kinakalaban mo
si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba
kilala?" 9 Petitioner Navarro then pulled out his firearm and cocked it, and,
pressing it on the face of Jalbuena, said, "Ano, uutasin na kita?" 10
At this point, Lingan intervened and said to petitioner Navarro: "Huwag
namang ganyan, pumarito kami para magpa-blotter, I am here to
mediate." 11 Petitioner Navarro replied: "Walang press, press, mag-sampu pa
kayo." 12 He then turned to Sgt. Añonuevo and told him to make of record the
behavior of Jalbuena and Lingan. 13 cda

This angered Lingan, who said: "O, di ilagay mo

diyan." 14 Petitioner Navarro retorted: "Talagang ilalagay ko." 15 The two then had
a heated exchange. 16 Finally, Lingan said: "Masyado kang abusado, alisin mo
yang baril mo at magsuntukan na lang tayo." 17 Petitioner Navarro replied: "Ah,
ganoon?" 18
As Lingan was about to turn away, petitioner Navarro hit him with the
handle of his pistol above the left eyebrow. Lingan fell on the floor, blood flowing
down his face. He tried to get up, but petitioner Navarro gave him a fist blow on
the forehead which floored him. 19
Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay
kang testigo, si Ike Lingan ang naghamon." 20 He said to Sgt. Añonuevo: "Ilagay
mo diyan sa blotter, sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang
naghamon." 21 He then poked his gun at the right temple of Jalbuena and made
him sign his name on the blotter. 22 Jalbuena could not affix his signature. His
right hand was trembling and he simply wrote his name in print. 23
Capt. Coronado, the station commander, called petitioner Navarro to his
office, while a policeman took Lingan to the Quezon Memorial Hospital. The
station manager of DWTI, Boy Casañada, arrived and, learning that Lingan had
been taken to the hospital, proceeded there. But Lingan died from his
injuries. 24
cdll

Unknown to petitioner Navarro, Jalbuena was able to record on tape the

exchange between petitioner and the deceased. 25 The following is an excerpt
from the tape recording:
Lingan:
Pare, you are abusing yourself.
Navarro:
Who is that abusing?
Lingan:
I’m here to mediate. Do not include me in the problem. I'm out of the
problem.
xxx xxx xxx
Navarro:
Wala sa akin yan. Ang kaso lang . . . .
Lingan:
Kalaban mo ang media, pare. Ako at si Stanley, dalawa kami. Okay. Do
not fight with me. I just came here to ayusin things. Do not say
bad things against me. I'm the number one loko sa media. I'm the
best media man. . . .
Navarro:
Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan!
Huwag mong sabihing loko ka!
Lingan:
I'm brave also.
Navarro:
Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa
akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko.
LibLex

Lingan:
You are challenging me and him. . . .
Navarro:
 Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita
na may balita tayong maganda. Pambihira ka Ike. Huwag mong
sabihin na . . . Parang minomonopoly mo eh.
Lingan:
Pati ako kalaban ninyo.
Navarro:
Talagang kalaban namin ang press. Lahat, hindi lang ikaw!
Lingan:
You are wrong. Bakit kalaban nyo ang press?
Navarro:
Pulis ito! Aba!
Lingan:
Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.
Navarro:
Mayabang ka ah!
(Sounds of a scuffle) LibLex

Navarro:
Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan,
testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare,
ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo,
hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang
inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako.
Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin
nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to hit
him twice, but he (petitioner) was able to duck both times, and that Lingan was
so drunk he fell on the floor twice, each time hitting his head on the concrete. 26
In giving credence to the evidence for the prosecution, the
trial court stated:
After a thorough and in-depth evaluation of the evidence adduced
by the prosecution and the defense, this court finds that the evidence for
the prosecution is the more credible, concrete and sufficient to create
that moral certainty in the mind of the court that accused herein is
criminally responsible. dctai
 The defense's evidence which consists of outright denial could
not under the circumstance overturn the strength of the prosecution's
evidence.
This court finds that the prosecution witnesses, more particularly
Stanley Jalbuena, lacked any motive to make false accusation, distort
the truth, testify falsehood or cause accusation of one who had neither
brought him harm or injury.
Going over the evidence on record, the postmortem report issued
by Dra. Eva Yamamoto confirms the detailed account given by Stanley
Jalbuena on how Lingan sustained head injuries.
Said post-mortem report together with the testimony of Jalbuena
sufficiently belie the claim of the defense that the head
injuries of deceased Lingan were caused by the latter's falling down on
the concrete pavement head first. LLpr

The Court of Appeals affirmed:

We are far from being convinced by appellant's aforesaid
disquisition. We have carefully evaluated the conflicting versions of the
incident as presented by both parties, and we find the trial court's factual
conclusions to have better and stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a
victim of appellant's aggression does not impair the probative
worth of his positive and logical account of the incident in question. In
fact, far from proving his innocence, appellant's unwarranted assault
upon Jalbuena, which the defense has virtually admitted, clearly betrays
his violent character or disposition and his capacity to harm others.
Apparently, the same motivation that led him into assailing Jalbuena
must have provoked him into also attacking Lingan who had interceded
for Jalbuena and humiliated him and further challenged him to a fist fight.
xxx xxx xxx
On the other hand, appellant's explanation as to how Lingan was
injured is too tenuous and illogical to be accepted. It is in fact
contradicted by the number, nature and location of Lingan's injuries as
shown in the post-mortem report (Exh. D). According to the defense,
Lingan fell two times when he was outbalanced in the course of boxing
the appellant. And yet, Lingan suffered lacerated wounds in his left
forehead, left eyebrow, between his left and right eyebrows, and
contusion in the right temporal region of the head (Exh. E). Certainly,
these injuries could not have resulted from Lingan's accidental fall.LLpr

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE
NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE
 DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A
FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE;
THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR
IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS
JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS
FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS
FINDING IS DEVOID OF SUPPORT IN THE RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the
testimony of Jalbuena on the ground that he was a biased witness, having a
grudge against him. The testimony of a witness who has an interest in the
conviction of the accused is not, for this reason alone, unreliable. 27 Trial courts,
which have the opportunity to observe the facial expressions, gestures, and
tones of voice of a witness while testifying, are competent to determine whether
his or her testimony should be given credence. 28 In the instant case,
petitioner Navarro has not shown that the trial court erred in according weight to
the testimony of Jalbuena. cdphil

Indeed, Jalbuena's testimony is confirmed by the voice recording he had

made. It may be asked whether the tape is admissible in view of R.A. No. 4200,
which prohibits wire tapping. The answer is in the affirmative. The law provides:
SECTION 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or spoken
word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape-
recorder, or however otherwise described: dctai

It shall also be unlawful for any person, be he a participant or not

in the act or acts penalized in the next preceding sentence, to knowingly
possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured
either before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other person or
persons; or to communicate the contents thereof, either verbally or in
writing, or to furnish transcriptions thereof, whether complete or partial,
to any other person: Provided, That the use of such record or any copies
thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be covered by this prohibition.
xxx xxx xxx
SECTION 4. Any communication or spoken word, or the
existence, contents, substance, purport, effect, or meaning of the same
or any part thereof, or any information therein contained obtained or
 secured by any person in violation of the preceding sections of this Act
shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
Thus, the law prohibits the overhearing, intercepting, or
recording of private communications. 29 Since the exchange between
petitioner Navarro and Lingan was not private, its tape recording is not
prohibited.
Nor is there any question that it was duly authenticated. A voice recording
is authenticated by the testimony of a witness (1) that he personally recorded the
conversation; (2) that the tape played in court was the one he recorded; and (3)
that the voices on the tape are those of the persons such are claimed to
belong. 30 In the instant case, Jalbuena testified that he personally made the
voice recording; 31 that the tape played in court was the one he recorded; 32 and
that the speakers on the tape were petitioner Navarro and Lingan. 33 A sufficient
foundation was thus laid for the authentication of the tape presented by the
prosecution. LLpr

Second. The voice recording made by Jalbuena established: (1) that there
was a heated exchange between petitioner Navarro and Lingan on the placing in
the police blotter of an entry against him and Jalbuena; and (2) that some
form of violence occurred involving petitioner Navarro and Lingan, with the latter
getting the worst of it.
Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the
body of Lingan, issued a medical certificate, 34 dated February 5, 1990,
containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral, eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the left & right
eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left
= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamoto testified:
Q Give your opinion as to what was the possible cause of this
findings number one, which is oozing of blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard object,
sir.
Q Could a metal like a butt of a gun have caused this wound No. 1?
A It is possible, sir.
Q And in the alternative, could have it been caused by bumping on a
concrete floor?
A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under
your findings No. 2 doctor?
WITNESS:
It may be caused by bumping to a hard object, sir.
Q Could a butt of a gun have caused it doctor? cdasia

A The swelling is big so it could have not been caused by a butt of a gun
because the butt of a gun is small, sir.
Q How about this findings No. 4?
A By a bump or contact of the body to a hard object, sir.
Q And findings No. 5 what could have caused it?
A Same cause, sir.
Q This findings No. 6 what could have caused this wound?
A Same thing, sir.
Q How about this last finding, cyanosis of tips of fingers and toes, what
could have caused it doctor?
WITNESS:
It indicates there was cardiac failure, sir.
FISCAL:
In this same post mortem report and under the heading cause of death
it states: Cause of Death: Cerebral concussion and Shock, will
you explain it?
 A Cerebral concussion means in Tagalog "naalog ang utak" or
jarring of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.
Q What about the shock, what could have caused it?
A It was due to peripheral circulatory failure, sir. LLphil

Q Could any one of both caused the death of the victim?

A Yes, sir.
Q Could cerebral concussion alone have caused the death of the
deceased?
A May be, sir.
Q How about shock?
A Yes, sir.
FISCAL:
Which of these two more likely to cause death?
WITNESS:
Shock, sir.
Q Please explain further the meaning of the medical term shock?
A It is caused by peripheral circulatory failure as I have said earlier, sir.
xxx xxx xxx
FISCAL:
Could a bumping or pushing of one's head against a concrete floor have
caused shock? Cdpr

WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir. 35
The above testimony clearly supports the claim of Jalbuena that
petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow
and struck him on the forehead with his fist. prLL

Third. It is argued that the mitigating circumstance of sufficient provocation

or threat on the part of the offended party immediately preceding the act should
have been appreciated in favor of petitioner Navarro. Provocation is defined to be
any unjust or improper conduct or act of the offended party, capable of exciting,
inciting, or irritating anyone. 36 The provocation must be sufficient and should
immediately precede the act. 37 To be sufficient, it must be adequate to excite a
person to commit the wrong, which must accordingly be proportionate in
gravity. 38 And it must immediately precede the act so much so that there
is no interval between the provocation by the offended party and the
commission of the crime by the accused. 39
In the present case, the remarks of Lingan, which immediately preceded
the act of petitioner, constituted sufficient provocation. In People v.
Macaso, 40 we appreciated this mitigating circumstance in favor of the accused, a
policeman, who shot a motorist after the latter had repeatedly taunted him with
defiant words. Hence, this mitigating circumstance should be considered in
favor of petitioner Navarro. Cdpr

Furthermore, the mitigating circumstance that the offender had no intention

to commit so grave a wrong as that committed should also be appreciated in
favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle
that it was Lingan who provoked him shows that he had no intent to kill the latter.
Thus, this mitigating circumstance should be taken into account in determining
the penalty that should be imposed on petitioner Navarro. The allowance of this
mitigating circumstance is consistent with the rule that criminal liability shall be
incurred by any person committing a felony although the wrongful act done be
different from that which he intended. 41 In People v. Castro, 42 the mitigating
circumstance of lack of intent to commit so grave a wrong as that committed was
appreciated in favor of the accused while finding him guilty of homicide.
However, the aggravating circumstance of commission of a crime in a
place where the public authorities are engaged in the discharge of their duties
should be appreciated against petitioner Navarro. The offense in this case was
committed right in the police station where policemen were discharging their
public functions. 43
The crime committed as found by the trial court and
the Court of Appeals was homicide, for which the penalty under Art.
249 of the Revised Penal Code is reclusion temporal. As there were two
mitigating circumstances and one aggravating circumstance, the penalty should
be fixed in its minimum period. 44 Applying the Indeterminate Sentence Law,
petitioner Navarro should be sentenced to an indeterminate penalty, the
minimum of which is within the range of the penalty next lower in
degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its
minimum period. 45 cdasia

The indemnity as increased by the Court of Appeals from P30,000.00 to

P50,000.00 is in accordance with current jurisprudence. 46
 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the
modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a
prison term of 8 years of prision mayor, as minimum, to 14 years and 8
months of reclusion temporal, as maximum.
SO ORDERED.
||| (Navarro v. Court of Appeals, G.R. No. 121087, [August 26, 1999], 372 PHIL 21-38)

Section 4

Freedom of Expression

Diocese of Bacolod vs. COMELEC, G.R. No. 205728, January 21, 2015

EN BANC

[G.R. No. 205728. January 21, 2015.]

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST

REV. BISHOP VICENTE M. NAVARRA and THE BISHOP
HIMSELF IN HIS PERSONAL
CAPACITY, petitioners, vs. COMMISSION ON ELECTIONS AN
D THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, respondents.

DECISION

LEONEN, J : p

"The Philippines is a democratic and

republican State. Sovereignty resides in the
people and all government authority
emanates from them." — Article II, Section
1, Constitution

All governmental authority emanates from our people. No unreasonable

restrictions of the fundamental and preferred right to expression of the electorate
during political contests no matter how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates
during elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens — who are not candidates — during elections.
Before us is a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining order 1 under
Rule 65 of the Rules of Court seeking to nullify COMELEC's Notice to Remove
Campaign Materials 2 dated February 22, 2013 and letter 3 issued on February
27, 2013. IDATCE

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod. Each
tarpaulin was approximately six feet (6') by ten feet (10') in size. They were
posted on the front walls of the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law" referring to the Reproductive Health
Law of 2012 or Republic Act No. 10354. The second tarpaulin is the
subject of the present case. 4
This tarpaulin contains the heading "Conscience Vote" and lists candidates
as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay"
with an "X" mark. 5 The electoral candidates were classified according to their
vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law. 6 Those who voted for the passing of the law were classified by petitioners
as comprising "Team Patay," while those who voted against it form "Team
Buhay": 7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was
neither sponsored nor paid for by any candidate. Petitioners also conceded that
the tarpaulin contains names of candidates for the 2013 elections, but
not of politicians who helped in the passage of the RH Law but were not
candidates for that election.
 On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her
capacity as Election Officer of Bacolod City, issued a Notice to Remove
Campaign Materials 8 addressed to petitioner Most Rev. Bishop Vicente M.
Navarra. The election officer ordered the tarpaulin's removal within three (3) days
from receipt for being oversized. COMELEC Resolution No. 9615 provides for
the size requirement of two feet (2') by three feet (3'). 9 HTCDcS

On February 25, 2013, petitioners replied 10 requesting, among others, that

(1) petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain. 11
On February 27, 2013, COMELEC Law Department issued a
letter 12 ordering the immediate removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against petitioners. The
letter of COMELEC Law Department was silent on the remedies available to
petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards the
election propaganda material posted on the church vicinity promoting for or against
the candidates and party-list groups with the following names and messages,
particularly described as follows:

Material size : six feet (6') by ten feet (10')

Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3)-day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in
violation of Comelec Resolution No. 9615 promulgated on January 15, 2013
particularly on the size (even with the subsequent division of the said tarpaulin into
two), as the lawful size for election propaganda material is only two feet (2') by
three feet (3'), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election offense
case against you.
We pray that the Catholic Church will be the first institution to help
the Commission on Elections in ensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
 [signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV 13

Concerned about the imminent threat of prosecution for their

exercise of free speech, petitioners initiated this case through this petition
for certiorari and prohibition with application for preliminary injunction and
temporary restraining order. 14 They question respondents' notice dated February
22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition
be given due course; (2) a temporary restraining order (TRO) and/or a
writ of preliminary injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the Team Patay tarpaulin;
and (3) after notice and hearing, a decision be rendered declaring the questioned
orders of respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order. 15 TaCDIc

After due deliberation, this court, on March 5, 2013, issued a temporary

restraining order enjoining respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19, 2013. 16
On March 13, 2013, respondents filed their comment 17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
before this court is not the proper remedy to question the notice and
letter of respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section
4 of the Constitution. Hence, respondents claim that the issuances ordering its
removal for being oversized are valid and constitutional. 18
During the hearing held on March 19, 2013, the parties were directed to file
their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays. 19
The issues, which also served as guide for the oral arguments, are: 20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION

OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY
THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A
REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING
APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS
ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER
 THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD
ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TO DETERMINE WHETHER THE

TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL
CANDIDATE[;]CAaDSI

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION

(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A
FORM OF EXPRESSION, WHETHER
THE COMELEC POSSESSES THE AUTHORITY TO REGULATE
THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION

OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY
THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS

TARPAULIN VIOLATES THE CONSTITUTIONAL
PRINCIPLE OF SEPARATION OF CHURCH AND STATE.

PROCEDURAL ISSUES

I.A
This court's jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the
notice and letter are not final orders, decisions, rulings, or
judgments of the COMELEC En Banc issued in the exercise of its adjudicatory
powers, reviewable via Rule 64 of the Rules of Court. 21
 Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65
is applicable especially to raise objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction. 22 As a special civil action, there must also
be a showing that there be no plain, speedy, and adequate remedy in the
ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power." 23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2 (3) of the Constitution 24 on COMELEC's power to decide
all questions affecting elections. 25 Respondents invoke the cases of Ambil,
Jr. v. COMELEC, 26 Repol v. COMELEC, 27 Soriano,
Jr. v. COMELEC, 28 Blanco v. COMELEC, 29 and Cayetano v. COMELEC, 30 to
illustrate how judicial intervention is limited to final decisions, orders, rulings and
judgments of the COMELEC En Banc. 31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial
race of Eastern Samar filed the election protest. 32 At issue was the
validity of the promulgation of a COMELEC Division resolution. 33 No motion for
reconsideration was filed to raise this issue before the COMELEC En Banc. This
court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution] 34 to
mean final orders, rulings and decisions of the COMELEC rendered in the
exercise of its adjudicatory or quasi-judicial powers." This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division. The Supreme Court has no power to review
via certiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections. 35 (Emphasis in the original, citations
omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this

court provided exceptions to this general rule. Repol was another election
protest case, involving the mayoralty elections in Pagsanghan, Samar. 36 This
time, the case was brought to this court because the COMELEC First Division
issued a status quo ante order against the Regional Trial Court executing its
decision pending appeal. 37 This court's ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory
orders of a COMELEC Division. 38 However, consistent with ABS-CBN
Broadcasting Corporation v. COMELEC, 39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement
[of filing a motion for reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the principle of social justice or the
 protection of labor, when the decision or resolution sought to be set aside is a
nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available. 40 SHADEC

Based on ABS-CBN, this court could review orders and

decisions of COMELEC — in electoral contests — despite not being
reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought to be set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repol and decided that the status
quo ante order issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC. This case was also an
election protest case involving candidates for the city council of Muntinlupa
City. 41 Petitioners in Soriano, Jr. filed before this court a petition
for certiorari against an interlocutory order of the COMELEC First
Division. 42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case. 43 Soriano applied the general
rule that only final orders should be questioned with this court. The ponencia for
this court, however, acknowledged the exceptions to the general rule in ABS-
CBN. 44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of Meycauayan,
Bulacan. 45 The COMELEC Second Division ruled that petitioner could not
qualify for the 2007 elections due to the findings in an administrative case that he
engaged in vote buying in the 1995 elections. 46 No motion for reconsideration
was filed before the COMELEC En Banc. This court, however, took
cognizance of this case applying one of the exceptions in ABS-CBN: The
assailed resolution was a nullity. 47
Finally, respondents cited Cayetano v. COMELEC, a recent election
protest case involving the mayoralty candidates of Taguig City. 48 Petitioner
assailed a resolution of the COMELEC denying her motion for reconsideration to
dismiss the election protest petition for lack of form and substance. 49 This court
clarified the general rule and refused to take cognizance of the
review of the COMELEC order. While recognizing the exceptions in ABS-
CBN, this court ruled that these exceptions did not apply. 50
 Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
respondents do not operate as precedents to oust this court from taking
jurisdiction over this case. All these cases cited involve election protests
or disqualification cases filed by the losing candidate against the winning
candidate.
In the present case, petitioners are not candidates seeking for public
office. Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained
to COMELEC's exercise of its adjudicatory or quasi-judicial power. This case
pertains to acts of COMELEC in the implementation of its regulatory
powers. When it issued the notice and letter, the COMELEC was
allegedly enforcing election laws.

I.B
Rule 65, grave abuse of discretion,
and limitations on political speech

The main subject of this case is an alleged constitutional violation: the

infringement on speech and the "chilling effect" caused by
respondent COMELEC's notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice 51 dated February
22, 2013 and letter 52 dated February 27, 2013 ordering the removal of the
tarpaulin. 53 It is their position that these infringe on their fundamental right to
freedom of expression and violate the principle of separation of church and state
and, thus, are unconstitutional. 54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the authority
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the
court and defines its powers." 55 Definitely, the subject matter in this case is
different from the cases cited by respondents.
Nothing less than the electorate's political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the desire to
be heard and understood, to move people to action. It is concerned with the
sovereign right to change the contours of power whether through the
election of representatives in a republican government or the revision of the basic
text of the Constitution. The zeal with which we protect this kind of speech does
not depend on our evaluation of the cogency of the message. Neither do we
assess whether we should protect speech based on the motives of COMELEC.
We evaluate restrictions on freedom of expression from their effects. We protect
both speech and medium because the quality of this freedom in practice will
define the quality of deliberation in our democratic society. cEaDTA

COMELEC's notice and letter affect preferred speech. Respondents' acts

are capable of repetition. Under the conditions in which it was issued and in
view of the novelty of this case, it could result in a "chilling effect" that would
affect other citizens who want their voices heard on issues during the elections.
Other citizens who wish to express their views regarding the election and other
related issues may choose not to, for fear of reprisal or sanction by
the COMELEC.
Direct resort to this court is allowed to avoid such proscribed conditions.
Rule 65 is also the procedural platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For
petitioners, it referred to this court's expanded exercise of certiorari as provided
by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. 56 (Emphasis
supplied)

On the other hand, respondents relied on its constitutional mandate to

decide all questions affecting elections. Article IX-C, Section 2
(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers
and functions:
xxx xxx xxx
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents' reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in
its exercise of jurisdiction, gravely abused it. We are confronted with the question
as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the
effect of COMELEC's notice and letter on free speech. This does not fall under
Article IX-C, Section 2 (3) of the Constitution. The use of the word "affecting" in
this provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and all questions that arise during elections. COMELEC's
constitutional competencies during elections should not operate to divest this
court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII,
Section 5 (1) of the Constitution. This provision provides for this court's original
jurisdiction over petitions for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is
grave abuse of discretion. Thus, the constitutionality of the notice and letter
coming from COMELEC is within this court's power to review.
During elections, we have the power and the duty to correct any grave
abuse of discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this court's constitutional mandate to protect the people against
government's infringement of their fundamental rights. This constitutional
mandate outweighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over
this case.

I.C
Hierarchy of courts

This brings us to the issue of whether petitioners violated the

doctrine of hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners' failure to file the proper suit with a
lower court of concurrent jurisdiction is sufficient ground for the dismissal of their
petition. 57 They add that observation of the hierarchy of courts is compulsory,
citing Heirs of Bertuldo Hinog v. Melicor. 58 While respondents claim that while
there are exceptions to the general rule on hierarchy of courts, none of these are
present in this case. 59
On the other hand, petitioners cite Fortich v. Corona 60 on this court's
discretionary power to take cognizance of a petition filed directly to it if warranted
by "compelling reasons, or [by] the nature and importance of the issues raised. . .
." 61 Petitioners submit that there are "exceptional and compelling reasons to
justify a direct resort [with] this Court." 62
aCTHDA

In Bañez, Jr. v. Concepcion, 63 we explained the necessity of the

application of the hierarchy of courts:
 The Court must enjoin the observance of the policy on the
hierarchy of courts, and now affirms that the policy is not to be ignored without
serious consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence of the
lower courts, and thus leave time to the Court to deal with the more fundamental
and more essential tasks that the Constitution has assigned to it. The Court may
act on petitions for the extraordinary writs of certiorari, prohibition
and mandamus only when absolutely necessary or when serious and important
reasons exist to justify an exception to the policy. 64

In Bañez, we also elaborated on the reasons why lower courts are allowed
to issue writs of certiorari, prohibition, and mandamus, citing Vergara v.
Suelto: 65
The Supreme Court is a court of last resort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter and
immemorial tradition. It cannot and should not be burdened with the task of dealing
with causes in the first instance. Its original jurisdiction to issue the so-called
extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the
Court of Appeals, or before constitutional or other tribunals, bodies or agencies
whose acts for some reason or another are not controllable by the
Court of Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of these
courts that the specific action for the writ's procurement must be presented. This is
and should continue to be the policy in this regard, a policy that courts and lawyers
must strictly observe. 66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created
by this court to ensure that every level of the judiciary performs its designated
roles in an effective and efficient manner. Trial courts do not only determine the
facts from the evaluation of the evidence presented before them. They are
likewise competent to determine issues of law which may include the
validity of an ordinance, statute, or even an executive issuance in relation to
the Constitution. 67 To effectively perform these functions, they are territorially
organized into regions and then into branches. Their writs generally reach within
those territorial boundaries. Necessarily, they mostly perform the all-important
task of inferring the facts from the evidence as these are physically presented
before them. In many instances, the facts occur within their territorial jurisdiction,
which properly present the 'actual case' that makes ripe a determination of the
constitutionality of such action. The consequences, of course, would be national
in scope. There are, however, some cases where resort to courts at their level
would not be practical considering their decisions could still be appealed before
the higher courts, such as the Court of Appeals. ECcTaS

The Court of Appeals is primarily designed as an appellate court that

reviews the determination of facts and law made by the trial courts. It is collegiate
in nature. This nature ensures more standpoints in the review of the
actions of the trial court. But the Court of Appeals also has original jurisdiction
over most special civil actions. Unlike the trial courts, its writs can have a
nationwide scope. It is competent to determine facts and, ideally, should
act on constitutional issues that may not necessarily be novel unless there are
factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground
or further reiterating — in the light of new circumstances or in the light of some
confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court's role to interpret the Constitution and
act in order to protect constitutional rights when these become exigent should not
be emasculated by the doctrine in respect of the hierarchy of courts. That has
never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule. 68 This
court has "full discretionary power to take cognizance and assume jurisdiction
[over] special civil actions for certiorari . . . filed directly with it for exceptionally
compelling reasons 69 or if warranted by the nature of the issues clearly and
specifically raised in the petition." 70 As correctly pointed out by petitioners, 71 we
have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine
issues of constitutionality that must be addressed at the most immediate time. A
direct resort to this court includes availing of the remedies of certiorari and
prohibition to assail the constitutionality of actions of both legislative and
executive branches of the government. 72
In this case, the assailed issuances of respondents prejudice not only
petitioners' right to freedom of expression in the present case, but also of others
in future similar cases. The case before this court involves an active effort on the
part of the electorate to reform the political landscape. This has become a rare
occasion when private citizens actively engage the public in political discourse.
To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a
technique for arriving at better social judgments through democratic
procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and
invigorated by the idea of new society in which man's mind was free, his
fate determined by his own powers of reason, and his prospects of creating
a rational and enlightened civilization virtually unlimited. It is put forward as
a prescription for attaining a creative, progressive, exciting and
intellectually robust community. It contemplates a mode of life that, through
encouraging toleration, skepticism, reason and initiative, will allow man to
 realize his full potentialities. It spurns the alternative of a society that is
tyrannical, conformist, irrational and stagnant. 73

In a democracy, the citizen's right to freely participate in the

exchange of ideas in furtherance of political decision-making is recognized. It
deserves the highest protection the courts may provide, as public participation in
nation-building is a fundamental principle in our Constitution. As such, their right
to engage in free expression of ideas must be given immediate protection by this
court.
A second exception is when the issues involved are of transcendental
importance. 74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly faced with the need
for substantial protection.
In the case before this court, there is a clear threat to the paramount
right of freedom of speech and freedom of expression which warrants
invocation of relief from this court. The principles laid down in this decision will
likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for
one's chosen candidate, but also the right to vocalize that choice to the public in
general, in the hope of influencing their votes. It may be said that in an election
year, the right to vote necessarily includes the right to free speech and
expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
Third, cases of first impression 75 warrant a direct resort to this court. In
cases of first impression, no jurisprudence yet exists that will guide the lower
courts on this matter. In Government of the United States v. Purganan, 76 this
court took cognizance of the case as a matter of first impression that may guide
the lower courts: IcDHaT

In the interest of justice and to settle once and for all the important
issue of bail in extradition proceedings, we deem it best to take cognizance of the
present case. Such proceedings constitute a matter of first impression over which
there is, as yet, no local jurisprudence to guide lower courts. 77

This court finds that this is indeed a case of first impression involving as it
does the issue of whether the right of suffrage includes the
right of freedom of expression. This is a question which this court has yet to
provide substantial answers to, through jurisprudence. Thus, direct resort to this
court is allowed.
Fourth, the constitutional issues raised are better decided by this court.
In Drilon v. Lim, 78 this court held that:
 . . . it will be prudent for such courts, if only out of a becoming modesty, to
defer to the higher judgment of this Court in the consideration of its validity, which
is better determined after a thorough deliberation by a collegiate body and with the
concurrence of the majority of those who participated in its discussion. 79 (Citation
omitted)

In this case, it is this court, with its constitutionally enshrined judicial power,
that can rule with finality on whether COMELEC committed grave
abuse of discretion or performed acts contrary to the Constitution through the
assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case
was filed during the 2013 election period. Although the elections have already
been concluded, future cases may be filed that necessitate urgency in its
resolution. Exigency in certain situations would qualify as an exception for direct
resort to this court.
Sixth, the filed petition reviews the act of a constitutional
organ. COMELEC is a constitutional body. In Albano v. Arranz, 80 cited by
petitioners, this court held that "[i]t is easy to realize the chaos that would ensue if
the Court of First Instance of each and every province were [to] arrogate itself the
power to disregard, suspend, or contradict any
order of the Commission on Elections: that constitutional body would be speedily
reduced to impotence." 81
In this case, if petitioners sought to annul the
actions of COMELEC through pursuing remedies with the lower courts, any
ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, this court affords great
respect to the Constitution and the powers and duties imposed upon COMELEC.
Hence, a ruling by this court would be in the best interest of respondents, in order
that their actions may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents' acts in violation of their right to
freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to this
court. The lack of other sufficient remedies in the course of law alone is sufficient
ground to allow direct resort to this court.
Eighth, the petition includes questions that are "dictated by public welfare
and the advancement of public policy, or demanded by the broader
interest of justice, or the orders complained of were found to be patent nullities,
or the appeal was considered as clearly an inappropriate remedy." 82 In the past,
questions similar to these which this court ruled on immediately despite the
doctrine of hierarchy of courts included citizens' right to bear arms, 83 government
contracts involving modernization of voters' registration lists, 84 and the status
and existence of a public office. 85
This case also poses a question of similar, if not greater import. Hence, a
direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the
same time to justify a direct resort to this court. While generally, the
hierarchy of courts is respected, the present case falls under the recognized
exceptions and, as such, may be resolved by this court directly.

I.D
The concept of a political question

Respondents argue further that the size limitation and its reasonableness
is a political question, hence not within the ambit of this court's power of review.
They cite Justice Vitug's separate opinion in Osmeña v. COMELEC 86 to support
their position:
It might be worth mentioning that Section 26, Article
II, of the Constitution also states that the "State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as may be defined
by law." I see neither Article IX (C)(4) nor Section 26, Article
II, of the Constitution to be all that adversarial or irreconcilably inconsistent with the
right of free expression. In any event, the latter, being one of general application,
must yield to the specific demands of the Constitution. The freedom of expression
concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.
cDTCIA

The case is not about a fight between the "rich" and the "poor" or between
the "powerful" and the "weak" in our society but it is to me a genuine attempt on the
part of Congress and the Commission on Elections to ensure that all candidates
are given an equal chance to media coverage and thereby be equally perceived as
giving real life to the candidates' right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the enactment of the
law, i.e., that which the legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies
beyond the normal prerogatives of the Court to pass upon. 87

This separate opinion is cogent for the purpose it was said. But it is not in
point in this case.
The present petition does not involve a dispute between the rich and poor,
or the powerful and weak, on their equal opportunities for media
coverage of candidates and their right to freedom of expression. This case
concerns the right of petitioners, who are non-candidates, to post the tarpaulin in
their private property, as an exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Tañada v. Cuenco, 88 this court previously elaborated on the
concept of what constitutes a political question:
What is generally meant, when it is said that a question is political,
and not judicial, is that it is a matter which is to be exercised by the people
in their primary political capacity, or that it has been specifically delegated
to some other department or particular officer of the government, with
discretionary power to act. 89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the
text of the law should be. In political forums, particularly the legislature, the
creation of the text of the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for general application by the
executive branch. Thus, the creation of the law is not limited by particular and
specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing
facts established on a specific case-to-case basis, where parties affected by the
legal provision seek the courts' understanding of the law.
The complementary nature of the political and judicial
branches of government is essential in order to ensure that the rights of the
general public are upheld at all times. In order to preserve this balance,
branches of government must afford due respect and deference for the duties
and functions constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful not to veto political
acts unless we can craft doctrine narrowly tailored to the circumstances of the
case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court through
the expanded jurisdiction granted to this court through Article VIII, Section
1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or
those of the legislature. The political question doctrine is used as a defense when
the petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so capricious and
arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial
review when the act of a constitutional organ infringes upon a fundamental
individual or collective right. Even assuming arguendo that the COMELEC did
have the discretion to choose the manner of regulation of the tarpaulin in
question, it cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus 90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its nature
or by law is for the latter alone to decide. 91

How this court has chosen to address the political question doctrine has
undergone an evolution since the time that it had been first invoked in Marcos v.
Manglapus. Increasingly, this court has taken the historical and social
context of the case and the relevance of pronouncements of carefully and
narrowly tailored constitutional doctrines. This trend was followed in cases such
as Daza v. Singson 92 and Coseteng v. Mitra, Jr. 93 CacTSI

Daza and Coseteng involved a question as to the application of Article VI,

Section 18 of the 1987 Constitution involving the removal of petitioners from
the Commission on Appointments. In times past, this would have involved a
quintessentially political question as it related to the dominance of political parties
in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by which a constitutional
duty or power was exercised. This approach was again reiterated in Defensor
Santiago v. Guingona, Jr. 94
In Integrated Bar of the Philippines v. Zamora, 95 this court declared again
that the possible existence of a political question did not bar an
examination of whether the exercise of discretion was done with grave
abuse of discretion. In that case, this court ruled on the question of whether there
was grave abuse of discretion in the President's use of his power to call out the
armed forces to prevent and suppress lawless violence.
In Estrada v. Desierto, 96 this court ruled that the legal question as to
whether a former President resigned was not a political question even if the
consequences would be to ascertain the political legitimacy of a successor
President.
Many constitutional cases arise from political crises. The actors in such
crises may use the resolution of constitutional issues as leverage. But the
expanded jurisdiction of this court now mandates a duty for it to exercise its
power of judicial review expanding on principles that may avert catastrophe or
resolve social conflict.
 This court's understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos, 97 this court held:
While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its exercise, it
is also a settled rule that when the issue involved concerns the validity of such
discretionary powers or whether said powers are within the limits prescribed by
the Constitution, We will not decline to exercise our power of judicial review. And
such review does not constitute a modification or correction of the act of the
President, nor does it constitute interference with the functions of the President. 98

The concept of judicial power in relation to the concept of the political

question was discussed most extensively in Francisco v. HRET. 99 In this case,
the House of Representatives argued that the question of the validity of the
second impeachment complaint that was filed against former Chief Justice Hilario
Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of judicial
power as including "the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government." As well observed by retired Justice Isagani Cruz, this expanded
definition of judicial power considerably constricted the scope of political question.
He opined that the language luminously suggests that this duty (and power) is
available even against the executive and legislative departments including the
President and the Congress, in the
exercise of their discretionary powers. 100 (Emphasis in the original, citations
omitted)

Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice
Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
Court, under previous constitutions, would have normally left to the political
departments to decide. . . .
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court
must perform under the Constitution. Moreover, as held in a recent case,
"(t)he political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision
 by no means does away with the applicability of the principle in appropriate
cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled: TDEASC

In the case now before us, the jurisdictional objection becomes

even less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature, we
would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question. . . . (Emphasis and italics supplied.)
xxx xxx xxx
In our jurisdiction, the determination of whether an issue involves a truly
political and non-justiciable question lies in the answer to the question of whether
there are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether
the branch or instrumentality of the government properly acted within such
limits. 101 (Citations omitted)

As stated in Francisco, a political question will not be considered

justiciable if there are no constitutionally imposed limits on powers or functions
conferred upon political bodies. Hence, the existence of constitutionally imposed
limits justifies subjecting the official actions of the body to the scrutiny and
review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to
free speech. Any instance that this right may be abridged demands judicial
scrutiny. It does not fall squarely into any doubt that a political question brings.

I.E
Exhaustion of administrative remedies

Respondents allege that petitioners violated the

principle of exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En Banc or
any of its divisions. 102
Respondents point out that petitioners failed to comply with the
requirement in Rule 65 that "there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law." 103 They add that the proper
venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC. 104 In the event that an
election offense is filed against petitioners for posting the tarpaulin, they claim
that petitioners should resort to the remedies prescribed in Rule
34 of the COMELEC Rules of Procedure. 105
 The argument on exhaustion of administrative remedies is not proper in
this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear
that the controversy is already ripe for adjudication. Ripeness is the "prerequisite
that something had by then been accomplished or performed by either branch [or
in this case, organ of government] before a court may come into the picture." 106
Petitioners' exercise of their right to speech, given the message and their
medium, had understandable relevance especially during
the elections. COMELEC's letter threatening the filing of the election offense
against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners' speech.
In the context of this case, exhaustion of their administrative remedies
as COMELEC suggested in their pleadings prolongs the violation of their
freedom of speech.
Political speech enjoys preferred protection within our constitutional order.
In Chavez v. Gonzales, 107 Justice Carpio in a separate opinion
emphasized: "[i]f ever there is a hierarchy of protected expressions,
political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would
be at the top." 108 Sovereignty resides in the people. 109 Political speech is a
direct exercise of the sovereignty. The principle of exhaustion of administrative
remedies yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative remedies
is applicable, the current controversy is within the exceptions to the principle.
In Chua v. Ang, 110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a) when
there is a violation of due process; (b) when the issue involved is purely a legal
question; (c) when the administrative action is patently illegal amounting to lack or
excess of jurisdiction; (d) when there is estoppel on the part of the administrative
agency concerned; (e) when there is irreparable injury; (f) when the respondent is
a department secretary whose acts as an alter ego of the President bear the
implied and assumed approval of the latter; (g) when to require
exhaustion of administrative remedies would be unreasonable; (h) when it would
amount to a nullification of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) when the rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the
urgency of judicial intervention." 111 (Emphasis supplied, citation omitted)HEcSDa

The circumstances emphasized are squarely applicable with the present

case. First, petitioners allege that the assailed issuances violated their right to
freedom of expression and the principle of separation of church and state. This is
a purely legal question. Second, the circumstances of the present case indicate
the urgency of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of administrative
remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or
suspend the rules or to except a case from their operation when compelling
reasons so warrant, or when the purpose of justice requires it, [and when] [w]hat
constitutes [as] good and sufficient cause that will merit suspension of the rules is
discretionary upon the court". 112 Certainly, this case of first impression
where COMELEC has threatened to prosecute private parties who seek to
participate in the elections by calling attention to issues they want debated by the
public in the manner they feel would be effective is one of those cases.

II

SUBSTANTIVE ISSUES

II.A
COMELEC had no legal basis
to regulate expressions
made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their

position that they had the power to regulate the tarpaulin. 113 However,
all of these provisions pertain to candidates and political parties. Petitioners are
not candidates. Neither do they belong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which

provides: TcSAaH

Section 4. The Commission may, during the election period,

supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and
forums among candidates in connection with the objective of holding free,
orderly, honest, peaceful, and credible elections. 114 (Emphasis supplied)
 Sanidad v. COMELEC 115 involved the rules promulgated
by COMELEC during the plebiscite for the creation of the Cordillera Autonomous
Region. 116 Columnist Pablito V. Sanidad questioned the provision prohibiting
journalists from covering plebiscite issues on the day before and on plebiscite
day. 117 Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ." 118 We held that
the "evil sought to be prevented by this provision is the possibility that a franchise
holder may favor or give any undue advantage to a candidate in
terms of advertising space or radio or television time." 119 This court found that
"[m]edia practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates[,]" 120 thus, their right
to expression during this period may not be regulated by COMELEC. 121
Similar to the media, petitioners in the case at bar are neither franchise
holders nor candidates.

II.A.2

Respondents likewise cite Article IX-C, Section 2 (7) of the Constitution as

follows: 122
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
xxx xxx xxx
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance
candidates. (Emphasis supplied) ITDSAE

Based on the enumeration made on acts that may be penalized, it will be

inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued
by COMELEC. This was followed by the assailed letter regarding the "election
propaganda material posted on the church vicinity promoting for or against the
candidates and party-list groups. . . ." 123 Section 9 of the Fair Election
Act 124 on the posting of campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. — The COMELEC may
authorize political parties and party-list groups to erect common poster
areas for their candidates in not more than ten (10) public places such as
plazas, markets, barangay centers and the like, wherein candidates can
post, display or exhibit election propaganda: Provided, That the size of the
poster areas shall not exceed twelve (12) by sixteen (16) feet or its
equivalent.
 Independent candidates with no political parties may likewise be
authorized to erect common poster areas in not more than ten (10) public
places, the size of which shall not exceed four (4) by six (6) feet or its
equivalent.
Candidates may post any lawful propaganda material in private
places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the
candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and

regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. — Parties and
candidates may post any lawful campaign material in:
a. Authorized common poster areas in public places subject to the requirements
and/or limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these
Rules and the like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the
posting of campaign materials outside the common poster areas if they do
not remove the same within three (3) days from notice which shall be
issued by the Election Officer of the city or municipality where the unlawful
election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the
Election Officer or other officials of the COMELEC shall apprehend the
violators caught in the act, and file the appropriate charges against them.
(Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their

issuances. The above provisions regulating the posting of campaign materials
only apply to candidates and political parties, and petitioners are neither of the
two.
Section 3 of Republic Act No. 9006 on "Lawful Election Propaganda" also
states that these are "allowed for all registered political parties, national, regional,
sectoral parties or organizations participating under the party-list elections and
for all bona fide candidates seeking national and local elective positions subject
to the limitation on authorized expenses of candidates and political parties. . . ."
Section 6 of COMELEC Resolution No. 9615 provides for a similar wording.
These provisions show that election propaganda refers to matter done by
or on behalf of and in coordination with candidates and political parties. Some
level of coordination with the candidates and political parties for whom the
election propaganda are released would ensure that these candidates and
political parties maintain within the authorized expenses limitation.
 The tarpaulin was not paid for by any candidate or political party. 125 There
was no allegation that petitioners coordinated with any of the persons named in
the tarpaulin regarding its posting. On the other hand, petitioners posted the
tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC 126 in arguing
that its regulatory power under the Constitution, to some extent, set a limit on the
right to free speech during election period. 127 IDSaAH

National Press Club involved the prohibition on the sale and

donation of space and time for political advertisements, limiting political
advertisements to COMELEC-designated space and time. This case was brought
by representatives of mass media and two candidates for office in the
1992 elections. They argued that the prohibition on the sale and
donation of space and time for political advertisements is tantamount to
censorship, which necessarily infringes on the freedom of speech of the
candidates. 128
This court upheld the constitutionality of the COMELEC prohibition
in National Press Club. However, this case does not apply as most of the
petitioners were electoral candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club, Section 11 (b) of Republic
Act No. 6646, 129 only refers to a particular kind of media such as newspapers,
radio broadcasting, or television. 130 Justice Feliciano emphasized that the
provision did not infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their qualifications, and
program for government. Compared to Sanidad wherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National
Press Club does not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice and
letter. It was not merely a regulation on the campaigns of candidates vying for
public office. Thus, National Press Club does not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as
the Omnibus Election Code, defines an "election campaign" as follows:
xxx xxx xxx
(b) The term "election campaign" or "partisan political activity"
refers to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
 (2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a
candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
The foregoing enumerated acts if performed for the
purpose of enhancing the chances of aspirants for nomination for
candidacy to a public office by a political party, aggroupment, or
coalition of parties shall not be considered as election campaign or partisan
election activity.
Public expressions or opinions or discussions of probable issues in
a forthcoming election or on attributes of or criticisms against probable
candidates proposed to be nominated in a forthcoming political party
convention shall not be construed as part of any election campaign or
partisan political activity contemplated under this Article. (Emphasis
supplied)

True, there is no mention whether election campaign is limited only to the

candidates and political parties themselves. The focus of the definition is that the
act must be "designed to promote the election or defeat of a particular candidate
or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern,
that is, a statement of either appreciation or criticism on votes made in the
passing of the RH law. Thus, petitioners invoke their right to
freedom of expression.

II.B
The violation of the constitutional right
to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the
removal of the tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under Article IX-
C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering its
removal for being oversized are valid and constitutional. 131

II.B.1
 Fundamental to the consideration of this issue is Article III, Section
4 of the Constitution: TSIDaH

Section 4. No law shall be passed abridging the

freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for
redress of grievances. 132

No law. . .
While it is true that the present petition assails not a law but an opinion by
the COMELEC Law Department, this court has applied Article III, Section
4 of the Constitution even to governmental acts.
In Primicias v. Fugoso, 133 respondent Mayor applied by analogy Section
1119 of the Revised Ordinances of 1927 of Manila for the public meeting and
assembly organized by petitioner Primicias. 134 Section 1119 requires a Mayor's
permit for the use of streets and public places for purposes such as athletic
games, sports, or celebration of national holidays. 135 What was questioned was
not a law but the Mayor's refusal to issue a permit for the holding of petitioner's
public meeting. 136 Nevertheless, this court recognized the constitutional right to
freedom of speech, to peaceful assembly and to petition for
redress of grievances, albeit not absolute, 137 and the petition for mandamus to
compel respondent Mayor to issue the permit was granted. 138
In ABS-CBN v. COMELEC, what was assailed was not a law
but COMELEC En Banc Resolution No. 98-1419 where the COMELEC resolved
to approve the issuance of a restraining order to stop ABS-CBN from conducting
exit surveys. 139 The right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified and set aside. 140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on speech must
be weighed against a compelling state interest clearly allowed in the Constitution.
The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press provided in
the US Constitution. The word "expression" was added in the 1987
Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA:
 This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line
29, it says: "No law shall be passed abridging the freedom of speech." I
would like to recommend to the Committee the change of the word
"speech" to EXPRESSION; or if not, add the words AND EXPRESSION
after the word "speech," because it is more expansive, it has a wider
scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr. Bengzon):
What does the Committee say?
FR. BERNAS:
"Expression" is more broad than speech. We accept it.
MR. BROCKA:
Thank you.
THE PRESIDING OFFICER (Mr. Bengzon):
Is it accepted?
FR. BERNAS:
Yes.
THE PRESIDING OFFICER (Mr. Bengzon):
Is there any objection? (Silence) The Chair hears none; the amendment is
approved.
FR. BERNAS:
So, that provision will now read: "No law shall be passed abridging the
freedom of speech, expression or of the press. . . ." 141

Speech may be said to be inextricably linked to freedom itself as "[t]he

right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought." 142

II.B.2

Communication is an essential outcome of protected speech. 143 ADEHTS

Communication exists when "(1) a speaker, seeking to signal others, uses

conventional actions because he or she reasonably believes that such actions
will be taken by the audience in the manner intended; and (2) the audience so
takes the actions." 144 "[I]n communicative action[,] the hearer may respond to the
claims by . . . either accepting the speech act's claims or opposing them with
criticism or requests for justification." 145
Speech is not limited to vocal communication. "[C]onduct is treated as a
form of speech sometimes referred to as 'symbolic speech[,]'" 146 such that
"'when 'speech' and 'nonspeech' elements are combined in the same
course of conduct,' the 'communicative element' of the conduct may be 'sufficient
to bring into play the [right to freedom of expression].'" 147
The right to freedom of expression, thus, applies to the entire
continuum of speech from utterances made to conduct enacted, and even
to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division
Superintendent of Schools of Cebu, 148 students who were members of the
religious sect Jehovah's Witnesses were to be expelled from school for refusing
to salute the flag, sing the national anthem, and recite the patriotic pledge. 149 In
his concurring opinion, Justice Cruz discussed how the salute is a symbolic
manner of communication and a valid form of expression. 150 He adds that
freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said
that the Bill of Rights that guarantees to the individual the liberty to utter what is in
his mind also guarantees to him the liberty not to utter what is not in his mind. The
salute is a symbolic manner of communication that conveys its message as clearly
as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion bids them to be silent. This
coercion of conscience has no place in the free society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of unorthodox or unpopular views as
in this case. The conscientious objections of the petitioners, no less than the
impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels. 151

Even before freedom "of expression" was included in Article III, Section
4 of the present Constitution, this court has applied its precedent version to
expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak, 152 petitioners
objected to the classification of the motion picture "Kapit sa Patalim" as "For
Adults Only." They contend that the classification "is without legal and factual
basis and is exercised as impermissible restraint of artistic expression." 153 This
court recognized that "[m]otion pictures are important both as a medium
for the communication of ideas and the expression of the artistic
impulse." 154 It adds that "every writer, actor, or producer, no matter what
medium of expression he may use, should be freed from the
censor." 155 This court found that "[the Board's] perception of what constitutes
obscenity appears to be unduly restrictive." 156 However, the petition was
dismissed solely on the ground that there were not enough votes for a
ruling of grave abuse of discretion in the classification made by the Board. 157
 II.B.3

Size does matter

The form of expression is just as important as the information conveyed
that it forms part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows
larger fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary person's perspective, those who post
their messages in larger fonts care more about their message than those who
carry their messages in smaller media. The perceived importance given by the
speakers, in this case petitioners, to their cause is also part of the message. The
effectivity of communication sometimes relies on the emphasis put by the
speakers and on the credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the point made by
authoritative figures when they make the effort to emphasize their messages. cACTaI

Third, larger spaces allow for more messages. Larger spaces, therefore,
may translate to more opportunities to amplify, explain, and argue points which
the speakers might want to communicate. Rather than simply placing the names
and images of political candidates and an expression of support, larger spaces
can allow for brief but memorable presentations of the candidates' platforms for
governance. Larger spaces allow for more precise inceptions of ideas, catalyze
reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both good
governance and accountability in our government.
These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms of public
discussion during elections are framed and kept hostage by brief and catchy but
meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the electorate, the latter have the
better incentive to demand discussion of the more important issues. Between the
candidates and the electorate, the former have better incentives to avoid difficult
political standpoints and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place. 158 They
are fundamentally part of expression protected under Article III, Section
4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need
to protect the basic right to freedom of expression.
First, this relates to the right of the people to participate in public
affairs, including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue is a critical, and indeed defining,
feature of a good polity." 159 This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation of all who will be
affected by the decision." 160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people. 161 To
ensure order in running the state's affairs, sovereign powers were delegated and
individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may
evolve to the right of the people to make government accountable. Necessarily,
this includes the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on public affairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed
remedies." 162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs." 163 This court has, thus, adopted the principle that "debate on public
issues should be uninhibited, robust, and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials." 164
Second, free speech should be encouraged under the concept of a
market place of ideas. This theory was articulated by Justice Holmes in that
"the ultimate good desired is better reached by [the] free trade in ideas:" 165
 When men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas — that the best test of truth is the
power of the thought to get itself accepted in the competition of the market,
and that truth is the only ground upon which their wishes safely can be
carried out. 166

The way it works, the exposure to the ideas of others allows one to
"consider, test, and develop their own conclusions." 167 A free, open, and
dynamic market place of ideas is constantly shaping new ones. This promotes
both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing
political beliefs and economic arrangements as it includes, "[t]o paraphrase
Justice Holmes, [the] freedom for the thought that we hate, no less than for the
thought that agrees with us." 168 In fact, free speech may "best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." 169 It is in this context that
we should guard against any curtailment of the people's right to participate in the
free trade of ideas.aTEHCc

Third, free speech involves self-expression that enhances human

dignity. This right is "a means of assuring individual self-fulfillment," 170 among
others. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc., 171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not
only civil rights but also political rights essential to man's enjoyment of his
life, to his happiness and to his full and complete fulfillment. Thru these
freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the
administration of public affairs as well as in the discipline of abusive public
officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as
well as for the imposition of the lawful sanctions on erring public officers
and employees. 172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary

associations perform [an] important democratic role [in providing] forums for the
development of civil skills, for deliberation, and for the formation of identity and
community spirit[,] [and] are largely immune from [any] governmental
interference." 173 They also "provide a buffer between individuals and the state —
a free space for the development of individual personality, distinct group identity,
and dissident ideas — and a potential source of opposition to the state." 174 Free
speech must be protected as the vehicle to find those who have similar and
shared values and ideals, to join together and forward common goals.
 Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through
[the] framework [of democratic governance]." 175 Federalist framers led by
James Madison were concerned about two potentially vulnerable groups: "the
citizenry at large — majorities — who might be tyrannized or plundered by
despotic federal officials" 176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the] government for their own
selfish ends[.]" 177 According to Madison, "[i]t is of great importance in a republic
not only to guard the society against the oppression of its rulers, but to guard one
part of the society against the injustice of the other part." 178 We should strive to
ensure that free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve
theory. 179 This provides that "nonviolent manifestations of dissent reduce
the likelihood of violence[.]" 180 "[A] dam about to burst . . . resulting in the
'banking up of a menacing flood of sullen anger behind the
walls of restriction'" 181 has been used to describe the effect of repressing
nonviolent outlets. 182 In order to avoid this situation and prevent people from
resorting to violence, there is a need for peaceful methods in making passionate
dissent. This includes "free expression and political participation" 183 in that they
can "vote for candidates who share their views, petition their legislatures to
[make or] change laws, . . . distribute literature alerting other citizens of their
concerns[,]" 184 and conduct peaceful rallies and other similar acts. 185 Free
speech must, thus, be protected as a peaceful means of achieving one's goal,
considering the possibility that repression of nonviolent dissent may spill over to
violent means just to drive a point.

II.B.5

Every citizen's expression with political consequences enjoys a high

degree of protection.
Respondents argue that the tarpaulin is election propaganda, being
petitioners' way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it. 186 As such, it is subject to regulation
by COMELEC under its constitutional mandate. 187 Election propaganda is
defined under Section 1 (4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions. — . . .
xxx xxx xxx
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in
any medium, which contain the name, image, logo, brand, insignia,
 color motif, initials, and other symbol or graphic representation that
is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof to
promote or oppose, directly or indirectly, the election of the said
candidate or candidates to a public office. In broadcast media,
political advertisements may take the form of spots,
appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the
scope of personal opinion, that appear on any Internet website,
including, but not limited to, social networks, blogging sites, and
micro-blogging sites, in return for consideration, or otherwise
capable of pecuniary estimation. acITSD

On the other hand, petitioners invoke their "constitutional right to

communicate their opinions, views and beliefs about issues and
candidates." 188 They argue that the tarpaulin was their statement of approval
and appreciation of the named public officials' act of voting against the RH Law,
and their criticism toward those who voted in its favor. 189 It was "part of their
advocacy campaign against the RH Law," 190 which was not paid for by any
candidate or political party. 191 Thus, "the questioned orders which . . . effectively
restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void." 192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values." 193 These rights enjoy
precedence and primacy. 194 In Philippine Blooming Mills, this court discussed
the preferred position occupied by freedom of expression:
Property and property rights can be lost thru prescription; but human rights
are imprescriptible. If human rights are extinguished by the passage of time, then
the Bill of Rights is a useless attempt to limit the power of government and ceases
to be an efficacious shield against the tyranny of officials, of majorities, of the
influential and powerful, and of oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression
and of assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and such priority "gives
these liberties the sanctity and the sanction not permitting dubious
intrusions." 195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage." 196 A similar idea appeared in our jurisprudence as early
as 1969, which was Justice Barredo's concurring and dissenting opinion
in Gonzales v. COMELEC: 197
I like to reiterate over and over, for it seems this is the fundamental point
others miss, that genuine democracy thrives only where the power and right of the
 people to elect the men to whom they would entrust the privilege to run the
affairs of the state exist. In the language of the
declaration of principles of our Constitution, "The Philippines is a republican state.
Sovereignty resides in the people and all government authority emanates from
them" (Section 1, Article II). Translating this declaration into actuality, the
Philippines is a republic because and solely because the people in it can be
governed only by officials whom they themselves have placed in office by their
votes. And in it is on this cornerstone that I hold it to be self-evident that when the
freedoms of speech, press and peaceful assembly and redress of grievances are
being exercised in relation to suffrage or as a means to enjoy the inalienable
right of the qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of public affairs by
our officials must be allowed to suffer incessant and unabating scrutiny, favorable
or unfavorable, everyday and at all times. Every holder of power in our government
must be ready to undergo exposure any moment of the day or night,
from January to December every year, as it is only in this way that he can rightfully
gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people
only at certain periods of time. I consider the freedoms of speech, press and
peaceful assembly and redress of grievances, when exercised in the
name of suffrage, as the very means by which the right itself to vote can only be
properly enjoyed. It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or
time. 198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be injurious to the equal
right of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political
speech, may vary from those of another, e.g., obscene speech. Distinctions have
therefore been made in the treatment, analysis, and evaluation of the permissible
scope of restrictions on various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene speech, as well as
"fighting words" are not entitled to constitutional protection and may be
penalized. 199 (Citations omitted)

We distinguish between political and commercial speech. Political speech

refers to speech "both intended and received as a contribution to public
deliberation about some issue," 200 "foster[ing] informed and civic-minded
deliberation." 201 On the other hand, commercial speech has been defined as
speech that does "no more than propose a commercial transaction." 202 cDCaTS

The expression resulting from the content of the tarpaulin is, however,
definitely political speech.
In Justice Brion's dissenting opinion, he discussed that "[t]he content of the
tarpaulin, as well as the timing of its posting, makes it subject of the regulations
in RA 9006 and Comelec Resolution No. 9615." 203 He adds that "[w]hile indeed
the RH issue, by itself, is not an electoral matter, the slant that the petitioners
gave the issue converted the non-election issue into a live election one hence,
Team Buhay and Team Patay and the plea to support one and oppose the
other." 204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted "in return for consideration"
by any candidate, political party, or party-list group.
The second paragraph of Section 1 (4) of COMELEC Resolution No. 9615,
or the rules and regulations implementing Republic Act No. 9006 as an aid to
interpret the law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in
any medium, which contain the name, image, logo, brand, insignia,
color motif, initials, and other symbol or graphic representation that
is capable of being associated with a candidate or party, and is
intended to draw the attention of the public or a segment thereof to
promote or oppose, directly or indirectly, the election of the said
candidate or candidates to a public office. In broadcast media,
political advertisements may take the form of spots,
appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers.
Political advertising includes matters, not falling within the
scope of personal opinion, that appear on any Internet
website, including, but not limited to, social networks,
blogging sites, and micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation.
(Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not
included, while sponsored messages are covered.
Thus, the last paragraph of Section 1 (1) of COMELEC Resolution No.
9615 states:
SECTION 1. Definitions. — As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an
act designed to promote the election or defeat of a particular
candidate or candidates to a public office, and shall include
any of the following:
xxx xxx xxx
Personal opinions, views, and preferences for candidates, contained in
blogs shall not be considered acts of election campaigning or
partisan political activity unless expressed by government officials
in the Executive Department, the Legislative Department, the
Judiciary, the Constitutional Commissions, and members of the
Civil Service.
 In any event, this case does not refer to speech in cyberspace, and its
effects and parameters should be deemed narrowly tailored only in relation to the
facts and issues in this case. It also appears that such wording
in COMELEC Resolution No. 9615 does not similarly appear in Republic Act No.
9006, the law it implements.
We should interpret in this manner because of the value of political
speech.
As early as 1918, in United States v. Bustos, 205 this court recognized the
need for full discussion of public affairs. We acknowledged that free speech
includes the right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the intelligence and
dignity of the individual be exalted. 206

Subsequent jurisprudence developed the right to petition the government

for redress of grievances, allowing for criticism, save for some exceptions. 207 In
the 1951 case of Espuelas v. People, 208 this court noted every citizen's privilege
to criticize his or her government, provided it is "specific and therefore
constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up." 209 SECATH

The 1927 case of People v. Titular 210 involved an alleged

violation of the Election Law provision "penaliz[ing] the anonymous criticism of a
candidate by means of posters or circulars." 211 This court explained that it is the
poster's anonymous character that is being penalized. 212 The ponente adds that
he would "dislike very much to see this decision made the vehicle for the
suppression of public opinion." 213
In 1983, Reyes v. Bagatsing 214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie in the
fact that there may be something worth hearing from the dissenter [and] [t]hat is
to ensure a true ferment of ideas." 215
Allowing citizens to air grievances and speak constructive criticisms
against their government contributes to every society's goal for development. It
puts forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the government
accountable for acts that violate constitutionally protected rights.
 In 1998, Osmeña v. COMELEC found Section 11 (b) of Republic Act No.
6646, which prohibits mass media from selling print space and air time for
campaign except to the COMELEC, to be a democracy-enhancing
measure. 216 This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to the
proper functioning of the government established by our Constitution." 217
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs the
people what the issues are, and who are supporting what issues." 218 At the
heart of democracy is every advocate's right to make known what the people
need to know, 219 while the meaningful exercise of one's right of suffrage includes
the right of every voter to know what they need to know in order to make their
choice.
Thus, in Adiong v. COMELEC, 220 this court discussed the
importance of debate on public issues, and the freedom of expression especially
in relation to information that ensures the meaningful exercise of the
right of suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement, caustic
and sometimes unpleasantly sharp attacks on government and public officials. Too
many restrictions will deny to people the robust, uninhibited, and wide open
debate, the generating of interest essential if our elections will truly be free, clean
and honest.
We have also ruled that the preferred freedom of expression calls all the
more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital
right of suffrage. 221 (Emphasis supplied, citations omitted)

Speech with political consequences is at the core of the

freedom of expression and must be protected by this court.
Justice Brion pointed out that freedom of expression "is not the
god of rights to which all other rights and even government protection of state
interest must bow." 222
The right to freedom of expression is indeed not absolute. Even some
forms of protected speech are still subject to some restrictions . The
degree of restriction may depend on whether the regulation is content-
based or content-neutral. 223 Content-based regulations can either be
based on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation
 COMELEC contends that the order for removal of the tarpaulin is a
content-neutral regulation. The order was made simply because petitioners failed
to comply with the maximum size limitation for lawful election propaganda. 224
On the other hand, petitioners argue that the present size regulation is
content-based as it applies only to political speech and not to other
forms of speech such as commercial speech. 225 "[A]ssuming arguendo that the
size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it's still unconstitutional for lack of a clear and reasonable nexus with a
constitutionally sanctioned objective." 226
The regulation may reasonably be considered as either content-neutral or
content-based. 227 Regardless, the disposition of this case will be the same.
Generally, compared with other forms of speech, the proposed speech is
content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in
the questioned order applies only to posters and tarpaulins that may affect
the elections because they deliver opinions that shape both their choices. It does
not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as "election
paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will
want to use their resources to be able to raise public issues that should be
tackled by the candidates as what has happened in this case. COMELEC's
discretion to limit speech in this case is fundamentally unbridled. cHSIAC

Size limitations during elections hit at a core part of expression. The

content of the tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this
court has used the clear and present danger rule as measure. 228 Thus,
in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear and present danger
rule. The latter will pass constitutional muster only if justified by a compelling
reason, and the restrictions imposed are neither overbroad nor
vague. 229 (Citations omitted)

Under this rule, "the evil consequences sought to be prevented must

be substantive, 'extremely serious and the degree of imminence extremely
high.'" 230 "Only when the challenged act has overcome the clear and present
danger rule will it pass constitutional muster, with the government having the
burden of overcoming the presumed unconstitutionality." 231
 Even with the clear and present danger test, respondents failed to justify
the regulation. There is no compelling and substantial state interest endangered
by the posting of the tarpaulin as to justify curtailment of the
right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property.
The size of the tarpaulin does not affect anyone else's constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the
subject matter of the utterance or speech." 232 In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as time,
place, or manner of the speech. 233
This court has attempted to define "content-neutral" restraints starting with
the 1948 case of Primicias v. Fugoso. 234 The ordinance in this case was
construed to grant the Mayor discretion only to determine the public places that
may be used for the procession or meeting, but not the power to refuse the
issuance of a permit for such procession or meeting. 235 This court explained that
free speech and peaceful assembly are "not absolute for it may be so regulated
that it shall not be injurious to the equal enjoyment of others having equal rights,
nor injurious to the rights of the community or society." 236
The earlier case of Calalang v. Williams 237 involved the National
Traffic Commission resolution that prohibited the passing of animal-drawn
vehicles along certain roads at specific hours. 238 This court similarly discussed
police power in that the assailed rules carry out the legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public." 239
As early as 1907, United States v. Apurado 240 recognized that "more or
less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ." 241 It is with this backdrop that
the state is justified in imposing restrictions on incidental matters as time, place,
and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the
steps that permit applicants must follow which include informing the licensing
authority ahead of time as regards the date, public place, and time of the
assembly. 242 This would afford the public official time to inform applicants if there
would be valid objections, provided that the clear and present danger test is
the standard used for his decision and the applicants are given the
opportunity to be heard. 243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a
valid content-neutral regulation. In the 2006 case of Bayan v. Ermita, 244 this
court discussed how Batas Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner. 245 In 2010, this court found
in Integrated Bar of the Philippines v. Atienza 246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without first affording
petitioners the opportunity to be heard. 247
We reiterate that the regulation involved at bar is content-based. The
tarpaulin content is not easily divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions

imposing a size limit for tarpaulins are content-neutral regulations as these
"restrict the manner by which speech is relayed but not the content of what is
conveyed." 248
If we apply the test for content-neutral regulation, the questioned
acts of COMELEC will not pass the three requirements for evaluating such
restraints on freedom of speech. 249 "When the speech restraints take the
form of a content-neutral regulation, only a substantial governmental interest is
required for its validity," 250 and it is subject only to the intermediate approach. 251
This intermediate approach is based on the test that we have prescribed in
several cases. 252 A content-neutral government regulation is sufficiently
justified:
HICEca

[1] if it is within the constitutional power of the Government; [2] if it

furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression;
and [4] if the incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the furtherance of that
interest. 253

On the first requisite, it is not within the constitutional

powers of the COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates.
On the second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the restrictions
made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
State's mandate to protect and care for them, as parens patriae, 254 constitute a
substantial and compelling government interest in regulating . . . utterances in TV
broadcast." 255
 Respondent invokes its constitutional mandate to ensure equal opportunity
for public information campaigns among candidates in connection with the
holding of a free, orderly, honest, peaceful, and credible election. 256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to
posters are necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities." 257
First, Adiong v. COMELEC has held that this interest is "not as important
as the right of [a private citizen] to freely express his choice and exercise his
right of free speech." 258 In any case, faced with both rights to freedom of speech
and equality, a prudent course would be to "try to resolve the tension in a way
that protects the right of participation." 259
Second, the pertinent election laws related to private property only require
that the private property owner's consent be obtained when posting election
propaganda in the property. 260 This is consistent with the fundamental right
against deprivation of property without due process of law. 261 The present facts
do not involve such posting of election propaganda absent consent from the
property owner. Thus, this regulation does not apply in this case. EcASIC

Respondents likewise cite the Constitution 262 on their authority to

recommend effective measures to minimize election spending. Specifically,
Article IX-C, Section 2 (7) provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
xxx xxx xxx
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance candidates. (Emphasis
supplied)

This does not qualify as a compelling and substantial government interest

to justify regulation of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the
two feet (2') by three feet (3') size limitation under Section 6
(c) of COMELEC Resolution No. 9615. This resolution implements the Fair
Election Act that provides for the same size limitation. 263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance." 264 In fact,
speech with political consequences, as in this case, should be encouraged and
not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there
is no limit on the number of tarpaulins that may be posted. 265
The third requisite is likewise lacking. We look not only at the legislative
intent or motive in imposing the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not be narrowly tailored to
achieve the purpose. It must be demonstrable. It must allow alternative avenues
for the actor to make speech.
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum size of the tarpaulin would render
ineffective petitioners' message and violate their right to exercise
freedom of expression.
The COMELEC's act of requiring the removal of the tarpaulin has the
effect of dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower
test of intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in this case is a strong deterrent to further
speech by the electorate. Given the stature of petitioners and their message,
there are indicators that this will cause a "chilling effect" on robust discussion
during elections.
The form of expression is just as important as the message itself. In the
words of Marshall McLuhan, "the medium is the message." 266 McLuhan's
colleague and mentor Harold Innis has earlier asserted that "the
materials on which words were written down have often counted for more than
the words themselves." 267

III
Freedom of expression and equality

III.A
The possibility of abuse

Of course, candidates and political parties do solicit the help of private

individuals for the endorsement of their electoral campaigns.
 On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are made
ostensibly by "friends" but in reality are really paid for by the candidate or political
party. This skirts the constitutional value that provides for equal opportunities for
all candidates.
However, as agreed by the parties during the oral arguments in this case,
this is not the situation that confronts us. In such cases, it will simply be a matter
for investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage by the
possibility of abuse by those seeking to be elected. It is true that there can be
underhanded, covert, or illicit dealings so as to hide the candidate's real
levels of expenditures. However, labelling all expressions of private parties that
tend to have an effect on the debate in the elections as election paraphernalia
would be too broad a remedy that can stifle genuine speech like in this case.
Instead, to address this evil, better and more effective enforcement will be the
least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support for the
campaigns. This may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating funds to the campaign,
they will instead use their resources directly in a way that the candidate or
political party would have done so. This may effectively skirt the constitutional
and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in this case will certainly not be what
candidates and political parties will carry in their election posters or media
ads. The message of petitioner, taken as a whole, is an advocacy of a social
issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political
position on this social issue be determinative of how the public will vote. It
primarily advocates a stand on a social issue; only secondarily — even
almost incidentally — will cause the election or non-election of a
candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary
form that employs such devices as sarcasm, irony and ridicule to deride
prevailing vices or follies," 268 and this may target any individual or group in
society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism" 269 "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is
more thoroughly democratic than to have the high-and-mighty lampooned and
spoofed." 270 Northrop Frye, well-known in this literary field, claimed that satire
had two defining features: "one is wit or humor founded on fantasy or a
sense of the grotesque and absurd, the other is an object of attack." 271 Thus,
satire frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a
list of dead individuals nor could the Archbishop of the Diocese of Bacolod have
intended it to mean that the entire plan of the candidates in his list was to cause
death intentionally. The tarpaulin caricatures political parties and parodies the
intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed
with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to
endorse.
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from candidates and political
parties are more declarative and descriptive and contain no sophisticated literary
allusion to any social objective. Thus, they usually simply exhort the public to
vote for a person with a brief description of the attributes of the candidate. For
example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for
[z], Iba kami sa Makati." SEcADa

This court's construction of the guarantee of freedom of expression has

always been wary of censorship or subsequent punishment that entails
evaluation of the speaker's viewpoint or the content of one's speech. This is
especially true when the expression involved has political consequences. In this
case, it hopes to affect the type of deliberation that happens during elections. A
becoming humility on the part of any human institution no matter how endowed
with the secular ability to decide legal controversies with finality entails that we
are not the keepers of all wisdom.
Humanity's lack of omniscience, even acting collectively, provides space
for the weakest dissent. Tolerance has always been a libertarian virtue whose
version is embedded in our Bill of Rights. There are occasional
heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority
surely and comfortably disregards provides us with the checks upon reality that
may soon evolve into creative solutions to grave social problems. This is the
utilitarian version. It could also be that it is just part of human necessity to evolve
through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It
contains other provisions which, taken together with the guarantee of free
expression, enhances each other's value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and
produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in reality
and, thus, render them meaningless.

III.B.
Speech and equality:
Some considerations

We first establish that there are two paradigms of free speech that
separate at the point of giving priority to equality vis-à-vis liberty. 272
In an equality-based approach, "politically disadvantaged speech prevails
over regulation[,] but regulation promoting political equality prevails over
speech." 273 This view allows the government leeway to redistribute or equalize
'speaking power,' such as protecting, even implicitly subsidizing, unpopular or
dissenting voices often systematically subdued within society's ideological
ladder. 274 This view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have capabilities that may
drown out the messages of others. This is especially true in a developing or
emerging economy that is part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one's
authentic self or to participate in the self determination of one's communities is
not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination." 275 In
his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power
and control. 276
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken in a real context.
This tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomy — this is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It stipulates the
ability to determine one's own life: to be able to determine what to do and what not
to do, what to suffer and what not. But the subject of this autonomy is never the
contingent, private individual as that which he actually is or happens to be; it is
rather the individual as a human being who is capable of being free with the others.
 And the problem of making possible such a harmony between every individual
liberty and the other is not that of finding a compromise between competitors, or
between freedom and law, between general and individual interest, common and
private welfare in an established society, but of creating the society in which man
is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the
existing societies. 277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions

presented to and deliberated by the people — "implies a necessary condition,
namely, that the people must be capable of deliberating and choosing on the
basis of knowledge, that they must have access to authentic information, and
that, on this basis, their evaluation must be the result of autonomous
thought." 278 He submits that "[d]ifferent opinions and 'philosophies' can no longer
compete peacefully for adherence and persuasion on rational grounds: the
'marketplace of ideas' is organized and delimited by those who determine the
national and the individual interest." 279 IDEHCa

A slant toward left manifests from his belief that "there is a 'natural
right' of resistance for oppressed and overpowered minorities to use extralegal
means if the legal ones have proved to be inadequate." 280 Marcuse, thus, stands
for an equality that breaks away and transcends from established hierarchies,
power structures, and indoctrinations. The tolerance of libertarian society he
refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars
for "stringent protections of expressive liberty," 281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and informational
interests," 282 costs or the price of expression, and background facts, when taken
together, produce bases for a system of stringent protections for expressive
liberties. 283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty." 284 Cass
Sustein placed political speech on the upper tier of his two-tier model for
freedom of expression, thus, warranting stringent protection. 285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue." 286
But this is usually related also to fair access to opportunities for such
liberties. 287 Fair access to opportunity is suggested to mean substantive equality
and not mere formal equality since "favorable conditions for realizing the
expressive interest will include some assurance of the resources required for
expression and some guarantee that efforts to express
views on matters of common concern will not be drowned out by the
speech of better-endowed citizens." 288
Justice Brandeis' solution is to "remedy the harms of speech with more
speech." 289 This view moves away from playing down the danger as merely
exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them." 290
However, in some cases, the idea of more speech may not be enough.
Professor Laurence Tribe observed the need for context and "the
specification of substantive values before [equality] has full
meaning." 291 Professor Catherine A. MacKinnon adds that "equality continues to
be viewed in a formal rather than a substantive sense." 292 Thus, more speech
can only mean more speech from the few who are dominant rather than those
who are not.
Our jurisprudence
This court has tackled these issues. ECTSDa

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the

validity of Section 11 (b) of the Electoral Reforms Law of 1987. 293 This section
"prohibits mass media from selling or giving free of charge print space or air time
for campaign or other political purposes, except to
the Commission on Elections." 294 This court explained that this provision only
regulates the time and manner of advertising in order to ensure media equality
among candidates. 295 This court grounded this measure on constitutional
provisions mandating political equality: 296
Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for
the operation of transportation and other public utilities,
media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good.
 To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for
public service, and prohibit political dynasties as may be defined by
law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution's guarantee

for more substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The other view
However, there is also the other view. This is that
considerations of equality of opportunity or equality in the ability of citizens as
speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own
individual evaluations of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are best left to a freely
competitive ideological market." 297 This is consistent with the libertarian
suspicion on the use of viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses
negative rather than affirmative language. It uses 'speech' as its subject and not
'speakers'. 298 Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its speakers. 299 Pursuant to
this, "government must leave speakers and listeners in the private order to their
own devices in sorting out the relative influence of speech." 300
Justice Romero's dissenting opinion in Osmeña v. COMELEC formulates
this view that freedom of speech includes "not only the right to express one's
views, but also other cognate rights relevant to the free communication [of] ideas,
not excluding the right to be informed on matters of public concern." 301 She
adds:
And since so many imponderables may affect the
outcome of elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private animosities, the
weather, the threshold of a voter's resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly, association
and organizations, both by the candidate and the voter, becomes a sine
qua non for elections to truly reflect the will of the
electorate. 302 (Emphasis supplied)

Justice Romero's dissenting opinion cited an American case, if only to

emphasize free speech primacy such that "courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political
content," 303 thus:
the concept that the government may restrict the speech of some elements
in our society in order to enhance the relative voice of the others is wholly foreign
to the First Amendment which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic sources" and "to assure
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people." 304 SEACTH

This echoes Justice Oliver Wendell Holmes' submission "that the market
place of ideas is still the best alternative to censorship." 305
Parenthetically and just to provide the whole detail of the argument, the
majority of the US Supreme Court in the campaign expenditures
case of Buckley v. Valeo "condemned restrictions (even if content-
neutral) on expressive liberty imposed in the name of 'enhanc[ing] the relative
voice of others' and thereby 'equaliz[ing] access to the political arena." 306 The
majority did not use the equality-based paradigm.
One flaw of campaign expenditure limits is that "any limit placed on the
amount which a person can speak, which takes out of his exclusive judgment the
decision of when enough is enough, deprives him of his free speech." 307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
'profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.'" 308
In fact, "[c]onstraining those who have funds or have been able to raise
funds does not ease the plight of those without funds in the first place . . . [and]
even if one's main concern is slowing the increase in political costs, it may be
more effective to rely on market forces to achieve that result than on active legal
intervention." 309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky's the limit [because in] any campaign there are
saturation levels and a point where spending no longer pays off in votes per
dollar." 310

III.C.
When private speech amounts
to election paraphernalia

The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It valorizes
the ability of human beings to express and their necessity to relate. On the other
hand, a complete guarantee must also take into consideration the effects it will
have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the
speech and the messages of those in the minority. In a sense, social inequality
does have its effect on the exercise and effect of the guarantee of free speech.
Those who have more will have better access to media that reaches a wider
audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society. To
be really heard and understood, the marginalized view normally undergoes its
own degree of struggle. EHScCA

The traditional view has been to tolerate the viewpoint of the speaker and
the content of his or her expression. This view, thus, restricts laws or regulation
that allows public officials to make judgments of the value of such viewpoint or
message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns
made by candidates or the members of their political parties or their political
parties may be regulated as to time, place, and manner. This is the effect of our
rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members of a political
party which are, taken as a whole, principally advocacies of a social issue that
the public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited,
and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private
citizen which will not amount to an election paraphernalia to be validly regulated
by law.
Regulation of election paraphernalia will still be constitutionally valid
if it reaches into speech of persons who are not candidates or who do not
speak as members of a political party if they are not candidates, only if
what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a)
should be provided by law, (b) reasonable, (c) narrowly tailored to meet the
objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The regulation
must only be with respect to the time, place, and manner of the rendition of the
message. In no situation may the speech be prohibited or censored on the
basis of its content. For this purpose, it will not matter whether the speech is
made with or on private property.
This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners consists of a
social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio,
the present law — Section 3.3 of Republic Act No. 9006 and Section 6
(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass the
test of reasonability. A fixed size for election posters or tarpaulins without any
relation to the distance from the intended average audience will be arbitrary. At
certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to
the abridgement of speech with political consequences.

IV
Right to property

Other than the right to freedom of expression 311 and the meaningful
exercise of the right to suffrage, 312 the present case also involves one's right to
property. 313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda by applying such
regulations to private individuals. 314
Certainly, any provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the tarpaulin in question
belongs to petitioners. Respondents have also agreed, during the oral
arguments, that petitioners were neither commissioned nor paid by any
candidate or political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin
remains the private property of petitioners. Their right to use their property is
likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz: 315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to the constitutional
guaranties of due process and equal protection of the laws. 316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizen's
private property." 317 Consequently, it violates Article III, Section 1 of the
Constitution which provides that no person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the
right to acquire, use, and dispose of it; and the Constitution, in the 14th
Amendment, protects these essential attributes. CAIHaE

Property is more than the mere thing which a person owns. It is elementary
that it includes the right to acquire, use, and dispose of it. The Constitution protects
these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L.
ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment,
and disposal of a person's acquisitions without control or diminution save by the
law of the land. 1 Cooley's BL Com. 127. (Buchanan v. Warley 245 US 60
[1917]) 318

This court ruled that the regulation in Adiong violates private property
rights:
The right to property may be subject to a greater degree of regulation but
when this right is joined by a "liberty" interest, the burden of justification on the
part of the Government must be exceptionally convincing and irrefutable. The
burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it
prohibits the posting or display of election propaganda in any place, whether public
or private, except in the common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front door or on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may do. 319

Respondents ordered petitioners, who are private citizens, to remove the

tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC's interpretation of its powers.
Freedom of expression can be intimately related with the right to property.
There may be no expression when there is no place where the expression may
be made. COMELEC's infringement upon petitioners' property rights as in the
present case also reaches out to infringement on their fundamental right to
speech.
Respondents have not demonstrated that the present state interest they
seek to promote justifies the intrusion into petitioners' property rights. Election
laws and regulations must be reasonable. It must also acknowledge a private
individual's right to exercise property rights. Otherwise, the due process clause
will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent
the posting of election propaganda in private property without the consent of the
owners of such private property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that the
act of respondents in seeking to restrain petitioners from posting the tarpaulin in
their own private property is an impermissible encroachments on the right to
property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in

issuing the questioned notice and letter violated the right of petitioners to the free
exercise of their religion.
At the outset, the Constitution mandates the separation of church and
state. 320 This takes many forms. Article III, Section 5 of the Constitution, for
instance provides:
Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political rights.

There are two aspects of this provision. 321 The first is the non-
establishment clause. 322 Second is the free exercise and enjoyment of religious
profession and worship. 323
The second aspect is at issue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz,
imams, or any other religious make such act immune from any secular
regulation. 324 The religious also have a secular existence. They exist within a
society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all
acts of a bishop amounts to religious expression. This notwithstanding
petitioners' claim that "the views and position of the petitioners, the Bishop and
the Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic
dogma, faith, and moral teachings. . . ." 325
The difficulty that often presents itself in these cases stems from the reality
that every act can be motivated by moral, ethical, and religious considerations. In
terms of their effect on the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then to acts of a secular
character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing. cAHDES

Definitely, the characterizations of the religious of their acts are not

conclusive on this court. Certainly, our powers of adjudication cannot be blinded
by bare claims that acts are religious in nature.
 Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu 326 in claiming that the court "emphatically"
held that the adherents of a particular religion shall be the ones to determine
whether a particular matter shall be considered ecclesiastical in nature. 327 This
court in Ebralinag exempted Jehovah's Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
those beliefs may seem to others." 328 This court found a balance between the
assertion of a religious practice and the compelling necessities of a secular
command. It was an early attempt at accommodation of religious beliefs.
In Estrada v. Escritor, 329 this court adopted a policy of benevolent
neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person's or
institution's religion. As Justice Brennan explained, the "government [may] take
religion into account . . . to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish." 330

This court also discussed the Lemon test in that case, such that a
regulation is constitutional when: (1) it has a secular legislative purpose; (2) it
neither advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion. 331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does
not convey any religious doctrine of the Catholic church." 332 That the
position of the Catholic church appears to coincide with the message of the
tarpaulin regarding the RH Law does not, by itself, bring the expression within the
ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and "Team Buhay" according to their
respective votes on the RH Law.
The same may be said of petitioners' reliance on papal encyclicals to
support their claim that the expression on the tarpaulin is an ecclesiastical
matter. With all due respect to the Catholic faithful, the church doctrines relied
upon by petitioners are not binding upon this court. The position of the Catholic
religion in the Philippines as regards the RH Law does not suffice to qualify the
posting by one of its members of a tarpaulin as religious speech solely on such
basis. The enumeration of candidates on the face of the tarpaulin precludes any
doubt as to its nature as speech with political consequences and not religious
speech.
 Furthermore, the definition of an "ecclesiastical affair" in Austria v.
National Labor Relations Commission 333 cited by petitioners finds no application
in the present case. The posting of the tarpaulin does not fall within the
category of matters that are beyond the jurisdiction of civil courts as enumerated
in the Austria case such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other
activities with attached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it

thought was its duty in this case. However, it was misdirected.
COMELEC's general role includes a mandate to ensure equal
opportunities and reduce spending among candidates and their registered
political parties. It is not to regulate or limit the speech of the electorate as it
strives to participate in the electoral exercise.
The tarpaulin in question may be viewed as producing a
caricature of those who are running for public office. Their message may be
construed generalizations of very complex individuals and party-list
organizations. They are classified into black and white: as belonging to "Team
Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death
or of life on the basis of a single issue — and a complex piece of legislation at
that — can easily be interpreted as an attempt to stereotype the candidates and
party-list organizations. Not all may agree to the way their thoughts were
expressed, as in fact there are other Catholic dioceses that chose not to follow
the example of petitioners. ITAaCc

Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that the
authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an
enumeration of our fundamental liberties. It is not a detailed code that prescribes
good conduct. It provides space for all to be guided by their conscience, not only
in the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by
those in the minority. This can often be expressed by dominant institutions, even
religious ones. That they made their point dramatically and in a large way does
not necessarily mean that their statements are true, or that they have basis, or
that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by
petitioners. It is a specie of expression protected by our fundamental law. It is an
expression designed to invite attention, cause debate, and hopefully, persuade. It
may be motivated by the interpretation of petitioners of their ecclesiastical duty,
but their parishioner's actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms:
expression by the electorate that tends to rouse the public to debate
contemporary issues. This is not speech by candidates or political parties to
entice votes. It is a portion of the electorate telling candidates the conditions for
their election. It is the substantive content of the right to suffrage.
This is a form of speech hopeful of a quality of democracy that we should
all deserve. It is protected as a fundamental and primordial right by
our Constitution. The expression in the medium chosen by petitioners deserves
our protection.
WHEREFORE, the instant petition is GRANTED. The temporary
restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February 22, 2013 and
letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.
(The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728,
|||

[January 21, 2015], 751 PHIL 301-450)

United States vs. Bustos [G.R. No. L-12592, March 8, 1918]

[G.R. No. L-12592. March 8, 1918.]

THE UNITED STATES, plaintiff-appellee, vs.

FELIPE BUSTOS ET AL., defendants-appellants.

Kincaid & Perkins for appellants.

Acting Attorney-General Paredes, for appellee.

SYLLABUS
 1. CONSTITUTIONAL LAW; FREEDOM OF SPEECH AND PRESS;
ASSEMBLY AND PETITION; HISTORY. — Freedom of speech as cherished
in democratic countries was unknown in the Philippine Islands before 1900. It
was among the reforms sine quibus non insisted upon by the Filipino People.
The Malolos Constitution, the work of the Revolutionary Congress, in its bill of
rights, zealously guarded these basic rights. A reform so sacred to the people
of these Islands and won at so dear a cost should now be protected and
carried forward.
2. ID.; ID.; ID.; ID. — The Constitution of the United States and the
State constitutions guarantee the right of freedom of speech and press and
the right of assembly and petition. Beginning with the President's Instructions
to the Commission of April 7, 1900, these gruaranties were made effective in
the Philippines. They are now part and parcel of the Organic Law — of the
Constitution — of the Philippines Islands.
3. ID.; ID.; ID.; STATUTORY CONSTRUCTION. — These paragraphs
in the Philippine Bill of Rights carry with them all the applicable English and
American jurisprudence.
4. ID.; ID.; GENERAL PRINCIPLES. — The interests of society and the
maintenance of good government demand a full discussion public affairs.
Complete liberty to comment on the conduct of public men is necessary for
free speech. "The people are not obliged to speak of the conduct of their
officials in whispers or with bated breath in a free government, but only in a
despotism." (Howarth vs. Barlow [1906], 113 App. Div. N. Y., 510.) Of course,
criticism does not authorize defamation.
5. ID.; ID.; ID. — The guaranties of a free speech and a free press
include the right to criticize judicial conduct.
6. ID.; ASSEMBLY AND PETITION; GENERAL PRINCIPLES. — The
right to assemble and petition is a necessary consequence of republican
institutions and the complement of the right of free speech. Assembly means
a right on the part of citizens to meet peaceably for consultation in respect to
public affairs. Petition means that any person or group of persons can apply
without fear of penalty to the appropriate branch or office of the Government
for a redness of grievances.
7. ID.; FREEDOM OF SPEECH AND PRESS; ASSEMBLY AND
PETITION; PRIVILEGE. — The doctrine of privileged communications rests
upon public policy, "which looks to the free and unfettered administration of
justice, through, as an incidental result, it may, in some instances, afford an
immunity to the evil-disposed and malignant slanderer." (Abboth vs. National
Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)
 8. ID.; ID.; ID.; QUALIFIED PRIVILEGE. — Qualified privilege which
may be lost by proof of malice. "A communication made bona fide upon any
subject matter in which the party communicating has an interest or in
reference to which he has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contain criminatory matter which
without this privilege would be slanderous and actionable." (Harrison vs.
Rush, 5 E. & B. 344; 1 Jur. [N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E.
C. L., 344.)
9. ID.; ID.; ID.; ID.; — Even when the statements are found to be false,
if there is probable cause for belief in their truthfulness and the charge is
made in good faith, the mantle of privilege may still cover the mistake of the
individual. Personal injury is not necessary. The privilege is not defeated by
the mere fact that the communication is made in intemperate terms. Finally, if
a party applies to the wrong person through some natural and honest mistake
as to the respective functions of various officials, such an unintentional error
would not take the case out of the privilege.
10. ID.; ID.; ID.; ID.; MALICE. — In the usual libel case, malice can be
presumed from defamatory words. Privilege destroys that presumption. the
onus of proving malice then lies on the plaintiff.
11. ID.; ID.; ID.; ID. — A privileged communication should not be
subjected to microscopic examination to discover grounds of malice or falsity.
Such excessive scrutiny will defeat the protection which the law throws over
privileged communications.
12. ID.; ID.; ID. — Previous decisions of this court concerning libel
reviewed and distinguished.
13. ID.; ID.; ID. — A petition, prepared and signed at an assembly of
numerous citizens including affidavits by five individuals, charging a justice of
the peace with malfeasance in office and asking for his removal, was
presented through lawyers to the Executive Secretary. The Executive
Secretary referred the papers to the judge of first instance of the district. The
judge of first instance, after investigation, recommended to the Governor-
General that the justice of the peace filing a motion for new trial, the judge of
first instance ordered the suppression of the charges and acquitted the justice
of the peace of the same. Criminal action was then begun against the
petitioners, now become the defendants, charging that portions of the petition
presented to the Executive Secretary were libelous. The trial court found
thirty-two of the defendants guilty and sentenced each of them to pay a
nominal fine. On a review of the evidence, we find that express malice was
not proved by the prosecution. Good faith surrounded the action of the
petitioners. Their ends and motives were justifiable. The charges and the
petition were transmitted through reputable attorneys to the proper
 functionary. The defendants are not guilty and instead of punishing them for
an hones endeavor to improve the public service, they should rather be
commended for their good citizenship.

DECISION

MALCOLM, J : p

This appeal presents the specific question of whether or not the

defendants and appellants are guilty of a libel of Roman Punsalan, justice of
the peace of Macabebe and Masantol, Province of Pampanga. The appeal
also submits the larger question of the attitude which the judiciary should take
in interpreting and enforcing the Libel Law in connection with the basic
prerogatives of freedom of speech and press, and of assembly and petition.
For a better understanding, the facts in the present appeal are first narrated in
the order of their occurrence, then certain suggestive aspects relative to the
rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally,
judgment is rendered.
First, the facts. In the latter part of 1915, numerous citizens of the
Province of Pampanga assembled, the prepared and signed a petition to the
Executive Secretary through the law office of Crossfield & O'Brien, and five
individuals signed affidavits, charging Roman Punsalan, justice of the peace
of Macabebe and Masantol, Pampanga, with malfeasance in office and asking
for his removal. Crossfield & O'Brien submitted this petition and these
affidavits with a complaint to the Executive Secretary. The petition transmitted
by these attorneys was signed by thirty-four citizens apparently owners (now
the defendants), and contained the statements set out in the information as
libelous. Briefly stated the specific charges against the justice of the peace
were.
1. That Francisca Polintan, desiring to make complaint against Mariano
de los Reyes, visited the justice of the peace, who first told her that he would
draw up the complaint for P5; afterwards he said he would take P3 which she
paid; also kept her in the house for four days as a servant and took from her
two chickens and twelve "gandus;"
2. That Valentin Sunga being interested in a case regarding land which
was on trial before the justice of the peace, went to see the justice of the
peace to ascertain the result of the trial, and was told by the justice of the
peace that if he wished to win he must give him P50. Not having this amount,
Sunga gave the justice nothing, and a few days later was informed that he
had lost the case. Returning again to the office of the justice of the peace in
order to appeal, the justice told him that he could still win if he would pay P50;
3. That Leoncio Quiambao, having filed a complaint for assault against
four persons, on the day of the trial the justice called him over to his house,
where he secretly gave him (Quiambao) P30; and the complaint was
thereupon shelved.
The Executive Secretary referred the papers to the judge of first
instance for the Seventh Judicial District requesting investigation, proper
action and report. The justice of the peace was notified and denied the
charges. The judge of first instance found the first count not proved and
counts 2 and 3 established. In view of this result, the judge, the Honorable
Percy M. Moir, was of the opinion "that it must be, and it is hereby,
recommended to the Governor-General that the respondent be removed from
his position as justice of the peace of Macabebe and Masantol, Province of
Pampanga, and it is ordered that the proceedings had in it is ordered that the
proceedings had in this case be transmitted to the Executive Secretary."
Later the justice of the peace filed a motion for a new trial; the judge of
first instance granted the motion and reopened the hearing; documents were
introduced, including a letter sent by the municipal president and is councilors
of Masantol, Pampanga, asserting that the justice of the peace was the victim
of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace,
had instituted the charges for personal reasons; and the judge of first instance
ordered a suppression of the charges against Punsalan and acquitted him of
the same. Attorneys for complainants thereupon appealed to the Governor-
General as requested the record does not disclose.
Criminal action against the petitioners, now become the defendants,
was instituted on October 12, 1916, by virtue of the following information:
"That on or about the month of December, 1915, in the
municipality of Macabebe, Pampanga, P.I., the said accused, voluntarily,
illegally, and criminality and with malicious intent to prejudice and
defame Mr. Roman Punsalan Serrano who was at said time and place
justice of the peace of Macabebe and Masantol of this province, wrote,
signed, and published a writing which was false, scandalous, malicious,
defamatory, and libelous against the justice of the peace Mr. Roman
Punsalan Serrano, in which writing appear among other things the
following:
" 'That the justice of the peace, Mr. Roman Punsalan Serrano, of
this town of Macabebe, an account of the conduct observed by him
heretofore, a conduct highly improper of the office which he holds, is
found to be a public functionary who is absolutely unfit, eminently
immoral and dangerous to the community, and consequently unworthy of
the office.
 " 'That this assertion of the undersigned is evidenced in a clear
and positive manner by facts so certain, so serious, and so denigrating
which appear in the affidavits attached hereto, and by other facts no less
serious, but which the undersigned refrain from citing herein for the sake
of brevity and in order not to bother too much the attention of your Honor
and due to lack of sufficient proof to substantiate them.
" 'That should the higher authorities allow the said justice of the
peace of this town to continue in his office, the protection of the rights
and interest solemnly guaranteed by the Philippine Bill of Right, and
justice in this town will not be administered in accordance with law.
" 'Than on account of the wrongful discharge of his office and of
his bad conduct as such justice of the peace, previous to this time, some
respectable citizens of this town of Macabebe were compelled to present
an administrative case against the said Roman Punsalan Serrano before
the judge of first instance of Pampanga, in which case there were made
against him various charges which were true and certain and of different
characters.
" 'That after the said administrative case was over, the said justice
of the peace, far from changing his bad and despicable conduct, which
has roused the indignation of this town of Macabebe, subsequently
performed the acts above-mentioned, as stated in the affidavits herewith
attached, as if intending to mock at the people and to show his mistaken
valor and heroism.'
"All of this has been written and published by the accused with
the deliberate purpose of attacking the virtue, honor and reputation of
the justice of the peace, Mr. Roman Punsalan Serrano, and thus
exposing him to public hatred, contempt, and ridicule. All contrary to
law."
It should be noted that the information omits paragraphs of the petition
mentioning the investigation before the judge of first instance, the affidavits
upon which based and the concluding words, "To the Executive Secretary,
through the office of Crossfield & O'Brien."
The Honorable Percy M. Moir found all the defendants, with the
exception of Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel
Mallari, guilty and sentenced each of them to pay a fine of P10 and one thirty-
second part of the costs, or to suffer subsidiary imprisonment in case of
insolvency. New attorneys for the defense, coming into the case, after the
handing down of the decision, filed on December 16, 1916, a motion for a new
trial, the principal purpose of which was to retire the objection interposed by
then counsel for the defendants to the admission of Exhibit A consisting of the
entire administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed
making the following assignments of error:
 "1. The court erred in overruling the motion of the convicted
defendants for a new trial.
"2. The court erred in refusing to permit the defendants to retire
the objection inadvertently interposed by their counsel to the admission
in evidence of the expediente administrativo out of which the accusation
in this case arose.
"3. The court erred in sustaining the objection of the prosecution
to the introducing in evidence by the accused of the affidavits upon
which the petition forming the basis of the libelous charge was based.
"4. The court erred in not holding that the alleged libelous
statement was unqualifiedly privileged.
"5. The court erred in assuming and impliedly holding that the
burden was on the defendants to show that the alleged libelous
statements were true and free from malice.
"6. The court erred in not acquitting the defendants.
"7. The evidence adduced fails to show the guilt of the defendants
beyond a reasonable doubt. This is especially true of all the defendants,
except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes."
We have thus far taken it for granted that all the proceedings,
administrative and judicial, were properly before this court. As a matter of fact
counsel for defendants in the lower court made an improvident objection to
the admission of the administrative proceedings on the ground that the
signatures were not identified and that the same was immaterial, which
objection was partially sustained by the trial court. Notwithstanding this
curious situation by reason of which the attorney for the defense attempted to
destroy through his objection the very foundation for the justification of his
clients, we shall continue to consider all the proceedings as before us. Not
indicating specifically the reason for this action, let the following be stated:
The administrative proceedings were the basis of the accusation, the
information, the evidence, and the judgment rendered. The prosecution
cannot be understood without knowledge of interior action. Nothing more
unjust could be imagined than to pick out certain words which standing by
themselves and unexplained are libelous and then by shutting off all
knowledge of facts which would justify these words, to convict the accused.
The records in question are attached to the rollo, and either on the ground
that the attorneys for the defense retired the objection to the introduction of
the administrative proceedings by the prosecution, or that a new trial should
have been had because under section 42 of the Code of Criminal Procedure
"a case may be reopened on account of errors at law committed at the trial,"
or because of the right of this court to call in such records as are sufficiently
incorporated into the complaint and are essential to a determination of the
case, or finally, because of our conceded right to take judicial proceedings
supplemental to the basis action, we examine the record as because us,
containing not alone the trial for libel, but the proceedings previous to that trial
giving rise to it. To this action, the Government can not complain for it was the
prosecution which tried to incorporated Exhibit A into the record.
With these facts pleading justification, before testing them by certain
principles which make up the law of libel and slander, we feel warranted in
seizing the opportunity to intrude an introductory and general discussion of
freedom of speech and press and assembly and petition in the Philippine
Islands. We conceive that the time is ripe thus to clear up certain
misapprehensions on the subject and to place these basic rights in their
proper light.
Turning to the pages of history, we state nothing new when we set
down the freedom of speech as cherished in democratic countries was
unknown in the Philippine Islands before 1900. A prime cause for revolt was
consequently ready made. Jose Rizal in "Filipinas Despues de Cien Anos"
(The Philippines a Century Hence, pages 62 et seq.) describing "the
reforms sine quibus non," which the Filipinos insist upon, said:
"The minister, . . . who wants his reforms to be reforms, must
begin by declaring the press in the Philippines free and by instituting
Filipino delegates."
The Filipino patriots in Spain, through the columns of "La Solidaridad"
and by other means invariably in exposing the wants of the Filipino people
demanded." (See Mabini, La Revolucion Filipina.) The Malolos Constitution,
the work of the Revolutionary Congress, in its Bill of Rights, zealously
guarded freedom of speech and press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition
that a reform so sacred to the people of these Islands and won at so dear as
one would protect and preserve the covenant of liberty itself.
Net comes the period of American-Filipino cooperative effort. The
Constitution of the United States and the State constitutions guarantee the
right of freedom of speech and press and the right of assembly and petition.
We are therefore, not surprised to find President McKinley in that Magna
Charta of Philippine Liberty, the Instruction to the Second Philippine
Commission, of April 7, 1900, laying down the inviolable rule "That no law
shall be passed abridging the freedom of speech or of the press or of the
rights of the people to peaceably assemble and petition the Government for a
redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones
Law, the Act of Congress of August 29, 1916, in the nature of organic acts for
the Philippines, continued this guaranty. The words quoted are not unfamiliar
to students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American
people demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the proposition never to
be forgotten for an instant that the guaranties mentioned are part and parcel
of the Organic Law — of the Constitution — of the Philippines Islands.
These paragraphs found in the Philippine Bill of Rights are not
threadbare verbiage. The language carries with it all the applicable
jurisprudence of great English and American Constitutional cases.
(Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S.,
470.) And what are these principles? Volumes would inadequately answer.
But included are the following:
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. A public officer must not be too
thin-skinned with reference to comment upon his official acts. Only thus can
the intelligence and dignity of the individual be exalted. Of course, criticism
does not authorized defamation. Nevertheless, as the individual is less than
the State, so must expected criticism be born for the common good. Rising
superior to any official, or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary — to any or all the agencies of Government —
public opinion should be the constant source of liberty and democracy. (See
the well considered cases of Wason vs. Walter, 4 L.R. 4 Q. B., 73;
Seymour vs. Butterworth, 3 F. & F., 372; The Queen vs. Sir R. Garden, 5 Q.
B. D., 1.)
The guaranties of a free speech and a free press include the right to
criticize judicial conduct. The administration of the law is a matter of vital
public concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the
peace or a judge the same as any other public officer, public opinion will be
effectively muzzled. Attempted terrorization of public opinion on the part of the
judiciary would be tyranny of the basest sort. The sword of Damocles in the
hands of a judge does not hang suspended over the individual who dares to
assert his prerogative as a citizen and to stand up bravely before any official.
On the contrary, it is a duty which every one owes to society or to the State to
assist in the investigation of any alleged misconduct. It is further the duty of all
know of any official dereliction on the part of a magistrate or the wrongful act
of any public officer to bring the facts to the notice of those whose duty it is to
inquire into and punish them. In the words of Mr. Justice Gayner, who
contributed so largely to the law of libel. "The people are not obliged to speak
of the conduct of their officials in whispers or with bated breath in a free
government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App.
Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of
republican institutions and the complement of the right of free speech.
Assembly means a right on the part of citizens to meet peaceably for
consultation in respect to public affairs. Petition means that any person or
group of persons can apply, without fear of penalty, to the appropriate branch
or office of the government for a redress of grievances. The persons
assembling and petitioning must, of course, assume responsibility for the
charges made.
Public policy, the welfare of society, and the orderly administration of
government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of
privilege.
"The doctrine of privileged communications rests upon public
policy, 'which looks to the free and unfettered administration of justice,
though, as an incidental result, it may in some instances afford an
immunity to the evil-disposed and malignant slanderer.'" (Abbott vs.
National Bank of Commerce, Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we
are not concerned. As to qualified privilege, it is as the words suggest a prima
facie privilege which may be lost by proof of malice. The rule is thus stated by
Lord Campbell, C. J.
"A communication made bona fide upon any subject-matter in which the
party communicating has an interest, or in reference to which he has a duty, is
privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be
slanderous and actionable." (Harrison vs. Bush, 5 E. & B., 344; 1 Jur. [N.S.],
846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a
complaint made in good faith and without malice in regard to the character or
conduct of a public official when addressed to an officer or a board having
some interest or duty in the matter. Even when the statements are found to be
false, if there is probable cause for belief in their truthfulness and the charge
is made in good faith, the mantle of privilege may still cover the mistake of the
individual. But the statements must be made under an honest sense of duty; a
self-seeking motive is destructive. Personal injury is not necessary. All
persons have an interest in the pure and efficient administration of justice and
of public affairs. The duty under which a party is privileged is sufficient if it is
social or moral in its nature and this person in good faith believe he is acting
in pursuance thereof although in fact he is mistaken. The privilege is not
defeated by the mere fact that the communication is made in intemperate
terms. A further element of the law of privilege concerns the person to whom
the complaint should be made. The rule is that if a party applies to the wrong
person through some natural and honest mistake as to the respective
functions of various officials such unintentional error will not take the case out
of the privilege.
In the usual case malice can be presumed from defamatory words.
Privilege destroy that presumption. The onus of proving malice then lies on
the plaintiff. The plaintiff must bring home to the defendant the existence of
malice as the true motive of his conduct. Falsehood and the absence of
probable cause will amount to proof of malice. (See White vs. Nicholls [1845],
3 How., 266.)
A privileged communication should not be subjected to microscopic
examination to discover grounds of malice or falsity. Such excessive scrutiny
would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. (See white vs.
Nicholls [1845], How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163;
Kent vs. Bongartz [1885], 15 R. L., 72; Street, Foundations of Legal Liability,
vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25 Cyc.
pages 385 et seq.)
Having ascertained the attitude which should be assumed relative to
the basic rights of freedom of speech and press and of assembly and petition,
having emphasized the point that our Libel Law as a statute must be
construed with reference to the guaranties of our Organic Law, and having
sketched the doctrine of privilege, we are in a position to test the facts of this
case with these principles.
It is true that the particular words set out in the information, if said of a
private person, might well be considered libelous per se. The charges might
also under certain conceivable conditions convict one of a libel of a
government official. As a general rule words imputing to a judge or a justice of
the peace dishonesty or corruption or incapacity or misconduct touching him
in his office are actionable. But as suggested in the beginning we do not have
present a simple case of direct and vicious accusations published in the
press, but of charges predicated on affidavits made to the proper official and
thus qualifiedly privileged. Express malice has not been proved by the
prosecution. Further, although the charges are probably not true as to the
justice of the peace, they were believed to be true by the petitioners. Good
faith surrounded their action. Probable cause for them to think that
malfeasance or misfeasance in office existed is apparent. The ends and the
motives of these citizens — to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the privilege.
These respectable citizens did not eagerly seize on a frivolous matter but on
instances which not only seemed to them of a grave character, but which
were sufficient in an investigation by a judge of first instance to convince him
of their seriousness. No undue publicity was given to the petition. The manner
of commenting on the conduct of the justice of the peace was proper. And
finally the charges and the petition were submitted through reputable
attorneys to the proper functionary, the Executive Secretary. In this
connection it is sufficient to note that justices of the peace are appointed by
the Governor-General, that they may be removed by the Governor-General
upon the recommendation of a judge of First Instance, or on the Governor-
General's own motion, and that at the time this action took place the
Executive Bureau was the office through which the Governor-General acted in
such matters. (See Administrative Code of 1917, secs. 203 and 229, in
connection with the cases of U. S. vs. Galeza [1915], 31 Phil., 365, and of
Harrison vs. Bush, 5 E. & B., 344, holding that where defendant was subject
to removal by the sovereign, a communication to the Secretary of State was
privileged.)
The present facts are further essentially different from those established
in other cases in which private individuals have been convicted of libels of
public officials. Malice, traduction, falsehood, calumny, against the man and
not the officer, have been the causes of the verdict of guilty. (See U. S. vs.
Sedano [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513;
U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on
the case of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The
Julio Bustos case, the Attorney-General says, is identical with the
Felipe Bustos case, with the exception that there has been more publicity in
the present instance and that the person to whom the charge was made had
less jurisdiction than had the Secretary of Justice in the Julio Bustos case.
Publicity is immaterial if the charge against Punsalan is in fact a privileged
communication. Moreover, in the Julio Bustos case we find wild statements,
with no basis in fact, made against reputable members of the judiciary, "to
persons who could not furnish protection." Malicious and untrue
communications are not privileged. A later case and one more directly in point
to which we invite special attention is United States vs. Galeza ([1915], 31
Phil., 365). (Note also Yancey vs. Commonwealth [1909], 122 So. W., 123.)
We find the defendants and appellants entitled to the protection of the
rules concerning qualified privilege, growing out of constitutional guaranties in
our bill of rights. Instead of punishing citizens for an honest endeavor to
improve the public service, we should rather commend them for their good
 citizenship. The defendants and appellants are acquitted with the costs de
officio. So ordered.
||| (U.S. v. Bustos, G.R. No. L-12592, [March 8, 1918], 37 PHIL 731-746)

People vs. Alarcon [G.R. No. 46551, December 12, 1939]

[G.R. No. 46551. December 12, 1939.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

SALVADOR ALARCON, ET AL., accused. FEDERICO
MAÑGAHAS, respondent-appellant.

Araneta, Zaragoza & Araneta; for appellant.

Assistant Solicitor-General Salvador Abad Santos; for appellee.

SYLLABUS

1. CONTEMPT BY NEWSPAPER PUBLICATION; ELEMENTS OF;

WHEN SUIT NOT PENDING. — The elements of contempt by newspaper
publications are well defined by the cases adjudicated in this as in other
jurisdictions. Newspaper publications tending to impede, obstruct, embarrass,
or influence the courts in administering justice in a pending suit or proceeding
constitutes criminal con tempt which is summarily punishable by the courts.
The rule is otherwise after the cause is ended. (In re Lozano and
Quevedo, 54 Phil., 801; In re Abistado, 57 Phil., 668.) It must, however,
clearly appear that such publications do impede, interfere with, and
embarrass the administration of justice before the author of the publications
should be held for contempt. (Nixon v. State, 207 Ind., 426; 193 N. E., 591; 97
A. L. R., 894.) What is thus sought to be shielded against the influence of
newspaper comments is the all-important duty of the court to administer
justice in the decision of a pending case. There is no pending case to speak
of when and once the court has come upon a decision and has lost control
either to reconsider or amend it. That, we believe, is the case at bar, for here
we have a concession that the letter complained of was published after the
Court of First Instance of Pampanga had decided the aforesaid criminal case
for robbery in band, and after that decision had been appealed to the Court of
Appeals. The fact that a motion to reconsider its order confiscating the bond
of the accused therein was subsequently filed may be admitted; but, the
important consideration is that it was then without power to reopen or modify
the decision which it had rendered upon the merits of the case, and could not
have been influenced by the questioned publication.
2. ID.; ID.; ID.; JURISDICTION OF ONE COURT TO PUNISH
CONTEMPTS COMMITTED AGAINST ANOTHER. — In the interrelation of
the different courts forming our integrated judicial system, one court is not an
agent or representative of another and may not, for this reason, punish
contempts in vindication of the authority and decorum which are not its own.
The appeal transfers the proceedings to the appellate court, and this last court
becomes thereby charged with the authority to deal with contempts committed
after the perfection of the appeal.
3. ID.; ID.; ID.; ID. — CRIMINAL NATURE OF CONTEMPT POWER
TO PUNISH CONTEMPT EXERCISED ON PRESERVATIVE NOT
VINDICATIVE PRINCIPLE. — It is suggested that "even if there had
been no thing more pending before the trial court, this still had jurisdiction to
punish the accused for contempt, for the reason that the publication
scandalized the court. (13 C. J., p. 37, 45; o R. C. L., 513.)" The rule
suggested, which has its origin at common law, is involved in some doubt
under modern English law and in the United States, "the weight of authority,
how ever, is clearly to the effect that comment upon concluded cases is
unrestricted under our constitutional guaranty of the liberty of the press."
(Annotations, 68 L. R. A., 255.) Other considerations argue against our
adoption of the suggested holding. As stated, the rule imported into this
jurisdiction is that "newspaper publications tending to impede, obstruct,
embarrass, or influence the courts in administering justice in a pending suit or
proceeding constitute criminal contempt which is summarily punishable by the
courts; that the rule is other wise after the case is ended." (In re Lozano and
Quevedo, supra; In re Abistado, supra.) In at least two instances, this court
has exercised the power to punish for contempt "on the preservative and not
on the vindictive principle" (Villavicencio vs. Lukban, 39 Phil., 778), "on the
corrective and not on the retaliatory idea of punishment." (In re Lozano and
Quevedo, supra.) Contempt of court is in the nature of a criminal offense (Lee
Yick Hon. V8. Collector of Customs, 41 Phil., 548), and in considering the
probate effects of the article alleged to be contemptuous, every fair and
reasonable inference consistent with the theory of defendants innocence will
be indulged ( State v. New Mexican Printing Co., 25 N. M., 102, 177 p. 751),
and where a reasonable doubt in fact or in law exists as to the guilt of one of
constructive contempt for interfering with the due administration of justice the
doubt must be re solved in his favor, and he must be acquitted. (State v.
Hazel tine, 82 Wash., 81, 143 p. 436.)

DECISION
LAUREL, J : p

As an aftermath of the decision rendered by the Court of First Instance

of Pampanga in criminal case No. 5733, The People of the Philippines vs.
Salvador Alarcon, et al., convicting the accused therein except one — of the
crime of robbery committed in band, a denunciatory letter, signed by one Luis
M. Taruc, was addressed to His Excellency, the President of the Philippines.
A copy of said letter found its way to the herein respondent, Federico Manga
has who, as columnist of the Tribune, a newspaper of general circulation in
the Philippines, quoted the letter in an article published by him in the issue of
that paper of September 23, 1937. The objectionable portion is inserted in the
following petition of the provincial fiscal of Pampanga, filed with the Court of
First Instance of that province on September 29, 1937:
"PETITION PARA QUE FEDERICO MAÑGAHAS SEA CASTIGADO
POR DESACATO
"Comparece el fiscal provincial que suscribe y al Hon. Juzgado,
como motivos de accion, respetuosamente alega:
1.° Que el 23 de julio de 1937, el que suscribe presento una
querella en la causa arriba titulada, por el delito de ROBO EN
CUADRILLA, habiendose celebrado la vista de esta causa durante los
dias 28, 29 y 30 del mismo mes y año;
2.° Que el 2 de agosto de 1937, el Hon. Juzgado dicto su
decision declarando culpables a los cincuenta y dos acusa dos, y
condenando al acusado Ricardo Serrano 1.° como jefe de la cuadrilla, a
una pena indeterminada no menor de cuatro meses de arresto mayor, ni
mayor de cuatro años de prision correccional, y a todos los demas
acusados a una pena indeterminada no menor de dos meses y un dia
de arresto mayor, ni mayor de tres años, ocho meses y un dia de prision
correccional y al pago proporcional de las costas;
3.° Que el 9 de agosto de 1937, no estando conformes de esta
decision, 108 referidos acusados presentaron su es crito de apelacion
para ante la Corte de Apelaciones;
4.° Que el 23 de septiembre de 1937, el recurrido Fede rico
Mañgahas escribio, redacto, imprimio y publico e hizo que se publicara
en el periodico diario The Tribune que se edite en la Ciudad de Manila y
de general circulacion en las Islas Filipinas, en su numero
correspondiente a dicha fecha, un articulo que hacia referencia a este
Hon. Juzgado y a la actuacion de este en esta causa, cuyo articulo en
parte es del tenor siguiente:
'Fifty-two (52) tenants in Floridablanca, Pampanga, have been
charged and convicted on a trumped up charge of robbery in band
because they took each a few cavans of palay for which they issued the
corresponding receipts, from the bodega in the hacienda where they are
working. These tenants contend that they have the right to take the palay
for their food as the hacienda owner has the obligation to give them
rations of palay for their main tenance and their families to be paid later
with their share of their crop. But this is not all. When the convicted
tenants appealed the case and were released on bail pending their
appeal, court and public officials exerted pressure upon one of their
bondsmen, as this bondsman informed the tenants, to withdraw his bail
for them, and the fifty two tenants were arrested again and put in jail.'
5.° Que la publicacion de este articulo acotado constituye un
verdadero desacato al Tribunal, porque tiene por objeto obstaculizar la
recta administrion de justicia, y tiende, ademas, a impresionar en el
animo del Tribunal y a ejercer influencia en la decision que se dictare en
este causa;
6.° Que la publicacion de dicho articulo es igualmente un
verdarero desacato a este Hon. Juzgado, por ser completamente falsos
y tendenciosos los hechos expuestos en el mismo como hechos
ejecutados por este Hon. Juzgado;
7.° Que el recurrido Federico Mañgahas con dicho articulo
acotado, voluntaria, maliciosa y deliberadamente trato y se propuso
atacar la honra, virtud y reputacion de este Hon. Juzgado exponiendolo
el menosprecio y ridiculo del publico por las imputaciones falsas,
maliciosas y difama torias contenidas en dicho articulo.
"Por tanto, pide se sirva ordenar el emplazamiento del recurrido
Federico Mañgahas, c/o T. V. T. Publishing Corporation, Calle Florentino
Torres, Manila, para que comparezca ante este Hon. Juzgado y
conteste a la presente peticion, y, previos los tramites legales, dicho
recurido sea castigado por desacato. Pide igualmente se sirva dictar
cualquier otra resolucion que en derecho proceda."
"San Fernando, Pampanga, septiembre 23, 1937." On the same
date, the lower court ordered the respondent to appear and show cause.
The respondent appeared and filed an answer, alleging:
"1. That he did not draft and write the paragraph above quoted in
the petition of the Provincial Fiscal, but the same is merely a part of a
letter addressed to the President of the Philippines, certified copy of
which is hereto attached, and marked Exhibit '1.'
"2. That he caused the said letter to be copied without comments
or remarks as may been seen from the attached issue of the 'The
Tribune' on September 23, 1937, marked Exhibit '2.'
"3. That in having the said letter copied it was not the intention,
much less the purpose and design of the respondent to attack the honor,
virtue and reputation of this Honorable Court but merely cited it as an
instance of the popular tendency to resort to the President in everything.
 "4. That far from reflecting on the honor, virtue and reputation of
this Honorable Court, the publication of the letter to the President simply
constitutes an indirect criticism of the methods of the Popular Front in
building up its political prestige.
"5. That the publication of the letter in question did not and does
not embarrass, impede, intimidate or influence this Honorable Court in
the exercise of its judicial functions, or prevent an impartial trial in this
case, inasmuch as the case has already been decided.
" 6. That the respondent alleges that this case is no longer
pending before this Hon. Court and therefore the Court has lost its
jurisdiction over it.
"7. The respondent contends that the portion of the article quoted
by the provincial fiscal in his petition for contempt does not constitute
contempt of court because it does not attack nor question the judgment
of the Court but only explain the side of the defendant.
"8. 'The general rule is that to constitute any publication a
contempt it must have reference to a matter then pending in court, and
be of a character tending to the injury of pending proceeding before it
and of the subsequent proceeding. It is accordingly held that libelous
comments upon a sentence already passed in a criminal proceeding is
not a contempt.' (Percival v. State, 45 Neb., 741; 50 Am. St. Rept., 568;
64 NW. 221; 68 L. R. A., 255.)
"9. 'But comment upon the lower court's decision was held not
contemptuous because relating to a concluded matter, in Re Dalton, 46
Jan., 256; 26 Pac., 673 and Dumhan v. State, 6 Iowa, 245; although the
case was then pending on appeal.' (68 L. R. IA., 262.) (Emphasis ours.)
"10. That the publication of the letter in question is in line with the
constitutional guarantee of freedom of the press."
On November 29, 1937, the lower court entered an order, the dispositive part
of which reads thus:
"Considerando, sin embargo, todas las circunstancias del caso, el
Juzgado solamente impone al recurrido una multa nominal de P25, o en
caso de insolvencia, cinco dias de prision sin perjuicio de la accion por
libelo que el fiscal creyere conveniente incoar contra Luis M. Taruc. "Asi
se ordena."
Respondent Mañgahas appealed from this order to the Court of
Appeals — which later certified the case to this Court as involving only a
question of law — assigning the following errors allegedly committed by the
trial court;
"I. The lower court erred in finding the respondent guilty of
contempt of court.
 "II. The lower court erred in considering the letter quoted in the
article in question as falling under the Rules on the Investigation of
Judges of First Instance.
"III. The lower court erred in taking jurisdiction of the motion for
contempt."
Consideration of the first error is all that is necessary as the same will
lead incidentally to the disposition of the other two.
The elements of contempt by newspaper publications are well defined
by the cases adjudicated in this as in other jurisdictions. Newspaper
publications tending to impede, obstruct, embarrass, or influence the courts in
administering justice in a pending suit or proceeding constitutes criminal
contempt which is summarily punish able by the courts. The rule is otherwise
after the cause is ended. (In re Lozano and Quevedo, 54 Phil., 801; In re
Abistado, 57 Phil., 668. ) It must, however, clearly appear that such
publications do impede, interfere with, and embarrass the administration of
justice before the author of the publications should be held for contempt.
(Nixon v. State 207 Ind., 426, 193 N. E., 591, 97 A. L. R., 894.) What is thus
sought to be shielded against the influence of newspaper comments is the all-
important duty of the court to administer justice in the decision of a pending
case. There is no pending case to speak of when and once the court has
come upon a decision and has lost control either to reconsider or amend it.
That, we believe, is the case at bar, for here we have a concession that the
letter complained of was published after the Court of First Instance of
Pampanga had decided the aforesaid criminal case for robbery in band, and
after that decision had been appealed to the Court of Appeals. The fact that a
motion to reconsider its order confiscating the bond of the accused therein
was subsequently filed may be admitted; but, the important consideration is
that it was then without power to reopen or modify the decision which it had
rendered upon the merits of the case, and could not have been influenced by
the questioned publication.
If it be contended, however, that the publication of the questioned letter
constitutes contempt of the Court of Appeals where the appeal in the criminal
case was then pending, as was the theory of the provincial fiscal below which
was accepted by the lower court, we take the view that in the interrelation of
the different courts forming our integrated judicial system, one court is not an
agent or representative of another and may not, for this reason, punish
contempts in vindication of the authority and de corum which are not its own.
The appeal transfers the proceedings to the appellate court, and this last court
be comes thereby charged with the authority to deal with contempts
committed after the perfection of the appeal.
 The Solicitor-General, in his brief, suggests that "even if there had been
nothing more pending before the trial court, this still had jurisdiction to punish
the accused for contempt, for the reason that the publication scandalized the
court. (13 C. J., p. 37, 45; o R. C. L., 513.)" The rule suggested, which has its
origin at common law, is involved in some doubt under modern English law
and in the United States, "the weight of authority, however, is clearly to the
effect that comment upon concluded cases is unrestricted under our
constitutional guaranty of the liberty of the press." (Annotations, 68 L. R. A.,
255.) Other considerations argue against our adoption of the suggested
holding. As stated, the rule imported into this jurisdiction is that "newspaper
publications tending to impede, obstruct, embarrass, or influence the courts in
administering justice in a pending suit or proceeding constitute criminal
contempt which is summarily punishable by the courts; that the rule is
otherwise after the case is ended." (In re Lozano and Quevedo, supra; In re
Abistado, supra.) In at least two instances, this Court has exercised the power
to punish for contempt "on the preservative and on the vindicative principle"
(Villa vicencio vs. Lukban, 39 Phil., 778), "on the corrective and not on the
retaliatory idea of punishment". In re Lozano and Quevedo, supra.) Contempt
of court is in the nature of a criminal offense (Lee Yick Hon vs. Collector of
Customs, 41 Phil., 548), and in considering the probable effects of the article
alleged to be contemptuous, every fair and reasonable inference consistent
with the theory of defendant's innocence will be indulged (State v. New
Mexican Printing Co., 25 N. M., 102, 177 p. 751), and where a reasonable
doubt in fact or in law exists as to the guilt of one of constructive contempt for
interfering with the due administration of justice the doubt must be resolved in
his favor, and he must be acquitted. (State v. Hazel tine, 82 Wash., 81, 143 p.
436.)
The appealed order is hereby reversed, and the respondent acquitted,
without pronouncement as to costs. So ordered.
(People v. Mañgahas, G.R. No. 46551, [December 12, 1939], 69 PHIL 265-
|||

279)

Ayer Productions PTY Ltd. vs. Capulong [G.R. No. L-82380, April 29, 1988]
[G.R. No. 82380. April 29, 1988.]

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY

FILM PRODUCTIONS, petitioners, vs. HON. IGNACIO
M. CAPULONG and JUAN PONCE ENRILE, respondents.

[G.R. No. 82398. April 29, 1988.]

 HAL McELROY, petitioner, vs. HON. IGNACIO M. CAPULONG, in his
capacity as Presiding Judge of the Regional Trial Court of Makati,
Branch 134 and JUAN PONCE ENRILE, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF

SPEECH AND EXPRESSION; SCOPE. — The freedom of speech and of
expression, includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through television.
In our day and age, motion pictures are a universally utilized vehicle of
communication and medium of expression. Along with the press, radio and
television, motion pictures constitute a principal medium of mass
communication for information, education and entertainment.
2. ID.; ID.; ID.; AVAILABLE TO FOREIGN-OWNED MOTION PICTURE
COMPANIES. — This freedom is available in our country both to locally-
owned and to foreign-owned motion picture companies. Furthermore, the
circumstance that the production of motion picture films is a commercial
activity expected to yield monetary profit, is not a disqualification for availing
of freedom of speech and of expression.
3. ID.; ID.; ID.; COMMERCIAL MEDIA NOT EXCLUDED FROM THE
EXERCISE THEREOF. — The circumstance that the production of motion
picture films is a commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression. In our
community as in many other countries, media facilities are owned either by
the government or the private sector but the private sector-owned media
facilities commonly require to be sustained by being devoted in whole or in
part to revenue producing activities. Indeed, commercial media constitute the
bulk of such facilities available in our country and hence to exclude
commercially owned and operated media from the exercise of constitutionally
protected freedom of speech and of expression can only result in the drastic
contraction of such constitutional liberties in our country.
4. ID.; ID.; ID.; RIGHT OF PRIVACY, INCLUDED IN OUR LAW;
SCOPE AND CONTENT MARKED OUT BY CASELAW. — It was
demonstrated sometime ago by the then Dean Irene R. Corts that our law,
constitutional and statutory, does include a right of privacy. It is left to case
law, however, to mark out the precise scope and content of this right in
differing types of particular situations.
5. ID.; ID.; ID.; ID.; NOT AN ABSOLUTE RIGHT AND CANNOT BE
INVOKED TO RESIST PUBLICATION AND DISSEMINATION OF MATTERS
OF PUBLIC INTEREST. — The right of privacy or "the right to be let alone,"
like the right of free expression, is not an absolute right. A limited intrusion
into a person's privacy has long been regarded as permissible where
that person is a public figure and the information sought to be elicited
from him or to be published about him constitute matters of a public
character. Succinctly put, the right of privacy cannot be invoked to resist
publication and dissemination of matters of public interest. The interest
sought to be protected by the right of privacy is the right to be free from
"unwarranted publicity, from the wrongful publicizing of
the private affairs and activities of an individual which are outside the
realm of legitimate public concern."
6. ID.; ID.; ID.; ID.; PRIOR RESTRAINT UPON THE EXERCISE
THEREOF PRESUMED INVALID; PREFERRED CHARACTER OF
FREEDOM OF SPEECH AND EXPRESSION. — The respondent Judge has
restrained petitioners from filming and producing the entire proposed motion
picture. It is important to note that in Lagunzad, there was no prior restrain of
any kind imposed upon the movie producer who in fact completed and
exhibited the film biography of Moises Padilla. Because of the preferred
character of the constitutional rights of freedom of speech and of expression,
a weighty presumption of invalidity vitiates measures of prior restraint upon
the exercise of such freedoms.
7. ID.; ID.; ID.; ID.; FILMING OF PROJECTED MOTION PICTURE
"THE FOUR DAY REVOLUTION," NOT AN UNLAWFUL INTRUSION
THEREOF; DOCTRINE OF CLEAR AND PRESENT DANGER UNAVAILING
AS FILMING WAS AS YET UNCOMPLETED. — The production and filming
by petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon
private respondent's "right of privacy." The respondent Judge should have
stayed his hand, instead of issuing an ex-parte Temporary Restraining Order
one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture
was as yet uncompleted and hence not exhibited to any audience. Neither
private respondent nor the respondent trial Judge knew what the completed
film would precisely look like. There was, in other words, no "clear and
present danger" of any violation of any right to privacy that private respondent
could lawfully assert.
8. ID.; ID.; ID.; ID.; ID.; SUBJECT MATTER OF FILM IS ONE OF
PUBLIC INTEREST AND DOES NOT RELATE TO THE INDIVIDUAL AND
PRIVATE LIFE OF PRIVATE RESPONDENT ENRILE. — The subject matter
of "The Four Day Revolution" relates to the non-bloody change of government
that took place at Epifanio de los Sentos Avenue in February 1986, and the
train of events which led up to that denouement. Clearly, such subject matter
is one of public interest and concern. Indeed, it is, petitioners' argue, of
international interest. The subject thus relates to a highly critical stage in the
history of this country and as such, must be regarded as having passed into
the public domain and as an appropriate subject for speech and expression
and coverage by any form of mass media. The subject matter, as set out in
the synopsis provided by the petitioners and quoted above, does not relate to
the individual life and certainly not to the private life of private respondent
Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises
Padilla necessarily including at least his immediate family, what we have here
is not a film biography, more or less fictionalized, of private respondent Ponce
Enrile. "The Four Day Revolution" is not principally about, nor is it focused
upon, the man Juan Ponce Enrile; but it is compelled, if it is to be historical, to
refer to the role played by Juan Ponce Enrile in the precipitating and the
constituent events of the change of government in February 1986.
9. ID.; ID.; ID.; ID.; ID.; INTRUSION IS REASONABLY NECESSARY
TO KEEP THE FILM A TRUTHFUL HISTORICAL ACCOUNT. — The extent
of the intrusion upon the life of private respondent Juan Ponce Enrile that
would be entailed by the production and exhibition of "The Four Day
Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may be
generally described as such intrusion as is reasonably necessary to keep that
film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the
private life of private respondent or that of any member of his family.
10. ID.; ID.; ID.; ID.; ID.; PUBLIC FIGURE, DEFINED. — "A public
figure has been defined as a person who, by his accomplishments,
fame, or mode of living, or by adopting a profession or calling which
gives the public a legitimate interest in his doings, his affairs, and his
character, has become a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this category are those who have
achieved some degree of reputation by appearing before the public, as in the
case of an actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a
lodge. It includes, in short, anyone who has arrived at a position where
public attention is focused upon him as a person.
11. ID.; ID.; ID.; ID.; ID.; ID.; PRIVATE RESPONDENT ENRILE IS A
PUBLIC FIGURE. — Private respondent is a "public figure" precisely
because, inter alia, of his participation as a principal actor in the culminating
events of the change of government in February 1986. Because his
participation therein was major in character, a film reenactment of the
 peaceful revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a "public
figure" is necessarily narrower than that of an ordinary citizen. Private
respondent has not retired into the seclusion of simple private citizenship. He
continues to be a "public figure." After a successful political campaign during
which his participation in the EDSA Revolution was directly or indirectly
referred to in the press, radio and television, he sits in a very public place, the
Senate of the Philippines.
12. ID.; ID.; ID.; ID.; ID.; PORTRAYAL OF PRIVATE RESPONDENT
MUST BE RELATED TO PUBLIC FACTS. — The line of equilibrium in the
specific context of the instant case between the constitutional freedom of
speech and of expression and the right of privacy, may be marked out in
terms of a requirement that the proposed motion picture must be fairly truthful
and historical in its presentation of events. There must, in other words,
be no knowing or reckless disregard of truth in depicting the participation of
private respondent in the EDSA Revolution. There must, further,
be no presentation of the private life of the unwilling private respondent and
certainly no revelation of intimate or embarrassing personal facts. The
proposed motion picture should not enter into what Mme. Justice Melencio-
Herrera in Lagunzad referred to as "matters of essentially private concern." To
the extent that "The Four Day Revolution" limits itself in portraying the
participation of private respondent in the EDSA Revolution to those events
which are directly and reasonably related to the public facts of the EDSA
Revolution, the intrusion into private respondent's privacy cannot be regarded
as unreasonable and actionable. Such portrayal may be carried out even
without a license from private respondent.
13. REMEDIAL LAW; CIVIL PROCEDURE; COMPLAINT; DISMISSAL;
A FUGITIVE FOREFEITS HIS RIGHT TO PRIVACY THROUGH COURT
PROCESSES. — It is, however, important to dispose of the complaint filed by
former Colonel Honasan who, having refused to subject himself to the legal
processes of the Republic and having become once again a fugitive from
justice, must be deemed to have forfeited any right he might have had to
protect his privacy through court processes.

DECISION

FELICIANO, J : p

Petitioner Hal McElroy, an Australian film maker, and his movie

production company, petitioner Ayer Productions Pty. Ltd.
("Ayer Productions), 1 envisioned, sometime in 1987, the filming for
commercial viewing and for Philippine and international release, the historic
peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue).
Petitioners discussed this project with local movie producer Lope V. Juban,
who suggested that they consult with the appropriate government agencies
and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who
had played major roles in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was
endorsed by the Movie Television Review and Classification Board as well as
the other government agencies consulted. General Fidel Ramos also signified
his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy, informed
private respondent Juan Ponce Enrile about the projected motion picture
enclosing a synopsis of it, the full text of which is set out below:
"The Four Day Revolution is a six hour mini-series about People
Power — a unique event in modern history — that made possible the
peaceful revolution in the Philippines in 1986.
Faced with the task of dramatising these remarkable events,
screenwriter David Williamson and history Prof. Al McCoy have chosen
a 'docu-drama' style and created [four] fictitious characters to trace the
revolution from the death of Senator Aquino, to the February revolution
and the fleeing of Marcos from the country.
These characters' stories have been woven through the real
events to help our huge international audience understand this
extraordinary period in Filipino history.
First, there's Tony O'Neil, an American television journalist
working for a major network Tony reflects the average American attitude
to the Philippines — once a colony, now the home of crucially important
military bases. Although Tony is aware of the corruption and of Marcos'
megalomania, for him, there appears to be no alternative to Marcos
except the Communists.
Next, Angie Fox, a fiery Australian photo-journalist. A 'new girl in
town,' she is quickly caught up in the events as it becomes clear that the
time has come for a change. Through Angie and her relationship with
one of the Reform Army Movement Colonels (a fictitious character), we
follow the developing discontent in the armed forces. Their dislike for
General Ver, their strong loyalty to Defense Minister Enrile, and
ultimately their defection from Marcos.LLjur

The fourth fictitious character is Ben Balano, a middle-aged editor

of a Manila newspaper who despises the Marcos regime and is a
supporter and promoter of Cory Aquino. Ben has two daughters, Celie —
 a left-wing lawyer who is a secret member of the New People's Army,
and Eva — a P.R. girl, politically moderate and very much in love with
Tony. Ultimately, she must choose between her love and the revolution.
Through the interviews and experiences of these central
characters, we show the complex nature of Filipino society, and the
intertwining series of events and characters that triggered these
remarkable changes.
Through them also, we meet all of the principal characters and
experience directly dramatic recreation of the revolution. The story
incorporates actual documentary footage filmed during the period which
we hope will capture the unique atmosphere and forces that combined to
overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14
hugely successful plays to his credit ('Don's Party,' 'The Club, 'Travelling
North') and 11 feature films ('The Year of Living Dangerously,' 'Gallipoli,'
'Phar Lap').
Professor McCoy (University of New South Wales) is an American
historian with a deep understanding of the Philippines, who has worked
on the research for this project for some 18 months. Together with David
Williamson they have developed a script we believe accurately depicts
the complex issues and events that occurred during the period.
The six-hour mini-series is a McElroy and McElroy co-production
with Home Box Office in America, the Australian Broadcasting
Corporation in Australia and Zenith Productions in the United Kingdom."
The proposed motion picture would be essentially a reenactment of the
events that made possible the EDSA revolution; it is designed to be viewed in
a six-hour mini-series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real events, and utilizing
actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he]
would not and will not approve of the use, appropriation, reproduction and/or
exhibition of his name, or picture, or that of any member of his family in any
cinema or television production, film or other medium for advertising or
commercial exploitation" and further advised petitioners that "in the
production, airing, showing, distribution or exhibition of said or similar
film, no reference whatsoever (whether written, verbal or visual) should be
made to [him] or any member of his family, much less to any matter purely
personal to them."
It appears that petitioners acceded to this demand and the name of
private respondent Enrile was deleted from the movie script, and petitioners
proceeded to film the projected motion picture.
 On 23 February 1988, private respondent filed a Complaint with
application for Temporary Restraining Order and Writ of Preliminary Injunction
with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in
Branch 134 thereof, seeking to enjoin petitioners from producing the movie
"The Four Day Revolution." The complaint alleged that petitioners' production
of the mini-series without private respondent's consent and over his objection,
constitutes an obvious violation of his right of privacy. On 24 February 1988,
the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy filed a Motion to Dismiss with
Opposition to the Petition for Preliminary Injunction contending that the mini-
series film would not involve the private life of Juan Ponce Enrile nor that of
his family and that a preliminary injunction would amount to a prior restraint on
their right of free expression. Petitioner Ayer Productions also filed its own
Motion to Dismiss alleging lack of cause of action as the mini-series had not
yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of
Preliminary Injunction against the petitioners, the dispositive portion of which
reads thus:
WHEREFORE, let a writ of preliminary injunction be issued,
ordering defendants, and all persons and entities employed or under
contract with them, including actors, actresses and members of the
production staff and crew, as well as all persons and entities acting on
defendants' behalf, to cease and desist from producing and filming the
mini-series entitled "The Four Day Revolution" and from making any
reference whatsoever to plaintiff or his family and from creating any
fictitious character in lieu of plaintiff which nevertheless is based on, or
bears remote, substantial or marked resemblance or similarity to, or is
otherwise identifiable with, plaintiff in the production and filming any
similar film or photoplay, until further orders from this Court, upon
plaintiff's filing of a bond in the amount of P2,000,000.00, to answer for
whatever damages defendants may suffer by reason of the injunction if
the Court should finally decide that plaintiff was not entitled thereto.
LibLex

xxx xxx xxx

(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a
Petition for Certiorari dated 21 March 1988 with an urgent prayer for
Preliminary Injunction or Restraining Order, which petition was docketed
as G.R. No. L-82380.
 A day later, or on 23 March 1988, petitioner Hal McElroy also filed a
separate Petition for Certiorari with Urgent Prayer for a Restraining Order or
Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated
and private respondent was required to file a consolidated Answer. Further, in
the same Resolution, the Court granted a limited Temporary Restraining
Order partially enjoining the implementation of the respondent Judge's Order
of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and
allowing the petitioners to resume producing and filming those portions of the
projected mini-series which do not make any reference to private respondent
or his family or to any fictitious character based on or bearing substantial
resemblance or similarity to or identifiable as private respondent.
Private respondent seasonably filed his Consolidated Answer on
6 April 1988 invoking in the main a right of privacy.
I
The constitutional and legal issues raised by the present Petitions are
sharply drawn. Petitioners' claim that in producing and filming "The Four Day
Revolution," they are exercising their freedom of speech and of expression
protected under our Constitution. Private respondent, upon the other hand,
asserts a right of privacy and claims that the production and filming of the
projected mini-series would constitute an unlawful intrusion into his privacy
which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of
expression, the Court would once more stress that this freedom includes the
freedom to film and produce motion pictures and to exhibit such motion
pictures in theaters or to diffuse them through television. In our day and age,
motion pictures are a universally utilized vehicle of communication and
medium of expression. Along with the press, radio and television, motion
pictures constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice
Fernando, speaking for the Court, explained:
"1. Motion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse. Their
effects on the perception by our people of issues and public officials or
public figures as well as the prevailing cultural traits is considerable. Nor
as pointed out in Burstyn v. Wilson (343 US 495 [1942]) is the
'importance of motion pictures as an organ of public opinion lessened by
the fact that they are designed to entertain as well as to inform' (Ibid,
501). There is no clear dividing line between what involves knowledge
and what affords pleasure. If such a distinction were sustained, there is a
diminution of the basic right to free expression. . . . " 4
 This freedom is available in our country both to locally-owned and to
foreign-owned motion picture companies. Furthermore, the circumstance
that the production of motion picture films is a commercial activity
expected to yield monetary profit, is not a disqualification for availing of
freedom of speech and of expression. In our community as in many other
countries, media facilities are owned either by the government or the private
sector but the private sector-owned media facilities commonly require to be
sustained by being devoted in whole or in part to revenue producing activities.
Indeed, commercial media constitute the bulk of such facilities available in our
country and hence to exclude commercially owned and operated media from
the exercise of constitutionally protected freedom of speech and of expression
can only result in the drastic contraction of such constitutional liberties in our
country.
The counter-balancing claim of private respondent is to a right of
privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes
that our law, constitutional and statutory, does include a right of privacy. 5 It is
left to case law, however, to mark out the precise scope and content of this
right in differing types of particular situations. The right of privacy or "the right
to be let alone," 6 like the right of free expression, is not an absolute right. A
limited intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information sought to
be elicited from him or to be published about him constitute matters of a public
character. 7 Succinctly put, the right of privacy cannot be invoked to resist
publication and dissemination of matters of public interest. 8 The interest
sought to be protected by the right of privacy is the right to be free from
"unwarranted publicity, from the wrongful publicizing of
the private affairs and activities of an individual which are outside the
realm of legitimate public concern." 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies
heavily, recognized a right to privacy in a context which included a claim to
freedom of speech and of expression. Lagunzad involved a suit for
enforcement of a licensing agreement between a motion picture producer as
licensee and the widow and family of the late Moises Padilla as licensors. This
agreement gave the licensee the right to produce a motion picture portraying
the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for
the Municipality of Magallon, Negros Occidental during the November 1951
elections and for whose murder, Governor Rafael Lacson, a member of the
Liberal Party then in power and his men were tried and convicted. 11 In
affirming the judgment of the lower court enforcing the licensing agreement
against the licensee who had produced the motion picture and exhibited it but
refused to pay the stipulated royalties, the Court, through Mme. Justice
Melencio-Herrera, said:
 "Neither do we agree with petitioner's submission that the
Licensing Agreement is null and void for lack of, or for having an illegal
cause or consideration, while it is true that petitioner had purchased the
rights to the book entitled 'The Moises Padilla Story,' that did not
dispense with the need for prior consent and authority from the
deceased heirs to portray publicly episodes in said deceased's life and in
that of his mother and the members of his family. As held in Schuyler v.
Curtis, ([1895], 147 NY 434, 42 NE, 31 LRA 286. 49 Am St Rep 671), 'a
privilege may be given the surviving relatives of a deceased person to
protect his memory, but the privilege exists for the benefit of the living, to
protect their feelings and to prevent a violation of their own rights in the
character and memory of the deceased.'
Petitioner's averment that private respondent did not have any
property right over the life of Moises Padilla since the latter was a public
figure, is neither well taken. Being a public figure ipso facto does not
automatically destroy in toto a person's right to privacy. The right to
invade a person's privacy to disseminate public information does not
extend to a fictional or novelized representation of a person, no matter
how public a figure he or she may be (Garner v. Triangle Publications,
DCNY, 97 F. Supp., 564, 549 [1951]). In the case at bar, while it is true
that petitioner exerted efforts to present a true-to-life story of Moises
Padilla, petitioner admits that he included a little romance in the film
because without it, it would be a drab story of torture and brutality." 12
In Lagunzad, the Court had need, as we have in the instant case, to
deal with contraposed claims to freedom of speech and of expression and to
privacy. Lagunzad the licensee in effect claimed, in the name of freedom of
speech and expression, a right to produce a motion picture biography at least
partly "fictionalized" of Moises Padilla without the consent of and without
paying pre-agreed royalties to the widow and family of Padilla. In rejecting the
licensee's claim, the Court said:
Lastly, neither do we find merit in petitioner's contention that the
Licensing Agreement infringes on the constitutional right of freedom of
speech and of the press, in that, as a citizen and as a newspaperman,
he had the right to express his thoughts in film on the public life of
Moises Padilla without prior restraint. The right of freedom of expression,
indeed, occupies a preferred position in the 'hierarchy of civil
liberties' (Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however,
without limitations. As held in Gonzales v. Commission on Elections, 27
SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctrine is that the clear and present danger rule is
such a limitation. Another criterion for permissible limitation on freedom
 of speech and of the press, which includes such vehicles of the mass
media as radio, television and the movies, is the 'balancing-of-interests
test' (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed.,
p. 79). The principle 'requires a court to take conscious and detailed
consideration of the interplay of interests observable in a given situation
or type of situation' (Separation Opinion of the late Chief Justice Castro
in Gonzales v. Commission on Elections, supra, p. 899). cdphil

In the case at bar, the interests observable are the right to privacy
asserted by respondent and the right of freedom of expression invoked
by petitioner. Taking into account the interplay of those interests, we
hold that under the particular circumstances presented and considering
the obligations assumed in the Licensing Agreement entered into by
petitioner, the validity of such agreement will have to be
upheld particularly because the limits of freedom of expression are
reached when expression touches upon matters of essentially private
concern. 13
Whether the "balancing of interests test" or the "clear and present
danger test" be applied in respect of the instant Petitions, the Court believes
that a different conclusion must here be reached: The production and filming
by petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon
private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant
case is a prior and direct restraint on the part of the respondent Judge upon
the exercise of speech and of expression by petitioners. The respondent
Judge has restrained petitioners from filming and producing the entire
proposed motion picture. It is important to note that in Lagunzad, there
was no prior restrain of any kind imposed upon the movie producer who in
fact completed and exhibited the film biography of Moises Padilla. Because of
the preferred character of the constitutional rights of freedom of speech and of
expression, a weighty presumption of invalidity vitiates measures of prior
restraint upon the exercise of such freedoms. 14 The invalidity of a measure of
prior restraint does not, of course, mean that no subsequent liability may
lawfully be imposed upon a person claiming to exercise such constitutional
freedoms. The respondent Judge should have stayed his hand, instead of
issuing an ex-parte Temporary Restraining Order one day after filing of a
complaint by the private respondent and issuing a Preliminary Injunction
twenty (20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience. Neither private
respondent nor the respondent trial Judge knew what the completed film
would precisely look like. There was, in other words, no "clear and present
danger" of any violation of any right to privacy that private respondent could
lawfully assert.
 2. The subject matter of "The Four Day Revolution" relates to the non-
bloody change of government that took place at Epifanio de los Santos
Avenue in February 1986, and the train of events which led up to
that denouement. Clearly, such subject matter is one of public interest and
concern. Indeed, it is, petitioners' argue, of international interest. The subject
thus relates to a highly critical stage in the history of this country and as such,
must be regarded as having passed into the public domain and as an
appropriate subject for speech and expression and coverage by any form of
mass media. The subject matter, as set out in the synopsis provided by the
petitioners and quoted above, does not relate to the individual life and
certainly not to the private life of private respondent Ponce Enrile. Unlike
in Lagunzad, which concerned the life story of Moises Padilla necessarily
including at least his immediate family, what we have here is not a film
biography, more or less fictionalized, of private respondent Ponce Enrile. "The
Four Day Revolution" is not principally about, nor is it focused upon, the man
Juan Ponce Enrile; but it is compelled, if it is to be historical, to refer to the
role played by Juan Ponce Enrile in the precipitating and the constituent
events of the change of government in February 1986.
3. The extent of the intrusion upon the life of private respondent Juan
Ponce Enrile that would be entailed by the production and exhibition of "The
Four Day Revolution" would, therefore, be limited in character. The extent of
that intrusion, as this Court understands the synopsis of the proposed film,
may be generally described as such intrusion as is reasonably necessary to
keep that film a truthful historical account. Private respondent does not claim
that petitioners threatened to depict in "The Four Day Revolution" any part of
the private life of private respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of
public concern, that petitioners propose to film were taking place, private
respondent was what Profs. Prosser and Keeton have referred to as a "public
figure:"
"A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in
his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any other entertainer. The list
is, however, broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of
a lodge. It includes, in short, anyone who has arrived at a position where
public attention is focused upon him as a person.
 Such public figures were held to have lost, to some extent at
least, their right of privacy. Three reasons were given, more or less
indiscrimately, in the decisions that they had sought publicity and
consented to it, and so could not complain when they received it; that
their personalities and their affairs had already become public, and
could no longer be regarded as their own private business; and that the
press had a privilege, under the Constitution, to inform the public about
those who have become legitimate matters of public interest. On one or
another of these grounds, and sometimes all, it was held that there
was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of
public interest, was held to arise out of the desire and the right of the
public to know what is going on in the world, and the freedom of the
press and other agencies of information to tell it. 'News' includes all
events and items of information which are out of the ordinary humdrum
routine, and which have 'that indefinable quality of information which
arouses public attention.' To a very great extent the press, with its
experience or instinct as to what its readers will want, has succeeded in
making its own definition of news, as a glance at any morning
newspaper will sufficiently indicate. It includes homicide and other
crimes, arrests and police raides, suicides, marriages and divorces,
accidents, a death from the use of narcotics, a woman with a rare
disease, the birth of a child to a twelve year old girl, the reappearance of
one supposed to have been murdered years ago, and undoubtedly many
other similar matters of genuine, if more or less deplorable, popular
appeal.
The privilege of enlightening the public was not, however, limited
to the dissemination of news in the sense of current events. It extended
also to information or education, or even entertainment and amusement,
by books, articles, pictures, films and broadcasts concerning interesting
phases of human activity in general, as well as the reproduction of the
public scene in newsreels and travelogues. In determining where to draw
the line, the courts were invited to exercise a species of censorship over
what the public may be permitted to read; and they were understandably
liberal in allowing the benefit of the doubt." 15
Private respondent is a "public figure" precisely because, inter alia, of
his participation as a principal actor in the culminating events of the change of
government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make
reference to the role played by private respondent would be grossly
unhistorical. The right of privacy of a "public figure" is necessarily narrower
than that of an ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. He continues to be a "public figure."
After a successful political campaign during which his participation in the
EDSA Revolution was directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case
between the constitutional freedom of speech and of expression and the right
of privacy, may be marked out in terms of a requirement that the proposed
motion picture must be fairly truthful and historical in its presentation of
events. There must, in other words, be no knowing or reckless disregard of
truth in depicting the participation of private respondent in the EDSA
Revolution. 16 There must, further, be no presentation of the private life of the
unwilling private respondent and certainly no revelation of intimate or
embarrassing personal facts. 17 The proposed motion picture should not enter
into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters
of essentially private concern." 18 To the extent that "The Four Day
Revolution" limits itself in portraying the participation of private respondent in
the EDSA Revolution to those events which are directly and reasonably
related to the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and actionable.
Such portrayal may be carried out even without a license from private
respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy
informed this Court that a Temporary Restraining Order dated 25 March 1988,
was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati,
Branch 147, in Civil Case No. 88-413, entitled "Gregorio B.
Honasan vs. Ayer Productions Pty. Ltd., McElroy and McElroy
Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures
Production" enjoining him and his production company from further filming any
scene of the projected mini-series film. Petitioner alleged that Honasan's
complaint was a "scissors and paste" pleading, cut out straight from the
complaint of private respondent Ponce Enrile in Civil Case No. 88-151.
Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988,
brought to the attention of the Court the same information given by petitioner
Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was
substantially identical to that filed by private respondent herein and stating
that in refusing to join Honasan in Civil Case No. 88-151, counsel for private
respondent, with whom counsel for Gregorio Honasan are apparently
associated, deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on
13 April 1988 stating that the "slight similarity" between private respondent's
complaint and that of Honasan in the construction of their legal basis of the
 right to privacy as a component of the cause of action is understandable
considering that court pleadings are public records; that private respondent's
cause of action for invasion of privacy is separate and distinct from that of
Honasan's although they arose from the same tortious act of petitioners; that
the rule on permissive joinder of parties is not mandatory and that, the cited
cases on "forum shopping" were not in point because the parties here and
those in Civil Case No. 88-413 are not identical. LLpr

For reasons that by now have become clear, it is not necessary for the
Court to deal with the question of whether or not the lawyers of private
respondent Ponce Enrile have engaged in "forum shopping." It is, however,
important to dispose of the complaint filed by former Colonel Honasan who,
having refused to subject himself to the legal processes of the Republic and
having become once again a fugitive from justice, must be deemed to have
forfeited any right he might have had to protect his privacy through court
processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the
Order dated 16 March 1988 of respondent trial court granting a Writ of
Preliminary Injunction is hereby SET ASIDE. The limited Temporary
Restraining Order granted by this Court on 24 March 1988 is hereby
MODIFIED by enjoining unqualifiedly the implementation of respondent
Judge's Order of 16 March 1988 and made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and
4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary
Injunction or Restraining Order, the Court, in the exercise of its plenary and
supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil
Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his
Temporary Restraining Order dated 25 March 1988 and any Preliminary
Injunction that may have been issued by him. LLphil

No pronouncement as to costs.
SO ORDERED.
(Ayer Productions Pty. Ltd. v. Capulong, G.R. No. 82380, 82398, [April 29,
|||

1988], 243 PHIL 1007-1027)

Borjal vs. Court of Appeals [G.R. No. 126466, January 14, 1999]

[G.R. No. 126466. January 14, 1999.]

 ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO
SOLIVEN, petitioners, vs. COURT OF APPEALS and
FRANCISCO WENCESLAO,respondents.

Angara Abello Concepcion Regala & Cruz for petitioners.

Cenon C. Sorreta for private respondent.

SYNOPSIS

The case under consideration is a petition for review filed by petitioners

Arturo Borjal and Maximo Soliven seeking the
reversal of the Court of Appeals decision in "Francisco Wenceslao vs.
Arturo Borjal and Maximo Soliven," CA-GR No. 40496, holding on March 25,
1996 that petitioners are solidarily liable for damages for writing and publishing
certain articles claimed to be derogatory and offensive to private respondent
Francisco Wenceslao. SEcADa

The petition was impressed with merit. The Court ruled that in order to
maintain a libel suit, it is essential that the victim be identifiable although it is not
necessary that he be named. It is also not sufficient that the offended party
recognized himself as the person attacked or defamed, but is must be shown that
at least a third person could identify him as the object of the libelous publication.
Regrettably, these requisites have not been complied with in the case at bar.
Moreover, the Court said that even assuming that the contents of these articles
are false, mere error, inaccuracy or even falsity alone does not prove actual
malice. Errors or misstatement are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable care, the
press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some room
for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical
agencies in our democracy. Accordingly, the petition is granted and the
decision of the Court of Appeals and its resolution are reversed and set aside. CcEHaI

SYLLABUS

1. CRIMINAL LAW; LIBEL; TO MAINTAIN A LIBEL SUIT, IT IS

ESSENTIAL THAT THE VICTIM BE IDENTIFIABLE ALTHOUGH IT IS NOT
NECESSARY THAT HE BE NAMED. — In order to maintain a libel suit, it is
essential that the victim be identifiable although it is not necessary that he be
named. It is also not sufficient that the offended party recognized himself as the
person attacked or defamed, but it must be shown that at least a third person
could identify him as the object of the libelous publication. Regrettably, these
requisites have not been complied within the case at bar.
2. ID.; ID.; PUBLICATIONS WHICH ARE PRIVILEGED FOR
REASONS OF PUBLIC POLICY ARE PROTECTED BY THE
CONSTITUTIONAL GUARANTY OF FREEDOM OF SPEECH. — Indisputably,
petitioner Borjal's questioned writings are not within the exceptions of Art.
354 of the Revised Penal Code for, as correctly observed by the appellate court,
they are neither private communications nor fair and true report without any
comments or remarks. However this does not necessarily mean that they are not
privileged. To be sure, the enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since fair commentaries on
matters of public interest are likewise privileged. The rule on privileged
communications had its genesis not in the nation's penal code but in the
Bill of Rights of the Constitution guaranteeing freedom of speech and of the
press. As early as 1918, in United States vs. Cañete (38 Phil. 253),
this Court ruled that publications which are privileged for reasons of public policy
are protected by the constitutional guaranty of freedom of speech. This
constitutional right cannot be abolished by the mere failure of the legislature to
give it express recognition in the statute punishing libels. IDTHcA

3. ID.; ID.; PRIVILEGED COMMUNICATION; IMPLICIT IN

FREEDOM OF SPEECH. — The concept of privileged communications is implicit
in the freedom of the press. As held in Elizalde v. Gutierrez (76 SCRA 448) and
reiterated in Santos v. Court of Appeals (203 SCRA 110) — To be more
specific, no culpability could be imputed to petitioners for the alleged offending
publication without doing violence to the concept of privileged communications
implicit in the freedom of the press. As was so well put by Justice Malcolm
in Bustos: 'Public Policy, the welfare of society, and the orderly
administration of government have demanded protection of public opinion. The
inevitable and incontestable result has been the development and adoption of the
doctrine of privilege.' The doctrine formulated in these two (2) cases resonates
the rule that privileged communications must, sui generis, be protective of public
opinion. This closely adheres to the democratic theory of free speech as
essential to collective self-determination and eschews the strictly libertarian view
that it is protective solely of self-expression which, in the words of Yale Sterling
Professor Owen Fiss, makes its appeal to the individualistic ethos that so
dominates our popular and political culture. It is therefore clear that the restrictive
interpretation vested by the Court of Appeals on the penal provision exempting
from liability only private communications and fair and true report without
comments or remarks defeats, rather than promotes, the objective of the rule on
privileged communications, sadly contriving as it does, to suppress the healthy
efflorescence of public debate and opinion as shining linchpins of truly
democratic societies.
4. ID.; ID.; PUBLIC FIGURE; DEFINED. — We deem private respondent a
public figure within the purview of the New York Times ruling. At any rate, we
have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong (160
SCRA 861) as — . . . a person who, by his accomplishments, fame,
mode of living, or by adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs and his character, has become a
public personage. He is, in other words, a celebrity. Obviously, to be included in
his category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list is, however, broader than this.
It includes public officers, famous inventors and explorers, war heroes and even
ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted
Ruler of the lodge. It includes, in short, anyone who has arrived at a position
where the public attention is focused upon him as a person.
5. ID; ID; FAIR COMMENTARIES ON MATTERS OF PUBLIC INTEREST
ARE PRIVILEGED AND CONSTITUTE VALID DEFENSE IN AN ACTION FOR
LIBEL OR SLANDER. — To reiterate, fair commentaries on matters of public
interest are privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in general every
discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is
deemed, malicious, nevertheless, when the discreditable imputation is directed
against a public person in his public capacity, it is not necessarily actionable. In
order that such discreditable imputation to a public official may be actionable, it
must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on established
facts, then it is immaterial that the opinion happens to be mistaken, as long as it
might reasonably be inferred from the facts. cCSDTI

6. ID.; ID.; MALICE; DEFINED; ABSENT IN CASE AT BAR. — Malice

connotes ill will or spite and speaks not in response to duty but merely to injure
the reputation of the person defamed, and implies an intention to do ulterior and
unjustifiable harm. Malice is bad faith or bad motive. It is the essence of the
crime of libel. In the milieu obtaining, can it be reasonably inferred that in writing
and publishing the articles in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence that
petitioner was animated by a desire to inflict unjustifiable harm on his reputation,
or that the articles were written and published without good motives or justifiable
ends. On the other hand, we find petitioner Borjal to have acted in good faith.
Moved by a sense of civic duty and prodded by his responsibility as a
newspaperman, he proceeded to expose and denounce what he perceived to be
a public deception. Surely, we cannot begrudge him for that. Every citizen has
the right to enjoy a good name and reputation, but we do not consider that
petitioner Borjal has violated that right in this case nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be shown
to have been written or published with the knowledge that they are false or in
reckless disregard or whether they are false or not. "Reckless disregard of what
is false or not" means that the defendant entertains serious doubt as to the
truth of the publication, or that he possesses a high degree of awareness of their
probable falsity.
7. ID.; ID.; PUBLIC OFFICIAL MUST NOT BE TOO THIN-SKINNED WITH
REFERENCE TO COMMENTS UPON HIS OFFICIAL ACTS. — Even assuming
that the contents of the articles are false, mere error, inaccuracy or even falsity
alone does not prove actual malice. Errors or misstatements are inevitable in any
scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a
point of suppression, for honest mistakes or imperfections in the
choice of language. There must be some room for misstatement of fact as well
as for misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy.
In Bulletin Publishing Corp. v. Noel (167 SCRA 255) we held — A newspaper
especially one national in reach and coverage, should be free to report on events
and developments in which the public has a legitimate interest with minimum
fear of being hauled to court by one group or another on criminal or civil charges
for libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community. To
avoid the self-censorship that would necessarily accompany strict liability for
erroneous statements, rules governing liability for injury to reputation are required
to allow an adequate margin of error by protecting some inaccuracies. It is for the
same reason that the New York Times doctrine requires that liability for
defamation of a public official or public figure may not be imposed in the
absence of proof of "actual malice" on the part of the person making the libelous
statement. At any rate, it may be salutary for private respondent to ponder upon
the advice of Mr. Justice Malcolm expressed in U.S. vs. Bustos (37 Phil. 731
[1918]), that "the interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and unjust accusation; the wound may be assuaged by the
balm of a clear conscience. A public official must not be too thin-skinned with
reference to comments upon his official acts." EASCDH
 DECISION

"The question is not so much as who was aimed at as who was hit."
(Pound, J., in Corrigan v. Bobbs-Merill Co., 228 N .Y . 58 [1920]).

BELLOSILLO, J : p

PERPETUALLY HAGRIDDEN as the public is about losing one of the

most basic yet oft hotly contested freedoms of man, the issue of the
right of free expression bestirs and presents itself time and again, in cyclic
occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting
terrain, explore and furrow its heretofore uncharted moors and valleys and
finally redefine the metes and bounds of its controversial domain. This,
prominently, is one such case. LLphil

Perhaps, never in jurisprudential history has any freedom of man

undergone radical doctrinal metamorphoses than his right to freely and openly
express his views. Blackstone's pontifical comment that "where blasphemous,
immoral, treasonable, schismatical, seditious, or scandalous libels are
punished by English law . . . the liberty of the press, properly understood, is
by no means infringed or violated," found kindred expression in the landmark
opinion of England's Star Chamber in the Libelis Famosis case in 1603. 1 That
case established two major propositions in the prosecution of defamatory
remarks: first, that libel against a public person is a greater offense than one
directed against an ordinary man, and second, that it is immaterial that the
libel be true.
Until republicanism caught fire in early America, the view from the top
on libel was no less dismal. Even the venerable Justice Holmes appeared to
waffle as he swayed from the concept of criminal libel liability under the clear
and present danger rule, to the other end of the spectrum in defense of the
constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and
communication technology, libel principles formulated at one time or another
have waxed and waned through the years in the constant ebb and
flow of judicial review. At the very least, these principles have lost
much of their flavor, drowned and swamped as they have been by the
ceaseless cacophony and din of thought and discourse emanating from just
about every source and direction, aided no less by an increasingly powerful
and irrepressible mass media. Public discourse, laments Knight, has been
devalued by its utter commonality; and we agree, for its logical effect is to
benumb thought and sensibility on what may be considered as criminal
illegitimate encroachments on the right of persons to enjoy a good, honorable
and reputable name. This may explain the imperceptible demise of criminal
prosecutions for libel and the trend to rely instead on indemnity suits to repair
any damage on one's reputation.
In this petition for review, we are asked to reverse
the Court of Appeals in "Francisco Wenceslao v. Arturo Borjal and Maximo
Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners
Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing
and publishing certain articles claimed to be derogatory and offensive to
private respondent Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the
incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc.,
owner of The Philippine Star, a daily newspaper. At the time the complaint
was filed, petitioner Borjal was its President while Soliven was (and still is)
Publisher and Chairman of its Editorial Board. Among the regular
writers of The Philippine Star is Borjal who runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil
engineer, businessman, business consultant and journalist by profession. In
1988 he served as a technical adviser of Congressman Fabian Sison, then
Chairman of the House of Representatives Sub-Committee on Industrial
Policy.
During the congressional hearings on the transport crisis sometime in
September 1988 undertaken by the House Sub-Committee on Industrial
Policy, those who attended agreed to organize the First National Conference
on Land Transportation (FNCLT) to be participated in by the private sector in
the transport industry and government agencies concerned in order to find
ways and means to solve the transportation crisis. More importantly, the
objective of the FNCLT was to draft an omnibus bill that would embody a
long-term land transportation policy for presentation to Congress. The
conference which, according to private respondent, was estimated to cost
around P1,815,000.00 would be funded through solicitations from various
sponsors such as government agencies, private organizations, transport
firms, and individual delegates or participants. 2
On 28 February 1989, at the organizational meeting of the FNCLT,
private respondent Francisco Wenceslao was elected Executive Director. As
such, he wrote numerous solicitation letters to the business community for the
support of the conference.
Between May and July 1989 a series of articles written by
petitioner Borjal was published on different dates in his column Jaywalker.
The articles dealt with the alleged anomalous activities of an "organizer of a
conference" without naming or identifying private respondent. Neither did it
refer to the FNCLT as the conference therein mentioned. Quoted hereunder
are excerpts from the articles of petitioner together with the dates they were
published 3 —
31 May 1989
Another self-proclaimed 'hero' of the EDSA Revolution goes
around organizing 'seminars and conferences' for a huge fee. This is a
simple ploy coated in jazzy letterheads and slick prose. The 'hero' has
the gall to solicit fees from anybody with bucks to spare. Recently, in his
usual straightforward style, Transportation Secretary Rainerio 'Ray'
Reyes, asked that his name be stricken off from the letterheads the
'hero' has been using to implement one of his pet 'seminars.' Reyes
said: 'I would like to reiterate my request that you delete my name.' Note
that Ray Reyes is an honest man who would confront anybody eyeball
to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its
unauthorized use of the names of President Aquino and Secretary Ray
Reyes. The conference program being circulated claims that President
Aquino and Reyes will be main speakers in the conference. Yet, the
word is that Cory and Reyes have not accepted the invitation to appear
in this confab. Ray Reyes even says that the conference should be
unmasked as a moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer
to every Tom, Dick and Harry and to almost all government agencies.
And the letterheads carried the names of Reyes and Periquet. Agrarian
Reform Secretary on leave Philip Juico received one, but he decided to
find out from Reyes himself what the project was all about. Ray Reyes,
in effect, advised Juico to put the fund solicitation letter in the waste
basket. Now, if the 3,000 persons and agencies approached by the
organizer shelled out 1,000 each, that's easily P3 million to a project that
seems so unsophisticated. But note that one garment company gave
P100,000, after which the Garments Regulatory Board headed by Trade
and Industry Undersecretary Gloria Macapagal-Arroyo was approached
by the organizer to expedite the garment license application of the
P100,000 donor.
21 June 1989
A 'conference organizer' associated with shady deals seems to
have a lot of trash tucked inside his closet. The Jaywalker continues to
receive information about the man's dubious deals. His notoriety,
according to reliable sources, has reached the Premier Guest House
where his name is spoken like dung.
 xxx xxx xxx
The first information says that the 'organizer' tried to mulct half a
million pesos from a garment producer and exporter who was being
investigated for violation of the rules of the Garments, Textile,
Embroidery and Apparel Board. The 'organizer' told the garment
exporter that the case could be fixed for a sum of P500,000.00. The
organizer got the shock of his life when the exporter told him: 'If I have
that amount, I will hire the best lawyers, not you.' The organizer left in a
huff, his thick face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the
Jaywalker more 'dope' on the 'organizer.' It seems that he was not only
indiscreet; he even failed to cover his tracks. You will be hearing
more of the 'organizer's' exploits from this corner soon.
22 June 1989
The scheming 'organizer' we have been writing about seems to
have been spreading his wings too far. A congressional source has
informed the Jaywalker that the schemer once worked for a
congressman from the North as some sort of a consultant on economic
affairs. The first thing the "organizer" did was to initiate hearings and
round-the-table discussions with people from the business, export and
— his favorite — the garments sector.
xxx xxx xxx
The 'organizer's' principal gamely went along, thinking that his
'consultant' had nothing but the good of these sectors in mind. It was
only later that he realized that the 'consultant' was acting with a
burst of energy 'in aid of extortion.' The 'consultant' was fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his
dubious ways. He has tried to operate under a guise of a well-meaning
reformist. He has intellectual pretensions — and sometimes he
succeeds in getting his thoughts in the inside pages of some
newspapers, with the aid of some naive newspaper people. He has
been turning out a lot of funny-looking advice on investments, export
growth, and the like.
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad
power to ban crooks and influence-peddlers from entering the
premises of his department. But the Cabinet man might not get his wish.
There is one 'organizer' who, even if physically banned, can still concoct
 ways of doing his thing. Without a tinge of remorse, the 'organizer'
could fill up his letterheads with names of Cabinet members,
congressmen, and reputable people from the private sector to shore up
his shady reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The
attendance was very poor and the few who participated in the affair were
mostly leaders of jeepney drivers' groups. None of the government
officials involved in regulating public transportation was there. The big
names in the industry also did not participate. With such a poor
attendance, one wonders why the conference organizers went ahead
with the affair and tried so hard to convince 3,000 companies and
individuals to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail.
The personalities who count in the field of transportation refused to
attend the affair or withdrew their support after finding out the
background of the organizer of the conference. How could a conference
on transportation succeed without the participation of the big names in
the industry and government policy-makers?
Private respondent reacted to the articles. He sent a letter to The
Philippine Star insisting that he was the "organizer" alluded to in
petitioner Borjal's columns. 4 In a subsequent letter to The Philippine Star,
private respondent refuted the matters contained in petitioner Borjal's columns
and openly challenged him in this manner —
To test if Borjal has the guts to back up his holier than thou
attitude, I am prepared to relinquish this position in case it is found that I
have misappropriated even one peso of FNCLT money. On the other
hand, if I can prove that Borjal has used his column as a 'hammer' to get
clients for his PR Firm, AA Borjal Associates, he should resign from the
STAR and never again write a column. Is it a deal? 5
Thereafter, private respondent filed a complaint with the National Press
Club (NPC) against petitioner Borjal for unethical conduct. He accused
petitioner Borjal of using his column as a form of leverage to obtain contracts
for his public relations firm, AA Borjal Associates. 6 In turn,
petitioner Borjal published a rejoinder to the challenge of private respondent
not only to protect his name and honor but also to refute the claim that he was
using his column for character assassination. 7
Apparently not satisfied with his complaint with the NPC, private
respondent filed a criminal case for libel against petitioners Borjal and Soliven,
among others. However, in a Resolution dated 7 August 1990, the Assistant
Prosecutor handling the case dismissed the complaint for
insufficiency of evidence. The dismissal was sustained by the
Department of Justice and later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a
civil action for damages based on libel subject of the instant case. 8 In their
answer, petitioners interposed compulsory counterclaims for actual, moral and
exemplary damages, plus attorney's fees and costs. After due consideration,
the trial court decided in favor of private respondent Wenceslao and ordered
petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00
for actual and compensatory damages, in addition to P200,000.00 for moral
damages, P100,000.00 for exemplary damages, P200,000.00 for attorney's
fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but
reduced the amount of the monetary award to P110,000.00 actual damages,
P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a
20-page Decision promulgated 25 March 1996, the appellate court ruled inter
alia that private respondent was sufficiently identifiable, although not named,
in the questioned articles; that private respondent was in fact defamed by
petitioner Borjal by describing him variously as a "self-proclaimed hero," "a
conference organizer associated with shady deals who has a lot of trash
tucked inside his closet," "thick face," and "a person with dubious ways;" that
petitioner's claim of privilege communication was unavailing since the
privileged character of the articles was lost by their publication in a
newspaper of general circulation; that petitioner could have performed his
office as a newspaperman without necessarily transgressing the
rights of Wenceslao by calling the attention of the government offices
concerned to examine the authority by which Wenceslao acted, warning the
public against contributing to a conference that, according to his perception,
lacked the univocal indorsement of the responsible government officials, or
simply informing the public of the letters Wenceslao wrote and the favors he
requested or demanded; and, that when he imputed dishonesty, falsehood
and misrepresentation, shamelessness and intellectual pretensions to
Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair
comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the
appellate court's decision which reduced the amount of damages awarded
him by filing with this Court a Petition for Extension of Time to File
Petition and a Motion for Suspension of Time to File Petition. 9 However, in a
Resolution dated 27 May 1996, the Second Division denied both motions: the
first, for being premature, and the second, for being a wrong remedy.
 On 20 November 1996 when the First Division consolidated and
transferred the present case to the Second Division, there was no longer any
case thereat with which to consolidate this case since G.R. No. 124396 had
already been disposed of by the Second Division almost six (6) months
earlier.
On their part, petitioners filed a motion for reconsideration but
the Court of Appeals denied the motion in its Resolution of 12 September
1996. Hence the instant petition for review. The petitioners contend that
the Court of Appeals erred: (a) in ruling that private respondent Wenceslao
was sufficiently identified by petitioner Borjal in the questioned articles; (b) in
refusing to accord serious consideration to the findings of the
Department of Justice and the Office of the President that private respondent
Wenceslao was not sufficiently identified in the questioned articles, this
notwithstanding that the degree of proof required in a preliminary investigation
is merely prima facie evidence which is significantly less than the
preponderance of evidence required in civil cases; (c) in ruling that the subject
articles do not constitute qualifiedly privileged communication; (d) in refusing
to apply the "public official doctrine" laid down in New York Times v. Sullivan;
(e) in ruling that the questioned articles lost their privileged character
because of their publication in a newspaper of general circulation; (f) in ruling
that private respondent has a valid cause of action for libel against petitioners
although he failed to prove actual malice on their part, and that the
prosecutors of the City of Manila, the Department of Justice, and eventually,
the Office of the President, had already resolved that there was no sufficient
evidence to prove the existence of libel; and, (g)
assuming arguendo that Borjal should be held liable, in adjudging petitioner
Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the
appellate court's ruling, the dismissal of the complaint against them for
lack of merit, and the award of damages on their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is
essential that the victim be identifiable although it is not necessary that he be
named. It is also not sufficient that the offended party recognized himself as
the person attacked or defamed, but it must be shown that at least a third
person could identify him as the object of the libelous
publication. 10 Regrettably, these requisites have not been complied with in
the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's
column writings sufficiently identified Wenceslao as the "conference
organizer." It cited the First National Conference on Land Transportation, the
letterheads used listing different telephone numbers, the
donation of P100,000.00 from Juliano Lim and the reference to the
"organizer of the conference" — the very same appellation employed in all the
column items — as having sufficiently established the identity of private
respondent Wenceslao for those who knew about the FNCLT who were
present at its inception, and who had pledged their assistance to it. cdasia

We hold otherwise. These conclusions are at variance with the

evidence at hand. The questioned articles written by Borjal do not identify
private respondent Wenceslao as the organizer of the conference. The
first of the Jaywalker articles which appeared in the 31 May 1989 issue of The
Philippine Star yielded nothing to indicate that private respondent was the
person referred to therein. Surely, as observed by petitioners, there were
millions of "heroes" of the EDSA Revolution and anyone of them could be
"self-proclaimed" or an "organizer of seminars and conferences." As a
matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-
called First National Conference on Land Transportation whose principal
organizers are not specified" (italics supplied). 11 Neither did the FNCLT
letterheads 12 disclose the identity of the conference organizer since these
contained only an enumeration of names where private respondent Francisco
Wenceslao was described as Executive Director and Spokesman and not as
a conference organizer. 13 The printout 14 and tentative program 15 of the
conference were devoid of any indication of Wenceslao as organizer. The
printout which contained an article entitled "Who Organized the NCLT ?" did
not even mention private respondent's name, while the tentative program only
denominated private respondent as "Vice Chairman and Executive Director,"
and not as organizer.
No less than private respondent himself admitted that the FNCLT
had several organizers and that he was only a part of the organization, thus
—
I would like to clarify for the record that I was only a part of the
organization. I was invited then because I was the head of the technical
panel of the House of Representatives Sub-Committee on Industrial
Policy that took care of congressional hearings. 16
Significantly, private respondent himself entertained doubt that he was
the person spoken of in Borjal's columns. The former even called up
columnist Borjal to inquire if he (Wenceslao) was the one referred to in the
subject articles. 17 His letter to the editor published in the 4 June 1989
issue of The Philippine Star even showed private respondent Wenceslao's
uncertainty —
Although he used a subterfuge, I was almost certain that
Art Borjal referred to the First National Conference on Land
Transportation (June 29-30) and me in the second paragraph of his May
31 column . . . 18
 Identification is grossly inadequate when even the alleged offended
party is himself unsure that he was the object of the verbal attack. It is well to
note that the revelation of the identity of the person alluded to came not from
petitioner Borjal but from private respondent himself when he supplied the
information through his 4 June 1989 letter to the editor. Had private
respondent not revealed that he was the "organizer" of the FNCLT referred to
in the Borjal articles, the public would have remained in blissful
ignorance of his identity. It is therefore clear that on the
element of identifiability alone the case falls.
The above disquisitions notwithstanding, and on the
assumption arguendo that private respondent has been sufficiently identified
as the subject of Borjal's disputed comments, we now proceed to resolve the
other issues and pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the
primary question of whether the disputed articles constitute privileged
communications as to exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the
proposition that his articles are privileged in character under the
provisions of Art. 354 of The Revised Penal Code which state —
Art. 354. Requirement for publicity. — Every defamatory
imputation is presumed to be malicious, even if it be true, if no good
intention and justifiable motive for making it is shown, except in the
following cases:
1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Respondent court explained that the writings in question did not fall
under any of the exceptions described in the above-quoted article since these
were neither "private communications" nor "fair and true report . . . without any
comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or
qualifiedly privileged. Absolutely privileged communications are those which
are not actionable even if the author has acted in bad faith. An example is
found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a
member of Congress from liability for any speech or debate in the Congress
or in any Committee thereof. Upon the other hand, qualifiedly privileged
communications containing defamatory imputations are not actionable unless
found to have been made without good intention or justifiable motive. To this
genre belong "private communications" and "fair and true report without any
comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the
exceptions of Art. 354 of The Revised Penal Code for, as correctly observed
by the appellate court, they are neither private communications nor fair and
true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration
under Art. 354 is not an exclusive list of qualifiedly privileged communications
since fair commentaries on matters of public interest are likewise
privileged. The rule on privileged communications had its genesis not in the
nation's penal code but in the Bill of Rights of the Constitution guaranteeing
freedom of speech and of the press. 19 As early as 1918, in United States v.
Cañete, 20 this Court ruled that publications which are privileged for
reasons of public policy are protected by the constitutional
guaranty of freedom of speech. This constitutional right cannot be abolished
by the mere failure of the legislature to give it express recognition in the
statute punishing libels.
The concept of privileged communications is implicit in the
freedom of the press. As held in Elizalde v. Gutierrez 21 and reiterated
in Santos v. Court of Appeals 22 —
To be more specific, no culpability could be imputed to petitioners
for the alleged offending publication without doing violence to the
concept of privileged communications implicit in the freedom of the
press. As was so well put by Justice Malcolm in Bustos: 'Public policy,
the welfare of society, and the orderly administration of government have
demanded protection of public opinion. The inevitable and incontestable
result has been the development and adoption of the
doctrine of privilege.'
The doctrine formulated in these two (2) cases resonates the rule that
privileged communications must, sui generis, be protective of public opinion.
This closely adheres to the democratic theory of free speech as essential to
collective self-determination and eschews the strictly libertarian view that it is
protective solely of self-expression which, in the words of Yale Sterling
Professor Owen Fiss, 23 makes its appeal to the individualistic ethos that so
dominates our popular and political culture. It is therefore clear that the
restrictive interpretation vested by the Court of Appeals on the penal provision
exempting from liability only private communications and fair and true report
without comments or remarks defeats, rather than promotes, the
objective of the rule on privileged communications, sadly contriving as it does,
to suppress the healthy efflorescence of public debate and opinion as shining
linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel or slander. The
doctrine of fair comment means that while in general every discreditable
imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable imputation is directed
against a public person in his public capacity, it is not necessarily actionable.
In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment
based on a false supposition. If the comment is an expression of opinion,
based on established facts, then it is immaterial that the opinion happens to
be mistaken, as long as it might reasonably be inferred from the facts. 24
There is no denying that the questioned articles dealt with
matters of public interest. In his testimony, private respondent spelled out the
objectives of the conference thus —
. . . The principal conference objective is to come up with a
draft of an Omnibus Bill that will embody a long term land transportation
policy for presentation to Congress in its next regular session in July.
Since last January, the National Conference on Land Transportation
(NCLT), the conference secretariat, has been enlisting support from all
sectors to ensure the success of the project. 25
Private respondent likewise testified that the FNCLT was raising funds
through solicitation from the public —
Q: Now, in this first letter, you have attached a budget and it says here
that in this seminar of the First National Conference on Land
Transportation, you will need around One million eight hundred
fifteen thousand pesos, is that right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your
seminar?
A: Well, from sponsors such as government agencies and private
sectors or organizations as well as individual transport firms and
from individual delegates/participants. 26
The declared objective of the conference, the composition of its
members and participants, and the manner by which it was intended to be
funded no doubt lend to its activities as being genuinely imbued with public
interest. An organization such as the FNCLT aiming to reinvent and reshape
the transportation laws of the country and seeking to source its funds for the
project from the public at large cannot dissociate itself from the public
character of its mission. As such, it cannot but invite close scrutiny by the
media obliged to inform the public of the legitimacy of the purpose of the
activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York
Times v. Sullivan 27 which the appellate court failed to consider or, for that
matter, to heed. It insisted that private respondent was not, properly speaking,
a "public official" nor a "public figure," which is why the defamatory
imputations against him had nothing to do with his task of organizing the
FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in
the 1960s at the height of the bloody rioting in the American South over racial
segregation. The then City Commissioner L. B. Sullivan of Montgomery,
Alabama, sued New York Times for publishing a paid political advertisement
espousing racial equality and describing police atrocities committed against
students inside a college campus. As commissioner having charge over police
actions Sullivan felt that he was sufficiently identified in the ad as the
perpetrator of the outrage; consequently, he sued New York Times on the
basis of what he believed were libelous utterances against him.
The U.S. Supreme Court speaking through Mr. Justice William J.
Brennan Jr. ruled against Sullivan holding that honest criticisms on the
conduct of public officials and public figures are insulated from libel
judgments. The guarantees of freedom of speech and press prohibit a public
official or public figure from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made
with actual malice, i.e., with knowledge that it was false or with reckless
disregard of whether it was false or not.
The raison d'etre for the New York Times doctrine was that to require
critics of official conduct to guarantee the truth of all their factual assertions on
pain of libel judgments would lead to self-censorship, since would-be critics
would be deterred from voicing out their criticisms even if such were believed
to be true, or were in fact true, because of doubt whether it could be proved or
because of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within
the purview of the New York Times ruling. At any rate, we have also defined
"public figure" in Ayers Production Pty., Ltd. v. Capulong 29 as —
. . . a person who, by his accomplishments, fame, mode of living,
or by adopting a profession or calling which gives the public a legitimate
interest in his doings, his affairs and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously, to be included
in this category are those who have achieved some degree of reputation
 by appearing before the public, as in the case of an actor, a professional
baseball player, a pugilist, or any other entertainer. The list is, however,
broader than this. It includes public officers, famous inventors and
explorers, war heroes and even ordinary soldiers, infant prodigy,
and no less a personage than the Great Exalted Ruler of the lodge. It
includes, in short, anyone who has arrived at a position where the public
attention is focused upon him as a person.
The FNCLT was an undertaking infused with public interest. It was
promoted as a joint project of the government and the private sector, and
organized by top government officials and prominent businessmen. For this
reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive
Director and spokesman, private respondent consequently assumed the
status of a public figure.
But even assuming ex-gratia argumenti that private respondent, despite
the position he occupied in the FNCLT, would not qualify as a public figure, it
does not necessarily follow that he could not validly be the subject of a public
comment even if he was not a public official or at least a public figure, for he
could be, as long as he was involved in a public issue. If a matter is a
subject of public or general interest, it cannot suddenly become less so
merely because a private individual is involved or because in some sense the
individual did not voluntarily choose to become involved. The public's primary
interest is in the event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not the participant's
prior anonymity or notoriety. 30
There is no denying that the questioned articles dealt with
matters of public interest. A reading of the
imputations of petitioner Borjal against respondent Wenceslao shows that all
these necessarily bore upon the latter's official conduct and his moral and
mental fitness as Executive Director of the FNCLT. The nature and
functions of his position which included solicitation of funds,
dissemination of information about the FNCLT in order to generate interest in
the conference, and the management and coordination of the various
activities of the conference demanded from him utmost honesty, integrity and
competence. These are matters about which the public has the right to be
informed, taking into account the very public character of the conference itself.
Concededly, petitioner Borjal may have gone overboard in the language
employed describing the "organizer of the conference." One is tempted to
wonder if it was by some mischievous gambit that he would also dare test the
limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter
how intemperate or deprecatory the utterances appear to be, the privilege is
not to be defeated nor rendered inutile for, as succinctly expressed by Mr.
Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues
should be uninhibited, robust and wide open, and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on the
government and public officials." 31
The Court of Appeals concluded that since malice is always presumed
in the publication of defamatory matters in the absence of proof to the
contrary, the question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from
defamatory words, the privileged character of a communication destroys the
presumption of malice. 32 The onus of proving actual malice then lies on
plaintiff, private respondent Wenceslao herein. He must bring home to the
defendant, petitioner Borjal herein, the existence of malice as the true
motive of his conduct. 33
Malice connotes ill will or spite and speaks not in response to duty but
merely to injure the reputation of the person defamed, and implies an intention
to do ulterior and unjustifiable harm. 34 Malice is bad faith or bad motive. 35 It
is the essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and
publishing the articles in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant
evidence that petitioner was animated by a desire to inflict unjustifiable
harm on his reputation, or that the articles were written and published without
good motives or justifiable ends. On the other hand, we find
petitioner Borjal to have acted in good faith. Moved by a sense of civic duty
and prodded by his responsibility as a newspaperman, he proceeded to
expose and denounce what he perceived to be a public deception. Surely, we
cannot begrudge him for that. Every citizen has the right to enjoy a good
name and reputation, but we do not consider that petitioner Borjal has violated
that right in this case nor abused his press freedom. LLphil

Furthermore, to be considered malicious, the libelous statements must

be shown to have been written or published with the knowledge that they are
false or in reckless disregard of whether they are false or not. 37 "Reckless
disregard of what is false or not" means that the defendant entertains serious
doubt as to the truth of the publication, 38 or that he possesses a high
degree of awareness of their probable falsity. 39
The articles subject of the instant case can hardly be said to have been
written with knowledge that these are false or in reckless disregard of what is
false or not. This is not to say however that the very serious
allegations of petitioner Borjal assumed by private respondent to be directed
against him are true. But we nevertheless find these at least to have been
based on reasonable grounds formed after the columnist conducted several
personal interviews and after considering the varied documentary evidence
provided him by his sources. Thus, the following are supported by
documentary evidence: (a) that private respondent requested Gloria
Macapagal-Arroyo, then head of the Garments and Textile Export Board
(GTEB), to expedite the processing and release of the import approval and
certificate of availability of a garment firm in exchange for the monetary
contribution of Juliano Lim, which necessitated a reply from the office of Gloria
Macapagal-Arroyo explaining the procedure of the GTEB in processing
applications and clarifying that all applicants were treated equally; 40 (b) that
Antonio Periquet was designated Chairman of the Executive Committee of the
FNCLT notwithstanding that he had previously declined the offer; 41 and, (c)
that despite the fact that then President Aquino and her
Secretary of Transportation Rainerio Reyes declined the invitation to be guest
speakers in the conference, their names were still included in the
printout of the FNCLT. 42 Added to these are the admissions of private
respondent that: (a) he assisted Juliano Lim in his application for a quota
allocation with the GTEB in exchange for monetary contributions to the
FNCLT; 43 (b) he included the name of then Secretary of Transportation
Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the
FNCLT; 44 and, (c) he used different letterheads and telephone numbers. 45
Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care, the press should not
be held to account, to a point of suppression, for honest mistakes or
imperfections in the choice of language. There must be some room for
misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as
critical agencies in our democracy. 46 In Bulletin Publishing Corp. v.
Noel 47 we held —
A newspaper especially one national in reach and coverage,
should be free to report on events and developments in which the public
has a legitimate interest with minimum fear of being hauled to court by
one group or another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of morality and
civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict
liability for erroneous statements, rules governing liability for injury to
reputation are required to allow an adequate margin of error by protecting
some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or public
figure may not be imposed in the absence of proof of "actual malice" on the
part of the person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon
the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos, 48 that "the
interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life
may suffer under a hostile and unjust accusation; the wound may be
assuaged by the balm of a clear conscience. A public official must not be too
thin-skinned with reference to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned
errors moot and academic, hence, we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media
practitioners of the high ethical standards attached to and demanded by their
noble profession. The danger of an unbridled irrational exercise of the
right of free speech and press, that is, in utter contempt of the rights of others
and in willful disregard of the cumbrous responsibilities inherent in it, is the
eventual self-destruction of the right and the regression of human society into
a veritable Hobbesian state of nature where life is short, nasty and brutish.
Therefore, to recognize that there can be no absolute "unrestraint" in speech
is to truly comprehend the quintessence of freedom in the
marketplace of social thought and action, genuine freedom being that which is
limned by the freedom of others. If there is freedom of the press, ought there
not also be freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr. Justice
Frankfurter has warned, "[W]ithout . . . a lively sense of responsibility, a free
press may readily become a powerful instrument of injustice." 49
Lest we be misconstrued, this is not to diminish nor constrict that space
in which expression freely flourishes and operates. For we have always
strongly maintained, as we do now, that freedom of expression is man's
birthright — constitutionally protected and guaranteed, and that it has become
the singular role of the press to act as its "defensor fidei" in a democratic
society such as ours. But it is also worth keeping in mind that the press is the
servant, not the master, of the citizenry, and its freedom does not carry with it
an unrestricted hunting license to prey on the ordinary citizen. 50
On petitioners' counterclaim for damages, we find the evidence too
meager to sustain any award. Indeed, private respondent cannot be said to
have instituted the present suit in abuse of the legal processes and with
hostility to the press; or that he acted maliciously, wantonly, oppressively,
 fraudulently and for the sole purpose of harassing petitioners, thereby entitling
the latter to damages. On the contrary, private respondent acted within his
rights to protect his honor from what he perceived to be malicious imputations
against him. Proof and motive that the institution of the action was prompted
by a sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law could not
have meant to impose a penalty on the right to litigate, nor should counsel's
fees be awarded every time a party wins a suit. 51
For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co. 52 —
Every man has a right to discuss matters of public interest. A
clergyman with his flock, an admiral with his fleet, a general with his
army, a judge with his jury, we are, all of us, the subject of public
discussion. The view of our court has been thus stated: 'It is only in
despotisms that one must speak sub rosa, or in whispers, with bated
breath, around the corner, or in the dark on a subject touching the
common welfare. It is the brightest jewel in the crown of the law to speak
and maintain the golden mean between defamation, on one hand, and a
healthy and robust right of free public discussion, on the other.'
WHEREFORE, the petition is GRANTED. The
Decision of the Court of Appeals of 25 March 1996 and its Resolution of 12
September 1996 denying reconsideration are REVERSED and SET ASIDE,
and the complaint for damages against petitioners is DISMISSED. Petitioners'
counterclaim for damages is likewise DISMISSED for
lack of merit. No costs.cda

SO ORDERED.
(Borjal v. Court of Appeals, G.R. No. 126466, [January 14, 1999], 361 PHIL 1-
|||

29)
Reyes vs. Bagatsing [G.R. No. L-65366, November 9, 1983]

[G.R. No. L-65366. November 9, 1983.]

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION

(ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the
City of Manila, respondent.

Lorenzo M. Tañada, Jose W. Diokno and Haydee B. Yorac for

petitioner.
The Solicitor General for respondent.
 SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF

EXPRESSION AND PEACEFUL ASSEMBLY; LIBERTY TO DISCUSS AND
MEET WITHOUT CENSORSHIP UNLESS THERE IS CLEAR DANGER OF A
SUBSTANTIVE EVIL. — Free speech, like free press, may be identified with
the liberty to discuss publicly and truthfully any matter of public concern
without censorship or punishment. There is to be then no previous restraint on
the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings
unless there be a "clear and present danger of a substantive evil that the
State has a right to prevent." Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is
not to be limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent.
2. ID.; ID.; ID.; INSEPARABLE RIGHTS THE LIMITATION OF WHICH
IS SUBJECT TO JUDICIAL EXAMINATION. — In Thomas v. Collins, 323 US
516 (1945), the American Supreme Court held that it was not by accident or
coincidence that the rights to freedom of speech and of the press were
coupled in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where
there is a limitation placed on the exercise of the right, the judiciary is called
upon to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a character both
grave and imminent, of a serious evil to public safety, public morals, public
health, of other legitimate public interest (Cf. Schneider v. Irvington, 308 US
147 (1939).
3. ID.; ID.; ID.; RIOTOUS CONDUCT MUST BE AVOIDED IN THE
EXERCISE OF THESE CONSTITUTIONAL RIGHTS. — What is guaranteed
is peaceable assembly. One may not advocate disorder in the name of
protest, much less preach rebellion under the cloak of dissent.
The Constitution frowns on disorder or tumult attending a rally or assembly.
Resort to force is ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an early Philippine case,
penned in 1907 to be precise, United States v. Apurado, 7 Phil. 422, "It is
rather to be expected that more or less disorder will mark the public assembly
of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievances and the more intense the feeling,
the less perfect, as a rule, will be the disciplinary control of the leaders over
their irresponsible followers." It bears repeating that for the constitutional right
to be invoked, riotous conduct, injury to property, and acts of vandalism must
be avoided. To give free rein to one's destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty its our scheme of values.
4. ID.; ID.; ID.; NO VALID OBJECTION EXISTS ON THE CHOICE OF
PLACE FOR THE MARCH AND RALLY, PROCUREMENT OF LICENSE
FOR USE OF PUBLIC STREETS NOT AN UNCONSTITUTIONAL
ABRIDGEMENT OF ONE'S CONSTITUTIONAL RIGHT. — There can
be no valid reason why a permit should not be granted for the proposed
march and rally starting from a public park that is the Luneta. Neither can
there be any valid objection to the use of the streets to the gates of the US
Embassy, hardly two blocks away at the Roxas Boulevard. Primicias v.
Fugoso has resolved any lurking doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a permit for a public meeting
at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion
finds support in the decision in the case of Willis Cox vs. State of New
Hampshire, 312 U.S. 569. . . ." The Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the judgment of the
State Supreme Court, held that "a statute requiring persons using the public
streets for a parade or procession to procure a special license therefor from
the local authorities is not an unconstitutional abridgment of the rights of
assembly or of freedom of speech and press, where, as the statute is
construed by the state courts, the licensing authorities are strictly limited, in
the issuance, to a consideration of the time, place, and manner of the parade
or procession, with a view to conserving the public convenience and of
affording an opportunity to provide proper policing, and are not invested with
arbitrary discretion to issue or refuse license, . . . , " 80 Phil, at 78.
5. ID.; ID.; ID.; FREEDOM OF ACCESS TO PUBLIC PARKS AND
STREETS; PURPOSE OF APPLICANT DETERMINATIVE OF THE USE
THEREOF. — It is settled law that as to public places, especially so as to
parks and streets, there is freedom of access. Nor is their use dependent on
who is the applicant for the permit, whether an individual or a group. If it were,
then the freedom of access becomes discriminatory access, giving rise to an
equal protection question. The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The question, if the rights
of free speech and peaceable assembly are to be preserved, is not as to the
auspices under which the meeting is held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects" (De Jorge v.
Oregon, 299 US 353, 364 (1937).
6. ID.; ID.; ID.; LICENSING AUTHORITIES ARE NOT INVESTED WITH
ARBITRARY DISCRETION TO ISSUE OR REFUSE LICENSE. — There
could he danger to public peace and safety if such a gathering were marked
by turbulence. That would deprive it of its peaceful character. Even then, only
the guilty parties should be held accountable. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. While prudence requires that there
be a realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the assumption —
especially so where the assembly is scheduled for a specific public place — is
that the permit must he for the assembly being held there. The exercise of
such a right, in the language of Justice Roberta, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in
some other place."
7. ID.; ID.; ID.; ID.; NON-EXISTENCE IN CASE AT BAR A CLEAR AND
PRESENT DANGER TO JUSTIFY A DENIAL OF A PERMIT. — While the
general rule is that a permit should recognize the right of the applicants to
hold their assembly at a public place of their choice, another place may be
designated by the licensing authority if it be shown that there is a clear and
present danger of a substantive evil if no such change were made. In
the Navarro and the Pagkakaisa decisions, G.R. No. L-31687, February 26,
1970 and G.R. No. 60294, April 30, 1982, this Court was persuaded that the
clear and present danger test was satisfied. The present situation is quite
different. Hence the decision reached by the Court. The mere assertion that
subversives may infiltrate the ranks of the demonstrators does not suffice.
8. ID.; ID.; ID.; ID.; REFUSAL OR MODIFICATION OF APPLICATION
FOR PERMIT SUBJECT TO CLEAR AND PRESENT DANGER TEST. —
The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should be filed
well ahead in time to enable the public official concerned to appraise whether
there may be valid objections to the grant of the permit or to its grant but at
another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent sad grave
danger of a substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority.
 9. ID.; ID.; ID.; RESPECT AND DEFERENCE ACCORDED TO THESE
PREFERRED RIGHTS. — Free speech and peaceable assembly, along with
other intellectual freedom, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary, — even more
so than on the other departments — rests the grave and delicate
responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course, dispense with
what has been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of suds rights, enjoying as they do
precedence and primacy.
10. ID.; ID.; ID.; VIOLATION OF ORDINANCE 7295 NEED NOT BE
PASSED UPON. — The issue of the applicability of Ordinance No. 7295 of
the City of Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery; and for other purposes which finds support in Article 22
of the Vienna Convention on Diplomatic Relations need not be passed upon.
There was no showing that the distance between the chancery and the
embassy gate is less than 500 feet. Even if it could be shown that such a
condition is satisfied, it does not follow that respondent Mayor could legally
act the way he did. The validity of his denial of the permit sought could still be
challenged. It could be argued that a case of unconstitutional application of
such ordinance to the exercise of the right of peaceable assembly presents
itself. As in this case there was no proof that the distance is less than 500
feet, the need to pass on that issue was obviated.

DECISION

FERNANDO, C.J : p

This Court, in this case of first impression, at least as to some aspects,

is called upon to delineate the boundaries of the protected area of the cognate
rights to free speech and peaceable assembly, 1 against an alleged intrusion
by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice
J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the
City of Manila to hold a peaceful march and rally on October 26, 1983 from
2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the
gates of the United States Embassy, hardly two blocks away. Once there, and
in an open space of public property, a short program would be held. 2 During
the course of the oral argument, 3 it was stated that after the delivery of two
brief speeches, a petition based on the resolution adopted on the last day by
the International Conference for General Disarmament, World Peace and the
Removal of All Foreign Military Bases held in Manila, would be presented to a
representative of the Embassy or any of its personnel who may be there so
that it may be delivered to the United States Ambassador. The march would
be attended by the local and foreign participants of such conference. There
was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps
would be taken by it "to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of
preliminary mandatory injunction on October 20, 1983 was due to the fact that
as of that date, petitioner had not been informed of any action taken on his
request on behalf of the organization to hold a rally. On October 25, 1983, the
answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such
permit was denied. Petitioner was unaware of such a fact as the denial was
sent by ordinary mail. The reason for refusing a permit was due to "police
intelligence reports which strongly militate against the advisability of issuing
such permit at this time and at the place applied for." 6 To be more specific,
reference was made to "persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to
attend." 7 Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for the
rally if it is to be held at the Rizal Coliseum or any other enclosed area where
the safety of the participants themselves and the general public may be
ensured." 8
The oral argument was heard on October 25, 1983, the very same day
the answer was filed. The Court then deliberated on the matter. That same
afternoon, a minute resolution was issued by the Court granting the
mandatory injunction prayed for on the ground that there was no showing of
the existence of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was unanimous, but
there was a dissent by Justice Aquino on the ground that the holding of a rally
in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This
resolution is without prejudice to a more extended opinion." 9 Hence this detailed
exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of
the cognate rights to free speech and peaceful assembly, arising from the
denial of a permit. The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of
grievances." 10 Free speech, like free press, may be identified with the liberty
to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel
suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt
proceedings 15 unless there be a "clear and present danger of a
substantive evil that [the State] has a right to prevent." 16 Freedom of
assembly connotes the right of the people to meet peaceably for consultation
and discussion of matters of public concern. 17 It is entitled to be accorded the
utmost deference and respect. It is not to be limited, much less denied,
except on a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state has a right
to prevent. 18 Even prior to the 1935 Constitution, Justice Malcolm had
occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. 19 To paraphrase the
opinion of Justice Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, 20 it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to assemble and to petition
the government for redress of grievances. All these rights, while not identical,
are inseparable. In every case, therefore, where there is a limitation placed on
the exercise of this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public
morals, public health, or any other legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression
and peaceable assembly better expressed than in this excerpt from an
opinion of Justice Frankfurter: "It must never be forgotten, however, that the
Bill of Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful means
for gaining access to the mind. It was in order to avert force and explosions
due to restrictions upon rational modes of communication that the guaranty of
free speech was given a generous scope. But utterance in a context of
violence can lose its significance as an appeal to reason and become part of
an instrument of force. Such utterance was not meant to be sheltered by
the Constitution." 22 What was rightfully stressed is the abandonment of
reason, the utterance, whether verbal or printed, being in a context of
violence. It must always be remembered that this right likewise provides for a
safety valve, allowing parties the opportunity to give vent to their views, even
if contrary to the prevailing climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be
the only alternative. Nor is this the sole reason for the expression of dissent. It
means more than just the right to be heard of the person who feels aggrieved
or who is dissatisfied with things as they are. Its value may lie in the fact that
there may be something worth hearing from the dissenter. That is to ensure a
true ferment of ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in the
name of protest, much less preach rebellion under the cloak of dissent.
The Constitution frowns on disorder or tumult attending a rally or assembly.
Resort to force is ruled out and outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed out in an early Philippine
case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather
to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement, and
the greater the grievance and the more intense the feeling, the less perfect,
as a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must be avoided. To
give free rein to one's destructive urges is to call for condemnation. It is to
make a mockery of the high estate occupied by intellectual liberty in our
scheme of values.
3. There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the place
where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in
Hague v. CIO: 25 "Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of a citizen of the United States
to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied." 26 The above excerpt was quoted with
approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit
in Municipality of Cavite v. Rojas, 28 a 1915 decision, where this Court
categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza "being a promenade
for public use," 29 which certainly is not the only purpose that it could serve.
To repeat, there can be no valid reason why a permit should not be granted
for the proposed march and rally starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to
the gates of the US Embassy, hardly two blocks away at the Roxas
Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter.
In holding that the then Mayor Fugoso of the City of Manila should grant a
permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the
case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case,
the statute of New Hampshire P. L. chap. 145, section 2, providing that
`no parade or procession upon any ground abutting thereon, shall be
permitted unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,' was construed by the
Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief
Justice Hughes affirming the judgment of the State Supreme Court, held that
`a statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local authorities is
not an unconstitutional abridgment of the rights of assembly or of freedom of
speech and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession, with
a view to conserving the public convenience and of affording an opportunity to
provide proper policing, and are not invested with arbitrary discretion to issue
or refuse license, . . .'" 30 Nor should the point made by Chief Justice Hughes
in a subsequent portion of the opinion be ignored. "Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society
maintaining public order without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority of a municipality to impose
regulations in order to assure the safety and convenience of the people in the
use of public highways has never been regarded as inconsistent with civil
liberties but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of cities is
the most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is desired to promote the
public convenience in the interest of all, it cannot be disregarded by the
attempted exercise of some civil right which in other circumstances would be
entitled to protection." 31
 5. There is a novel aspect to this case. If the rally were confined to
Luneta, no question, as noted, would have arisen. So, too, if the march would
end at another park. As previously mentioned though, there would be a short
program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing
over of a petition based on the resolution adopted at the closing session of the
Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention
on Diplomatic Relations adopted in 1961. It was concurred in by the then
Philippine Senate on May 3, 1965 and the instrument of ratification was
signed by the President on October 11, 1965, and was thereafter deposited
with the Secretary General of the United Nations on November 15. As of that
date then, it was binding on the Philippines. The second paragraph of its
Article 22 reads: "2. The receiving State is under a special duty to take
appropriate steps to protect the premises of the mission against any intrusion
or damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity." 32 The Constitution "adopts the generally accepted
principles of international law as part of the law of the land, . . ." 33 To the
extent that the Vienna Convention is a restatement of the generally accepted
principles of international law, it should be a part of the law of the land. 34 That
being the case, if there were a clear and present danger of any intrusion or
damage, or disturbance of the peace of the mission, or impairment of its
dignity, there would be a justification for the denial of the permit insofar as the
terminal point would be the Embassy. Moreover, respondent Mayor relied on
Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of
rallies or demonstrations within a radius of five hundred (500) feet from any
foreign mission or chancery; and for other purposes. Unless the ordinance is
nullified, or declared ultra vires, its invocation as a defense is understandable
but not decisive, in view of the primacy accorded the constitutional rights of
free speech and peaceable assembly. Even if shown then to be applicable,
that question still confronts this Court.
6. There is merit to the observation that except as to the novel aspects
of a litigation, the judgment must be confined within the limits of previous
decisions. The law declared on past occasions is, on the whole, a safe guide.
So it has been here. Hence, as noted, on the afternoon of the hearing,
October 25, 1983, this Court issued the minute resolution granting the
mandatory injunction allowing the proposed march and rally scheduled for the
next day. That conclusion was inevitable in the absence of a clear and
present danger of a substantive evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of free
speech and peaceable assembly. These rights are assured by our
Constitution and the Universal Declaration of Human Rights. 35 The
participants to such assembly, composed primarily of those in attendance at
the International Conference for General Disarmament, World Peace and the
Removal of All Foreign Military Bases would start from the Luneta, proceeding
through Roxas Boulevard to the gates of the United States Embassy located
at the same street. To repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom of access. Nor is their
use dependent on who is the applicant for the permit, whether an individual or
a group. If it were, then the freedom of access becomes discriminatory
access, giving rise to an equal protection question. The principle under
American doctrines was given utterance by Chief Justice Hughes in these
words: "The question, if the rights of free speech and peaceable assembly are
to be preserved, is not as to the auspices under which the meeting is held but
as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the
Constitution protects." 36 There could be danger to public peace and safety if
such a gathering were marked by turbulence. That would deprive it of its
peaceful character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would be granted.
It is not, however, unfettered discretion. While prudence requires that there be
a realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still the assumption
— especially so where the assembly is scheduled for a specific public place
— is that the permit must be for the assembly being held there. The exercise
of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in
some other place." 37
7. In fairness to respondent Mayor, he acted on the belief
that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino
(PMP) v. Bagatsing, 39 called for application. While the general rule is that a
permit should recognize the right of the applicants to hold their assembly at a
public place of their choice, another place may be designated by the licensing
authority if it be shown that there is a clear and present danger of a
substantive evil if no such change were made. In the Navarro and the
Pagkakaisa decisions, this Court was persuaded that the clear and present
danger test was satisfied. The present situation is quite different. Hence the
decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not that it should be
overlooked. There was in this case, however, the assurance of General
Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police
Force, that the police force is in a position to cope with such emergency
should it arise. That is to comply with its duty to extend protection to the
participants of such peaceable assembly. Also from him came the
commendable admission that there were at least five previous demonstrations
at the Bayview Hotel Area and Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It was made clear by petitioner,
through counsel, that no act offensive to the dignity of the United States
Mission in the Philippines would take place and that, as mentioned at the
outset of this opinion, "all the necessary steps would be taken by it `to ensure
a peaceful march and rally.'" 40 Assistant Solicitor General Montenegro
expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet
distance, but ever ready and alert to cope with any contingency. There
is no need to repeat what was pointed out by Chief Justice Hughes in Cox
that precisely, it is the duty of the city authorities to provide the proper police
protection to those exercising their right to peaceable assembly and freedom
of expression.
8. By way of a summary. The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public
place where and the time when it will take place. If it were a private place,
only the consent of the owner or the one entitled to its legal possession is
required. Such application should be filed well ahead in time to enable the
public official concerned to appraise whether there may be valid objections to
the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the
view that there is such an imminent and grave danger of a substantive evil,
the applicants must be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the earliest opportunity.
Thus if so minded, they can have recourse to the proper judicial authority.
Free speech and peaceable assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot
be too strongly stressed that on the judiciary, — even more so than on the
other departments — rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with what has been
so felicitiously termed by Justice Holmes "as the sovereign prerogative of
judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence
and primacy. Clearly then, to the extent that there may be inconsistencies
between this resolution and that of Navarro v. Villegas, that case is pro
tanto modified. So it was made clear in the original resolution of October
25, 1983.
9. Respondent Mayor posed the issue of the applicability of
Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of
 rallies or demonstrations within a radius of five hundred (500) feet from any
foreign mission or chancery; and for other purposes. It is to be admitted that it
finds support in the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance
between the chancery and the embassy gate is less than 500 feet. Even if it
could be shown that such a condition is satisfied, it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial of
the permit sought could still be challenged. It could be argued that a case of
unconstitutional application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was no proof that
the distance is less than 500 feet, the need to pass on that issue was
obviated. Should it come, then the qualification and observation of Justices
Makasiar and Plana certainly cannot be summarily brushed aside. The high
estate accorded the rights to free speech and peaceable assembly demands
nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the
denial or the modification of the permit sought and order the respondent
official to grant it. Nonetheless, as there was urgency in this case, the
proposed march and rally being scheduled for the next day after the hearing,
this Court, in the exercise of its conceded authority, granted the mandatory
injunction in the resolution of October 25, 1983. It may be noted that the
peaceful character of the peace march and rally on October 26 was not
marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national
government and the citizens, reason and moderation have prevailed. That is
as it should be.
WHEREFORE, the mandatory injunction prayed for is
granted. No costs.
(Reyes v. Bagatsing, G.R. No. L-65366, [November 9, 1983], 210 PHIL 457-
|||

482)

Pita vs. Court of Appeals [G.R. No. 80806, October 5, 1989]

[G.R. No. 80806. October 5, 1989.]

LEO PITA, doing business under the name and style of PINOY
PLAYBOY, petitioner, vs. THE COURT OF APPEALS, RAMON
BAGATSING, and NARCISO CABRERA, respondents.
 William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; OBSCENITY; TEST FOR DETERMINING

ITS EXISTENCE. — In Gonzalez v. Kalaw Katigbak, the Court, following
trends in the United States, adopted the test: "Whether to the average person,
applying contemporary standards, the dominant theme of the material taken
as a whole appeals to prurient interest." Kalaw-Katigbak represented a
marked departure from Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work rather than isolated passages,
which were central to Kottinger (although both cases are agreed that
"contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given unto law
enforcers.
2. ID.; ID.; LACK OF UNIFORMITY IN AMERICAN JURISPRUDENCE
AS TO WHAT CONSTITUTES "OBSCENITY". — It is significant that in the
United States, constitutional law on obscenity continues to journey from
development to development, which, states one authoritative commentator
(with ample sarcasm), has been as "unstable as it is unintelligible." The
lack of uniformity in American jurisprudence as to what constitutes "obscenity"
has been attributed to the reluctance of the courts to recognize the
constitutional dimension of the problem. Apparently, the courts have assumed
that "obscenity" is not included in the guaranty of free speech, an assumption
that, as we averred, has allowed a climate of opinions among magistrates
predicated upon arbitrary, if vague theories of what is acceptable to society.
And "[t]here is little likelihood," says Tribe, "that this development has reached
a state of rest, or that it will ever do so until the Court recognizes that obscene
speech is speech nonetheless, although it is subject — as in all speech — to
regulation in the interests of [society as a whole] — but not in the interest of a
uniform vision of how human sexuality should be regarded and portrayed."
3. ID.; ID.; QUESTION AS TO ITS TRUE PERCEPTION, FAR FROM
BEING A SETTLED MATTER. — In the case at bar, there is no challenge on
the right of the State, in the legitimate exercise of police power, to suppress
smut — provided it is smut. For obvious reasons, smut is not smut simply
because one insists it is smut. So is it equally evident that individual tastes
develop, adapt to wide-ranging influences, and keep in step with the rapid
advance of civilization. What shocked our forebears, say, five decades ago, is
not necessarily repulsive to the present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their works are considered
important literature today. Goya's La Maja desnuda was once banned from
public exhibition but now adorns the world's most prestigious museums. But
neither should we say that "obscenity" is a bare (no pun intended)
matter of opinion. As we said earlier, it is the divergent perceptions of men
and women that have probably compounded the problem rather than resolved
it. What the Court is impressing, plainly and simply, is that the question is not,
and has not been, an easy one to answer, as it is far from being a settled
matter. We share Tribe's disappointment over the discouraging trend in
American decisional law on obscenity as well as his pessimism on whether or
not an "acceptable" solution is in sight.
4. ID.; BILL OF RIGHTS; FREEDOM OF SPEECH; "IMMORAL" LORE
OR LITERATURE, WITHIN ITS AMBIT; STATE INTERFERENCE AND
ACTION DRAWN BY A "CLEAR AND PRESENT DANGER." — Undoubtedly,
"immoral" lore or literature comes within the ambit of free expression,
although not its protection. In free expression cases, this Court has
consistently been on the side of the exercise of the right, barring a "clear and
present danger" that would warrant State interference and action. But, so we
asserted in Reyes v. Bagatsing, "the burden to show the existence of grave
and imminent danger that would justify adverse action . . . lies on the . . .
authorit[ies]." "There must be objective and convincing, not subjective or
conjectural, proof of the existence of such clear and present danger." "It is
essential for the validity of . . . previous restraint or censorship that the . . .
authority does not rely solely on his own appraisal of what the public welfare,
peace or safety may require." "To justify such a limitation, there must be
proof of such weight and sufficiency to satisfy the clear and present danger
test."
5. ID.; ID.; ID.; BURDEN IS ON THE STATE TO DEMONSTRATE
EXISTENCE OF A DANGER TO JUSTIFY BAN OF THE SPEECH. — As so
strongly stressed in Bagatsing, a case involving the delivery of a political
speech, the presumption is that the speech may validly be said. The burden is
on the State to demonstrate the existence of a danger, a danger that must not
only be (1) clear but also, (2) present, to justify State action to stop the
speech. Meanwhile, the Government must allow it (the speech). It
has no choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present danger), it must come to terms
with, and be held accountable for, due process. The Court is not convinced
that the private respondents have shown the required proof to justify a ban
and to warrant confiscation of the literature for which mandatory injunction
had been sought below. First of all, they were not possessed of a
lawful court order: (1) finding the said materials to be pornography, and (2)
authorizing them to carry out a search and seizure, by way of a search
warrant.
6. ID.; ID.; ID.; SEIZURE OF PROPERTY IN DISREGARD OF DUE
PROCESS, NOT LICENSED ALTHOUGH SANCTIONED BY "POLICE
POWER." — The fact that the former respondent Mayor's act was sanctioned
by "police power" is no license to seize property in disregard of due process.
In Philippine Service Exporters, Inc. v. Drilon, We defined police power as
"state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare." Presidential Decrees Nos.
960 and 969 are, arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not exempt our law
enforcers, in carrying out the decree of the twin presidential issuances (Mr.
Marcos'), from the commandments of the Constitution, the right to due
process of law and the right against unreasonable searches and seizures,
specifically. Significantly, the Decrees themselves lay down procedures for
implementation.
7. ID.; ID.; SEARCHES AND SEIZURES BECOME UNREASONABLE
AND SUBJECT TO CHALLENGE IF NOT DONE THROUGH A JUDICIAL
WARRANT. — It is basic that searches and seizures may be done only
through a judicial warrant, otherwise, they become unreasonable and subject
to challenge. In Burgos v. Chief of Staff AFP, We countermanded the
orders of the Regional Trial Court authorizing the search of the
premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by
reason of a defective warrant. We have greater reason here to reprobate the
questioned raid, in the complete absence of a warrant, valid or invalid. The
fact that the instant case involves an obscenity rap makes it no different from
Burgos, a political case, because, and as we have indicated, speech is
speech, whether political or "obscene".
8. ID.; ID.; WARRANTLESS SEARCHES WARRANTED IF EXECUTED
INCIDENT TO A LAWFUL ARREST. — The Court is not ruling out
warrantless searches as provided in the Rules of Court (1964 rev.) (the Rules
then prevailing), but as the provision itself suggests, the search must have
been an incident to a lawful arrest, and the arrest must be on account of a
crime committed. Here, no party has been charged, nor are such charges
being readied against any party, under Article 201, as amended, of the
Revised Penal Code.
9. ID.; ID.; PROCUREMENT OF A SEARCH WARRANT; PROPER
PROCEDURE IN AN OBSCENITY RAP; DEFENSE NOT DEEMED
FORECLOSED. — 1. The authorities must apply for the issuance of a search
warrant from a judge, if in their opinion, an obscenity rap is in order; 2. The
authorities must convince the court that the materials sought to be seized are
 "obscene", and pose a clear and present danger of an evil substantive
enough to warrant State interference and action; 3. The judge must determine
whether or not the same are indeed "obscene:" the question is to be resolved
on a case-to-case basis and on His Honor's sound discretion. 4. If, in the
opinion of the court, probable cause exists, it may issue the search warrant
prayed for; 5. The proper suit is then brought in the court under Article
201 of the Revised Penal Code; 6. Any conviction is subject to appeal. The
appellate court may assess whether or not the properties seized are indeed
"obscene". These do not foreclose, however, defenses under the Constitution
or applicable statutes, or remedies against abuse of official power under the
Civil Code or the Revised Penal Code.

DECISION

SARMIENTO, J : p

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks

the review of the decision of the Court of Appeals, 1 rejecting his appeal from
the decision of the Regional Trial Court, dismissing his complaint for injunctive
relief. He invokes, in particular, the guaranty against unreasonable searches
and seizures of the Constitution, as well as its prohibition against
deprivation of property without due process of law. Cdpr

There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign
initiated by the Mayor of the City of Manila, Ramon D. Bagatsing,
elements of the Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the Metropolitan Police
Force of Manila, seized and confiscated from dealers, distributors,
newsstand owners and peddlers along Manila sidewalks, magazines,
publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in
public at the University belt along C.M. Recto Avenue, Manila, in the
presence of Mayor Bagatsing and several officers and
members of various student organizations.
Among the publications seized, and later burned, was "Pinoy
Playboy" magazines published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with
prayer for issuance of the writ of preliminary injunction against Mayor
Bagatsing and Narcisco Cabrera, as superintendent of Western Police
District of the City of Manila, seeking to enjoin and or restrain said
defendants and their agents from confiscating plaintiffs magazines or
from otherwise preventing the sale or circulation thereof claiming that the
magazine is a decent, artistic and educational magazine which is not per
se obscene, and that the publication is protected by the Constitutional
guarantees of freedom of speech and of the press.
By order dated December 8, 1983 the Court set the hearing on
the petition for preliminary injunction on December 14, 1983 and ordered
the defendants to show cause not later than December 13, 1983 why the
writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for
issuance of a temporary restraining order against indiscriminate seizure,
confiscation and burning of plaintiffs "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction in
view of Mayor Bagatsing's pronouncement to continue the Anti-Smut
Campaign. The Court granted the temporary restraining order on
December 14, 1983. LLphil
In his Answer and Opposition filed on December 27, 1983
defendant Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials on December 1 and 3, 1983, but
claimed that the said materials were voluntarily surrendered by the
vendors to the police authorities, and that the said confiscation and
seizure was (sic) undertaken pursuant to P.D. No. 960, as amended
by P.D. No. 969, which amended Article 201 of the Revised Penal Code.
In opposing the plaintiff's application for a writ of preliminary injunction,
defendant pointed out that in that anti-smut campaign conducted on
December 1 and 3, 1983, the materials confiscated belonged to the
magazine stand owners and peddlers who voluntarily surrendered their
reading materials, and that the plaintiff's establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera,
filed no answer.
On January 5, 1984, plaintiff filed his Memorandum in
support of the issuance of the writ of preliminary injunction, raising the
issue as to "whether or not the defendants. and or their agents can
without a court order confiscate or seize plaintiff's magazine before any
judicial finding is made on whether said magazine is obscene or not"
The restraining order issued on December 14, 1983 having
lapsed on January 3, 1984, the plaintiff filed an urgent motion for
issuance of another restraining order, which was opposed by defendant
on the ground that issuance of a second restraining order would violate
the Resolution of the Supreme Court dated January 11, 1983, providing
for the Interim Rules Relative to the Implementation of Batas Pambansa
Blg. 129, which provides that a temporary restraining order shall be
effective only for twenty days from date of its issuance.
 On January 9, 1984 defendant filed his Comment and or
Rejoinder Memorandum in support of his opposition to the issuance of a
writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the
case for hearing on January 16, 1984 "for the parties to adduce
evidence on the question of whether the publication 'Pinoy Playboy
Magazine' alleged (sic) seized, confiscated and or burned by the
defendants, are obscence per se or not"
On January 16, 1984, the Court issued an order granting plaintiff's
motion to be given three days "to file a reply to defendants' opposition
dated January 9, 1984, serving a copy thereof to the counsel for the
defendants, who may file a rejoinder within the same period from receipt,
after which the issue of Preliminary Injunction shall be resolved"
Plaintiff's supplemental Memorandum was filed on January 18
1984. Defendant filed his Comment on plaintiff's supplemental
Memorandum on January 20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order
appealed from denying the motion for a writ of preliminary injunction, and
dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among
other things, as follows:
We cannot quarrel with the basic postulate suggested by
appellant that seizure of allegedly obscene publications or materials
deserves close scrutiny because of the constitutional guarantee
protecting the right to express oneself in print (Sec. 9, Art. IV), and the
protection afforded by the constitution against unreasonable searches
and seizure (Sec. 3, Art. IV). It must be equally conceded, however, that
freedom of the press is not without restraint, as the state has the right to
protect society from pornographic literature that is offensive to public
morals, as indeed we have laws punishing the author, publishers and
sellers of obscene publications (Sec. 1, Art. 201, Revised Penal Code,
as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the
rule that the right against unreasonable searches and seizures
recognizes certain exceptions, as when there is consent to the search or
seizure, (People vs. Malesugui, 63 Phil. 22) or search is an incident to
an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil.
637) or is conducted in a vehicle or movable structure (See Papa vs.
Magno, 22 SCRA 857). 3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the police officers could without
 any court warrant or order seize and confiscate petitioner's magazines
on the basis simply of their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the trial court could dismiss the
case on its merits without any hearing thereon when what was submitted
to it for resolution was merely the application of petitioner for the
writ of preliminary injunction. 4
The Court states at the outset that it is not the first time that it is being
asked to pronounce what "obscene" means or what makes for an obscene or
pornographic literature. Early on, in People vs. Kottinger, 5 the Court laid down the
test, in determining the existence of obscenity, as follows: "whether the tendency of the matter charged
as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into
"Another test,"
whose hands a publication or other article charged as being obscene may fall." 6
so Kottinger further declares, "is that which shocks the ordinary and common
sense of men as an indecency." 7 Kottinger hastened to say, however, that
"[w]hether a picture is obscene or indecent must depend upon the
circumstances of the case," 8 and that ultimately, the question is to be decided
by the "judgment of the aggregate sense of the community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition,
succeeded merely in generalizing a problem that has grown increasingly
complex over the years. Precisely, the question is: When does a
publication have a corrupting tendency, or when can it be said to be offensive
to human sensibilities? And obviously, it is to beg the question to say that a
piece of literature has a corrupting influence because it is obscene, and vice-
versa.
Apparently, Kottinger was aware of its own uncertainty because in the
same breath, it would leave the final say to a hypothetical "community
standard" — whatever that is — and that the question must supposedly be
judged from case to case.
About three decades later, this Court promulgated People v. Go
Pin, 10 a prosecution under Article 201 of the Revised Penal Code. Go
Pin was also even hazier:
. . . We agree with counsel for appellant in part. If such pictures,
sculptures and paintings are shown in art exhibits and art galleries
for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However,
the pictures here in question were used not exactly for art's sake
but rather for commercial purposes. In other words, the supposed
artistic qualities of said pictures were being commercialized so that
the cause of art was of secondary or minor importance. Gain and
profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the
 persons who went to see those pictures and paid entrance fees for
the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste, and
lust, and for love for excitement, including the youth who
because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures. 11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine
lines have neither been drawn nor divided. It is easier said than done to say,
indeed, that if "the pictures here in question were used not exactly for art's
sake but rather for commercial purposes," 12 the pictures are not entitled to
any constitutional protection.
It was People v. Padan y Alova, 13 however, that introduced to
Philippine jurisprudence the "redeeming" element that should accompany the
work, to save it from a valid prosecution. We quote:
. . . We have had occasion to consider offenses like the
exhibition of still or moving pictures of women in the nude, which we
have condemned for obscenity and as offensive to morals. In those
cases, one might yet claim that there was involved the element of art;
that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body
exhibited in sheer nakedness, as models in tableaux vivants. But an
actual exhibition of the sexual act, preceded by acts of lasciviousness,
can have no redeeming feature. In it, there is no room for art. One can
see nothing in it but clear and unmitigated obscenity, indecency, and an
offense to public morals, inspiring and causing as it does, nothing but
lust and lewdness, and exerting a corrupting influence specially on the
youth of the land. . . . 14
Padan y Alova, like Go Pin, however, raised more questions than
answers. For one thing, if the exhibition was attended by "artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy
and improve their artistic tastes," 15 could the same legitimately lay claim to
"art"? For another, suppose that the exhibition was so presented that
"connoisseurs of [art], and painters and sculptors might find inspiration," 16 in
it, would it cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial
arbitrament, which has permitted an ad lib of ideas and "two-cents worths"
among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak, 17 the Court,
following trends in the United States, adopted the test: "Whether to the
average person, applying contemporary standards, the dominant theme of the
material taken as a whole appeals to prurient interest." 18 Kalaw-
Katigbak represented a marked departure from Kottinger in the sense that it
measured obscenity in terms of the "dominant theme" of the work rather than
isolated passages, which were central to Kottinger (although both cases are
agreed that "contemporary community standards" are the final arbiters of what
is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given unto law
enforcers. cdphil

It is significant that in the United States, constitutional law on obscenity

continues to journey from development to development, which, states one
authoritative commentator (with ample sarcasm), has been as "unstable as it
is unintelligible." 19
Memoirs v. Massachusettes, 20 a 1966 decision, which characterized
obscenity as one "utterly without any redeeming social value," 21 marked yet
another development.
The latest word, however, is Miller v. California, 22 which expressly
abandoned Massachusettes, and established "basic guidelines," 23 to wit: "(a)
whether 'the average person, applying contemporary standards' would find
the work, taken as a whole, appeals to the prurient interest . . .; (b) whether
the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value." 24
(A year later, the American Supreme Court decided Hamling v. United
States, 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another
reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion
picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen,
although the film highlighted contemporary American sexuality.).
The lack of uniformity in American jurisprudence as to what constitutes
"obscenity" has been attributed to the reluctance of the courts to recognize
the constitutional dimension of the problem. 27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an
assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable
to society. And "[t]here is little likelihood," says Tribe, "that this development
has reached a state of rest, or that it will ever do so until the Court recognizes
that obscene speech is speech nonetheless, although it is subject — as in all
speech — to regulation in the interests of [society as a whole] — but not in the
interest of a uniform vision of how human sexuality should be regarded and
portrayed." 28
 In the case at bar, there is no challenge on the right of the State, in the
legitimate exercise of police power, to suppress smut — provided it is smut.
For obvious reasons, smut is not smut simply because one insists it is smut.
So is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What
shocked our forebears, say, five decades ago, is not necessarily repulsive to
the present generation. James Joyce and D.H. Lawrence were censored in
the thirties yet their works are considered important literature
today. 29 Goya's La Maja desnuda was once banned from public exhibition but
now adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended)
matter of opinion. As we said earlier, it is the divergent perceptions of men
and women that have probably compounded the problem rather than resolved
it.
What the Court is impressing, plainly and simply, is that the question is
not, and has not been, an easy one to answer, as it is far from being a settled
matter. We share Tribe's disappointment over the discouraging trend in
American decisional law on obscenity as well as his pessimism on whether or
not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic
than rushing to a "perfect" definition of "obscenity", if that is possible, as
evolving standards for proper police conduct faced with the problem, which,
after all, is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free
expression, although not its protection. In free expression cases,
this Court has consistently been on the side of the exercise of the right,
barring a "clear and present danger" that would warrant State interference
and action. 30 But, so we asserted in Reyes v. Bagatsing, 31 "the burden to
show the existence of grave and imminent danger that would justify adverse
action . . . lies on the . . . authorit[ies]." 32
"There must be objective and convincing, not subjective or conjectural,
proof of the existence of such clear and present danger." 33 "It is essential for
the validity of . . . previous restraint or censorship that the . . . authority does
not rely solely on his own appraisal of what the public welfare, peace or
safety may require." 34
"To justify such a limitation, there must be proof of such weight and
sufficiency to satisfy the clear and present danger test." 35
The above disposition must not, however, be taken as a neat effort to
arrive at a solution — so only we may arrive at one but rather as a serious
attempt to put the question in its proper perspective, that is, as a genuine
constitutional issue.
It is also significant that in his petition, the petitioner asserts
constitutional issues, mainly, due process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the
delivery of a political speech, the presumption is that the speech may validly
be said. The burden is on the State to demonstrate the existence of a danger,
a danger that must not only be (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the Government must allow it (the
speech). It has no choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present danger), it must come to terms
with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown
the required proof to justify a ban and to warrant confiscation of the literature
for which mandatory injunction had been sought below. First of all, they were
not possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by
way of a search warrant.
The Court of Appeals has no "quarrel that . . . freedom of the press is
not without restraint, as the state has the right to protect society from
pornographic literature that is offensive to public morals." 36 Neither do we.
But it brings us back to square one: were the "literature" so confiscated
"pornographic"? That "we have laws punishing the author, publisher and
sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question,
again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by
"police power" is no license to seize property in disregard of due process.
In Philippine Service Exporters, Inc. v. Drilon, 38 We defined police power as
"state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare." 39 Presidential
Decrees Nos. 960 and 969 are, arguably, police power measures, but they
are not, by themselves, authorities for high-handed acts. They do not exempt
our law enforcers, in carrying out the decree of the twin presidential issuances
(Mr. Marcos'), from the commandments of the Constitution, the right to due
process of law and the right against unreasonable searches and seizures,
specifically. Significantly, the Decrees themselves lay down procedures for
implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. — The
disposition of the literature, films, prints, engravings, sculptures,
paintings, or other materials involved in the violation referred to in
 Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
(a) Upon conviction of the offender, to be forfeited in
favor of the Government to be destroyed.
(b) Where the criminal case against any violator of this
decree results in an acquittal, the obscene/immoral literature,
films, prints, engravings, sculptures, paintings or other materials
and articles involved in the violation referred to in Section 1
(referring to Art. 201) hereof shall nevertheless be forfeited in
favor of the government to be destroyed, after forfeiture
proceedings conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the
Chief of Constabulary may, within fifteen (15) days after his
receipt of a copy of the decision, appeal the matter to the
Secretary of National Defense for review. The decision of the
Secretary of National Defense shall be final and unappealable.
(Sec. 2, PD No. 960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. — Additional penalties shall be
imposed as follows:
1. In case the offender is a government official or employee
who allows the violations of Section 1 hereof, the penalty as
provided herein shall be imposed in the maximum period and, in
addition, the accessory penalties provided for in the Revised
Penal Code, as amended, shall likewise be imposed. 40
Under the Constitution, 41 on the other hand:
SEC. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized. 42
It is basic that searches and seizures may be done only through a
judicial warrant, otherwise, they become unreasonable and subject to
challenge. In Burgos v. Chief of Staff AFP, 43 We countermanded the
orders of the Regional Trial Court authorizing the search of the
premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by
reason of a defective warrant. We have greater reason here to reprobate the
questioned raid, in the complete absence of a warrant, valid or invalid. The
fact that the instant case involves an obscenity rap makes it no different
from Burgos, a political case, because, and as we have indicated, speech is
speech, whether political or "obscene"
The Court is not ruling out warrantless searches, as the
Rules of Court (1964 rev.) (the Rules then prevailing), provide:
SEC. 12. Search without warrant of person arrested. — A person
charged with an offense may be searched for dangerous weapons or
anything which may be used as proof of the commission of the
offense. 44
but as the provision itself suggests, the search must have been an incident to
a lawful arrest, and the arrest must be on account of a crime committed.
Here, no party has been charged, nor are such charges being readied against
any party, under Article 201, as amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor
legal provision which would free the accused of all criminal responsibility
because there had been no warrant," 45 and that "violation of penal law [must]
be punished." 46 For starters, there is no "accused" here to speak of, who
ought to be "punished". Second, to say that the respondent Mayor could have
validly ordered the raid (as a result of an anti-smut campaign) without a lawful
search warrant because, in his opinion, "violation of penal laws" has been
committed, is to make the respondent Mayor judge, jury, and executioner
rolled into one. And precisely, this is the very complaint of the petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from
a judge, if in their opinion, an obscenity rap is in order;
2. The authorities must convince the court that the materials sought to
be seized are "obscene", and pose a clear and present danger of an evil
substantive enough to warrant State interference and action;
3. The judge must determine whether or not the same are indeed
"obscene:" the question is to be resolved on a case-to-case basis and on His
Honor's sound discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the
search warrant prayed for;
5. The proper suit is then brought in the court under Article 201 of the
Revised Penal Code;
6. Any conviction is subject to appeal. The appellate court may assess
whether or not the properties seized are indeed "obscene"
 These do not foreclose, however, defenses under the Constitution or
applicable statutes, or remedies against abuse of official power under the Civil
Code 47 or the Revised Penal code. 48
WHEREFORE, the petition is GRANTED. The decision of the
respondent court is REVERSED and SET ASIDE. It appearing, however, that
the magazines subject of the search and seizure have been destroyed,
the Court declines to grant affirmative relief. To that extent, the case is moot
and academic. cdll

SO ORDERED.
(Pita v. Court of Appeals, G.R. No. 80806, [October 5, 1989], 258-A PHIL 134-
|||

153)
Social Weather Stations, Inc. vs. COMELEC [G.R. No. 147571, May 5, 2001]

[G.R. No. 147571. May 5, 2001.]

SOCIAL WEATHER STATIONS, INCORPORATED and

KAMAHALAN PUBLISHING CORPORATION, doing business
as MANILA
STANDARD, petitioners,vs.COMMISSION ON ELECTIONS, resp
ondent.

DECISION

MENDOZA, J : p

Petitioner, Social Weather Stations, Inc. (SWS),is a private non-stock,

non-profit social research institution conducting surveys in various fields,
including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan Publishing Corporation
publishes the Manila Standard,a newspaper of general circulation, which
features newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin
the Commission on Elections from enforcing §5.4 of R.A. No. 9006 (Fair
Election Act), which provides:
Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and
perceptions of the voters as regards a candidate's popularity,
qualifications, platforms or a matter of public discussion in relation to the
election, including voters' preference for candidates or publicly
discussed issues during the campaign period (hereafter referred to as
"Survey").
To implement §5.4, Resolution 3636, §24(h), dated March 1, 2001, of
the COMELEC enjoins —
Surveys affecting national candidates shall not be published
fifteen (15) days before an election and surveys affecting local
candidates shall not be published seven (7) days before an election.
Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and local levels and
release to the media the results of such survey as well as publish them
directly. Petitioner Kamahalan Publishing Corporation, on the other hand,
states that it intends to publish election survey results up to the last day of
the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election
survey results constitutes a prior restraint on the exercise of freedom of
speech without any clear and present danger to justify such restraint. They
claim that SWS and other pollsters conducted and published the results of
surveys prior to the 1992, 1995, and 1998 elections up to as close as two
days before the election day without causing confusion among the voters and
that there is neither empirical nor historical evidence to support the conclusion
that there is an immediate and inevitable danger to the voting process posed
by election surveys. They point out that no similar restriction is
imposed on politicians from explaining their opinion or on newspapers or
broadcast media from writing and publishing articles concerning political
issues up to the day of the election. Consequently, they contend that there
is no reason for ordinary voters to be denied access to the results of election
surveys which are relatively objective. ETHaDC

Respondent Commission on Elections justifies the restrictions in §5.4

of R.A. No. 9006 as necessary to prevent the manipulation and corruption of
the electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election
survey results during the period proscribed by law bears a rational connection
to the objective of the law, i.e.,the prevention of the debasement of the
electoral process resulting from manipulated surveys, bandwagon effect, and
absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of expression is minimal, the
restriction being limited both in duration, i.e.,the last 15 days before the
national election and the last 7 days before a local election, and in scope as it
does not prohibit election survey results but only require timeliness.
Respondent claims that in National Press Club v. COMELEC, 1 a total
ban on political advertisements, with candidates being merely allocated
broadcast time during the so-called COMELEC space or COMELEC hour,
was upheld by this Court. In contrast, according to respondent, it states that
the prohibition in §5.4 of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No.
9006 constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, §5.4 lays a prior restraint on freedom of speech,
expression, and the press by prohibiting the publication of election survey
results affecting candidates within the prescribed periods of fifteen (15) days
immediately preceding a national election and seven (7) days before a local
election. Because of the preferred status of the constitutional rights of speech,
expression, and the press, such a measure is vitiated by a weighty
presumption of invalidity. 2 Indeed, "any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its
constitutional validity. ...The Government 'thus carries a heavy burden of
showing justification for the enforcement of such restraint.'" 3 There is thus a
reversal of the normal presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the Constitution,
which gives the COMELEC supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of
communication, no presumption of invalidity attaches to a measure like
§5.4. For as we have pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC under Art. IX-C, §4 is
limited to ensuring "equal opportunity, time, space, and the right to reply" as
well as uniform and reasonable rates of charges for the use of such media
facilities for "public information campaigns and forums among
candidates." 4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be
seen to be that no presumption of invalidity arises in respect of exercises
of supervisory or regulatory authority on the part of the Comelec for the
purpose of securing equal opportunity among candidates for political
office, although such supervision or regulation may result
in some limitation of the rights of free speech and free press. 5
MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test
of clear and present danger for determining the validity of §5.4. Indeed, as
has been pointed out in Osmeña v. COMELEC, 6 this test was originally
formulated for the criminal law and only later appropriated for free speech
cases. Hence, while it may be useful for determining the validity of laws
dealing with inciting to sedition or incendiary speech, it may not be adequate
for such regulations as the one in question. For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing
free speech, which is not the case of §5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of
balancing by "weighing and balancing the circumstances to determine
whether public interest [in free, orderly, honest, peaceful and
credible elections] is served by the regulation of the free enjoyment of the
rights" (page 7).After canvassing the reasons for the prohibition, i.e.,to prevent
last-minute pressure on voters, the creation of bandwagon effect to favor
candidates, misinformation, the "junking" of weak and "losing" candidates by
their parties, and the form of election cheating called "dagdag-bawas" and
invoking the State's power to supervise media of information during the
election period (pages 11-16),the dissenting opinion simply concludes: ACTEHI

Viewed in the light of the legitimate and significant objectives of

Section 5.4, it may be seen that its limiting impact on the rights of free
speech and of the press is not unduly repressive or unreasonable.
Indeed, it is a mere restriction, not an absolute prohibition, on the
publication of election surveys. It is limited in duration; it applies only
during the period when the voters are presumably contemplating whom
they should elect and when they are most susceptible to such
unwarranted persuasion. These surveys may be published thereafter.
(Pages 17-18)
The dissent does not, however, show why, on balance, these
considerations should outweigh the value of freedom of expression. Instead,
reliance is placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C,
§4 is to "ensure equal opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public information campaigns
and forums among candidates." Hence the validity of the ban on media
advertising. It is noteworthy that R.A. No. 9006, §14 has lifted the ban and
now allows candidates to advertise their candidacies in print and broadcast
media. Indeed, to sustain the ban on the publication of survey results would
sanction the censorship of all speaking by candidates in an election on the
ground that the usual bombasts and hyperbolic claims made during the
campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This
form of ad hoc balancing predictably results in sustaining the challenged
legislation and leaves freedom of speech, expression, and the press with little
protection. For anyone who can bring a plausible justification forward can
easily show a rational connection between the statute and a legitimate
governmental purpose. In contrast, the balancing of interest undertaken by
then Justice Castro in Gonzales v. COMELEC, 7 from which the dissent in
this case takes its cue, was a strong one resulting in his conclusion that §50-
B of R.A. No. 4880, which limited the period of election campaign and
partisan political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that
there are other countries — 78, according to the Solicitor General, while the
dissent cites 28 — which similarly impose restrictions on the publication of
election surveys. At best this survey is inconclusive. It is noteworthy that in the
United States no restriction on the publication of election survey results exists.
It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results,
even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and
Ukraine, some of which are no older nor more mature than the Philippines in
political development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional
validity of §5.4? The United States Supreme Court, through Chief Justice
Warren, held in United States v. O'Brien:
[A] government regulation is sufficiently justified [1] if it is within
the constitutional power of the Government; [2] if it furthers an important
or substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that
interest. 8
This is so far the most influential test for distinguishing content-based
from content-neutral regulations and is said to have "become canonical in the
review of such laws." 9 It is noteworthy that the O'Brien test has been applied
by this Court in at least two cases. 10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental interest is
"not unrelated to the suppression of free expression." Moreover, even if the
purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is
greater than is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as
applied to §5.4.
 First.Sec. 5.4 fails to meet criterion [3] of the O'Brien test because the
causal connection of expression to the asserted governmental interest makes
such interest "not unrelated to the suppression of free expression." By
prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, §5.4
actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion
makers. In effect, §5.4 shows a bias for a particular subject matter, if not
viewpoint, by preferring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that "the
government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content." 11 The inhibition of speech should be
upheld only if the expression falls within one of the few unprotected categories
dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or 'fighting' words —
those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. [S]uch utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
Nor is there justification for the prior restraint which §5.4
lays on protected speech. In Near v. Minnesota, 13 it was held:
[The] protection even as to previous restraint is not absolutely
unlimited. But the limitation has been recognized only in exceptional
cases. ...No one would question but that a government might prevent
actual obstruction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced against
obscene publications. The security of the community life may be
protected against incitements to acts of violence and the overthrow by
force of orderly government .... ACcaET

Thus, contrary to the claim of the Solicitor General, the prohibition

imposed by §5.4 cannot be justified on the ground that it is only for a limited
period and is only incidental. The prohibition may be for a limited time, but the
curtailment of the right of expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of speech and is not made less
so because it is only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a local election.
 This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which
this Court found to be valid in National Press
Club v. COMELEC 14 and Osmeña v. COMELEC. 15 For the ban imposed
by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional
provision, 16 but it also provided an alternative so that, as this Court pointed
out in Osmeña,there was actually no ban but only a substitution of media
advertisements by the COMELEC space and COMELEC hour.
Second.Even if the governmental interest sought to be promoted is
unrelated to the suppression of speech and the resulting restriction of free
expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of
the O'Brien test, namely, that the restriction be not greater than is necessary
to further the governmental interest. As already stated, §5.4 aims at the
prevention of last-minute pressure on voters, the creation of bandwagon
effect, "junking" of weak or "losing" candidates, and resort to the form of
election cheating called "dagdag-bawas." Praiseworthy as these aims of the
regulation might be, they cannot be attained at the sacrifice of the
fundamental right of expression, when such aim can be more narrowly
pursued by punishing unlawful acts,rather than speech because of
apprehension that such speech creates the danger of such evils. Thus, under
the Administrative Code of 1987, 17 the COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop
any unlawful,libelous, misleading or false election propaganda,after due
notice and hearing.
This is surely a less restrictive means than the prohibition contained in
§5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey
results calculated to mislead voters. Candidates can have their own surveys
conducted. No right of reply can be invoked by others. No principle of equality
is involved. It is a free market to which each candidate brings his ideas. As for
the purpose of the law to prevent bandwagon effects, it is doubtful whether
the Government can deal with this natural-enough tendency of some voters.
Some voters want to be identified with the "winners." Some are susceptible to
the herd mentality. Can these be legitimately prohibited by suppressing the
publication of survey results which are a form of expression? It has been held
that "[mere] legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities,
but be insufficient to justify such as diminishes the exercise of rights so vital to
the maintenance of democratic institutions." 18
To summarize then, we hold that §5.4 is invalid because (1) it imposes
a prior restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression is
only for a limited period, and (3) the governmental interest sought to be
 promoted can be achieved by means other than the suppression of freedom
of expression.
On the other hand, the COMELEC contends that under Art. IX-A, §7 of
the Constitution, its decisions, orders, or resolutions may be reviewed by this
Court only by certiorari. The flaws in this argument is that it assumes that
its Resolution 3636, dated March 1, 2001 is a "decision, order, or resolution"
within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintains
that Resolution 3636 was "rendered" by the Commission. However, the
Resolution does not purport to adjudicate the right of any party. It is not an
exercise by the COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for
the COMELEC's claim that this petition for prohibition is inappropriate.
Prohibition has been found appropriate for testing the constitutionality of
various election laws, rules and regulations. 19
WHEREFORE, the petition for prohibition is GRANTED and §5.4
of R.A. No. 9006 and §24(h) of COMELEC Resolution 3636, dated March
1, 2001, are declared unconstitutional.
(Social Weather Stations, Inc. v. Commission on Elections, G.R. No. 147571, [May 5,
|||

2001], 409 PHIL 571-617)

Assembly and Petition

Primicias vs. Fugoso [G.R. No. L-1800, January 27, 1948]

[G.R. No. L-1800. January 27, 1948.]

CIPRIANO P. PRIMICIAS, General Campaign Manager of

Coalesced Minority Parties, petitioner, vs. VALERIANO
E. FUGOSO, Mayor of City of Manila, respondent.

Ramon Diokno for petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio
Villamor for respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT TO FREEDOM OF SPEECH AND

TO PEACEFULLY ASSEMBLE AND PETITION GOVERNMENT FOR
REDRESS OF GRIEVANCES, NOT ABSOLUTE; REGULATION UNDER
POLICE POWER; POLICE POWER, BY WHOM EXERCISED. — The right to
freedom of speech, and to peacefully assemble and petition the government
for redress of grievances, are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic countries. But
it is a settled principle growing out of the nature of well-ordered civil
societies that the exercise of those rights is not absolute for it may be
so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community
or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power," which is the
power to prescribe regulations, to promote the health, morals, peace,
education, good order or safety, and general welfare of the people. This
sovereign police power is exercised by the government through its legislative
branch by the enactment of laws regulating those and other constitutional and
civil rights, and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called municipal
and city councils to enact ordinances for the purpose.
2. ID.; ID.; ID.; ID.; SCOPE OF POLICE POWER DELEGATED TO
MUNICIPAL BOARD OF MANILA. — The Philippine Legislature has
delegated the exercise of the police power to the Municipal Board of the City
of Manila, which according to section 2439 of the Administrative Code is the
legislative body of the City. Section 2444 of the same Code grants the
Municipal Board, among others, the following legislative powers, to wit: "(p) to
provide for the prohibition and suppression of riots, affrays, disturbances, and
disorderly assemblies, (u) to regulate the use of streets, avenues, . . . parks,
cemeteries and other public places" and "for the abatement of nuisances in
the same," and "(ee) to enact all ordinances it may deem necessary and
proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."
3. ID.; ID.; ID.; ID.; ID.; MEETING AND ASSEMBLY IN STREET OR
PUBLIC PLACE IN MANILA, REGULATION OF. — As there is no express
and separate provision in the Revised Ordinance of the City of Manila
regulating the holding of public meeting or assembly at any streets or public
places, the provision of section 1119 of said Ordinance to the effect, among
others, "that the holding of any parade or procession in any streets or public
places is prohibited unless a permit therefor is first secured from the Mayor,
who shall, on every such occasion, determine or specify the streets or public
places for the formation, route, and dismissal of such parade or procession,"
may be applied by analogy to meeting and assembly in any street or public
places.
 4. ID.; ID.; ID.; ID.; ID.; ID.; POWER OF MAYOR TO GRANT PERMIT
FOR HOLDING ASSEMBLY OR MEETING, PARADE OR PROCESSION,
SCOPE OF. — Section 1119 of the Revised Ordinance of the City of
Manila is susceptible of two constructions: one is that the Mayor of the
City of Manila is vested with unregulated discretion to grant or refuse to grant
permit for the holding of a lawful assembly or meeting, parade, or procession
in the streets and other public places of the City of Manila; and the other is
that the applicant has the right to a permit which shall be granted by the
Mayor, subject only to the latter's reasonable discretion to determine or
specify the streets or public places to be used for the purpose, with a view to
prevent confusion by overlapping, to secure convenient use of the streets and
public places by others, and to provide adequate and proper policing to
minimize the risk of disorder. This court has adopted the second construction,
namely, that said provision does not confer upon the Mayor the power to
refuse to grant the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held. The ordinance cannot be
construed as conferring upon the Mayor power to grant or refuse to grant the
permit, which would be tantamount to authorizing him to prohibit the use of
the streets and other public places for holding of meetings, parades or
processions, because such a construction would make the ordinance invalid
and void or violative of the constitutional limitations. As the Municipal Board is
empowered only to regulate the use of streets, parks and other public places,
and the word "regulate," as used in section 2444 of the Revised
Administrative Code, means and includes the power to control, to govern and
to restrain, but can not be construed as synonymous with "suppress" or
"prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the Municipal Board
cannot grant the Mayor a power which it does not have. Besides, as the
powers and duties of the Mayor as the Chief Executive of the City are
executive, and one of them is "to comply with and enforce and give the
necessary orders for the faithful performance and execution of the laws and
ordinances (section 2434 [b] of the Revised Administrative Code), the
legislative police power of the Municipal Board to enact ordinances regulating
reasonably the exercise of the fundamental personal right of the citizens in the
streets and other public places, cannot be delegated to the Mayor or any
other officer by conferring upon him unregulated discretion or without laying
down rules to guide and control his action by which its impartial execution can
be secured or partiality and oppression prevented.
5. ID.; ID.; ID.; ID.; ID.; ID.; ID.; SECTION 2434 OF ADMINISTRATIVE
CODE GRANTING MAYOR POWER TO GRANT OR REFUSE MUNICIPAL
LICENSES OR PERMITS OF ALL CLASSES, NOT APPLICABLE. — Section
2434 of the Administrative Code, a part of the Charter of the City of Manila,
which provides that the Mayor shall have the power to grant and refuse
municipal licenses or permits of all classes, cannot be cited as an authority for
the Mayor to deny the application of the petitioner, for the simple reason that
said general power is predicated upon the ordinances enacted by the
Municipal Board requiring licenses or permits to be issued by the Mayor, such
as those found in Chapters 40 to 87 of the Revised Ordinances of the City of
Manila. It is not a specific or substantive power independent from the
corresponding municipal ordinances which the Mayor, as Chief Executive of
the City, is required to enforce under the same section 2434. Moreover "one
of the settled maxims in constitutional law is that the power conferred upon
the Legislature to make laws cannot be delegated by that department to any
other body or authority," except certain powers of local government, specially
of police regulations which are conferred upon the legislative body of a
municipal corporation. Taking this into consideration, and that the police
power to regulate the use of streets and other public places has been
delegated or rather conferred by the Legislature upon the Municipal Board of
the City (section 2444 [u] of the Administrative Code), it is to be presumed
that the Legislature has not, in the same breath, conferred upon the Mayor in
section 2434 (m) the same power, specially in view of the fact that its exercise
may be in conflict with the exercise of the same power by the Municipal
Board.
6. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; NULLITY OF UNLIMITED POWER
OF MAYOR TO GRANT OR REFUSE PERMIT FOR USE OF STREET AND
PUBLIC PLACE FOR PROCESSIONS, PARADES OR MEETINGS. —
Assuming arguendo that the Legislature has the power to confer, and in fact
has conferred, upon the Mayor the power to grant or refuse licenses and
permits of all classes, independent from ordinances enacted by the Municipal
Board on the matter, and the provisions of section 2444 (u) of the same Code
and of section 1119 of the Revised Ordinances to the contrary
notwithstanding, such grant of unregulated and unlimited power to grant or
refuse a permit for the use of streets and other public places for processions,
parades, or meetings, would be null and void, for the same reasons stated in
the decisions in the cases cited in the opinion, specially in Willis Cox vs. State
of New Hampshire (312 U. S., 569), wherein the question involved was also
the validity of a similar statute of New Hampshire. Because the same
constitutional limitations applicable to ordinances apply to statutes, and the
same objections to a municipal ordinance which grants unrestrained
discretion upon a city officer are applicable to a law or statute that confers
unlimited power to any officer either of the municipal or state governments.
Under the democratic system of government in the Philippines, no such
unlimited power may be validly granted to any officer of the government,
except perhaps in cases of national emergency. As stated in State ex
 rel. Garrabad vs. Dering (84 Wis., 585; 54 N. W., 1104) "The discretion with
which the council is vested is a legal discretion to be exercised within the
limits of the law, and not a discretion to transcend it or to confer upon any city
officer an arbitrary authority making in its exercise a petty tyrant."
7. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — The reason
alleged by the respondent in his defense for refusing the permit is, "that there
is a reasonable ground to believe, basing upon previous utterances and upon
the fact that passions, specially on the part of the losing groups, remain bitter
and high, that similar speeches will be delivered tending to undermine the
faith and confidence of the people in their government, and in the duly
constituted authorities, which might threaten breaches of the peace and a
disruption of public order." As the request of the petition was for a permit "to
hold a peaceful public meeting," and there is no denial of that fact or any
doubt that it was to be a lawful assemblage, the reason given for the refusal of
the permit can not be given any consideration. It does not make comfort and
convenience in the use of streets or parks the standard of official action. It
enables the Mayor to refuse the permit on his mere opinion that such refusal
will prevent riots, disturbances or disorderly assemblage. It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs, for the prohibition of all speaking will
undoubtedly prevent such eventualities. (Hague vs. Committee on Industrial
Organization, 307 U. S., 496; 83 Law. ed., 1423.)

DECISION

FERIA, J :p

This is an action of mandamus instituted by the petitioner

Cipriano Primicias, a campaign manager of the Coalesced Minority
Parties against Valeriano Fugoso, as Mayor of the City of Manila, to
compel the latter to issue a permit for the holding of a public meeting at
Plaza Miranda on Sunday afternoon, November 16, 1947, for the
purpose of petitioning the government for redress to grievances on the
ground that the respondent refused to grant such permit. Due to the
urgency of the case, this Court, after mature deliberation, issued a writ of
mandamus, as prayed for in the petition on November 15, 1947, without
prejudice to writing later an extended and reasoned decision.
The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle growing
out of the nature of well-ordered civil societies that the exercise of those
rights is not absolute for it may be so regulated that it shall not be
injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate
the exercise of such and other constitutional rights is termed the
sovereign "police power," which is the power to prescribe regulations, to
promote the health, morals, peace, education, good order or safety, and
general welfare of the people. This sovereign police power is exercised
by the government through its legislative branch by the enactment of
laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and
cities by authorizing their legislative bodies called municipal and city
councils to enact ordinances for the purpose.
The Philippine Legislature has delegated the exercise of the police
power to the Municipal Board of the City of Manila, which according to
section 2439 of the Administrative Code is the legislative body of the
City. Section 2444 of the same Code grants the Municipal Board, among
others, the following legislative powers, to wit: "(p) to provide for the
prohibition and suppression of riots, affrays, disturbances and disorderly
assemblies, (u) to regulate the use of streets, avenues, . . . parks,
cemeteries and other public places" and "for the abatement of nuisances
in the same," and "(ee) to enact all ordinances it may deem necessary
and proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and
general welfare of the city and its inhabitants."
Under the above delegated power, the Municipal Board of the City
of Manila, enacted sections 844 and 1119. Section 844 of the Revised
Ordinances of 1927 prohibits as an offense against public peace, and
section 1262 of the same Revised Ordinance penalizes as a
misdemeanor, "any act, in any public place, meeting, or procession,
tending to disturb the peace or excite a riot; or collect with other persons
in a body or crowd for any unlawful purpose; or disturb or disquiet any
congregation engaged in any lawful assembly." And section 1119
provides the following:
"SEC. 1119.Free for use of public. — The streets and public
places of the city shall be kept free and clear for the use of the public,
and the sidewalks and crossings for the pedestrians, and the same shall
only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, That the holding of athletic games, sports, or
exercises during the celebration of national holidays in any streets or
 public places of the city and on the patron saint day of any district in
question, may be permitted by means of a permit issued by the Mayor,
who shall determine the streets or public places, or portions thereof,
where such athletic games, sports, or exercises may be held: And
provided, further, That the holding of any parade or procession in any
streets or public places is prohibited unless a permit therefor is first
secured from the Mayor, who shall, on every such occasion, determine
or specify the streets or public places for the formation, route, and
dismissal of such parade or procession: And provided, finally, That all
applications to hold a parade or procession shall be submitted to the
Mayor not less than twenty-four hours prior to the holding of such
parade or procession."
As there is no express and separate provision in the Revised
Ordinance of the City regulating the holding of public meeting or
assembly at any street or public places, the provisions of said section
1119 regarding the holding of any parade or procession in any street or
public places may be applied by analogy to meeting and assembly in any
street or public places.
Said provision is susceptible of two constructions: one is that the
Mayor of the City of Manila is vested with unregulated discretion to grant
or refuse to grant permit for the holding of a lawful assembly or meeting,
parade, or procession in the streets and other public places of the City of
Manila; and the other is that the applicant has the right to a permit which
shall be granted by the Mayor, subject only to the latter's reasonable
discretion to determine or specify the streets or public places to be used
for the purpose, with a view to prevent confusion by overlapping, to
secure convenient use of the streets and public places by others, and to
provide adequate and proper policing to minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that
we must adopt the second construction, that is, construe the provisions
of the said ordinance to mean that it does not confer upon the Mayor the
power to refuse to grant the permit, but only the discretion, in issuing the
permit, to determine or specify the streets or public places where the
parade or procession may pass or the meeting may be held.
Our conclusion finds support in the decision in the case of Willis
Cox vs. State of New Hampshire, 312 U. S., 569. In that case, the statute
of New Hampshire P. L. chap. 145, section 2, providing that "no parade
or procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee," was construed by
the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license, and
held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the
State Supreme Court, held that "a statute requiring persons using the
public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are
strictly limited, in the issuance of licenses, to a consideration of the time,
place, and manner of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to
provide proper policing, and are not invested with arbitrary discretion to
issue or refuse license, . . ."
We cannot adopt the other alternative construction or construe the
ordinance under consideration as conferring upon the Mayor power to
grant or refuse to grant the permit, which would be tantamount to
authorizing him to prohibit the use of the streets and other public places
for holding of meetings, parades or processions, because such a
construction would make the ordinance invalid and void or violative of the
constitutional limitations. As the Municipal Board is empowered only to
regulate the use of streets, parks, and other public places, and the word
"regulate," as used in section 2444 of the Revised Administrative Code,
means and includes the power to control, to govern, and to restrain, but
can not be construed as synonymous with "suppress" or "prohibit"
(Kwong Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can
not grant the Mayor a power which it does not have. Besides, as the
powers and duties of the Mayor as the Chief Executive of the City are
executive, and one of them is "to comply with and enforce and give the
necessary orders for the faithful performance and execution of the laws
and ordinances" (section 2434 [b] of the Revised Administrative Code),
the legislative police power of the Municipal Board to enact ordinances
regulating reasonably the exercise of the fundamental personal right of
the citizens in the streets and other public places, can not be delegated
to the Mayor or any other officer by conferring upon him unregulated
discretion or without laying down rules to guide and control his action by
which its impartial execution can be secured or partiality and oppression
prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the
Supreme Court of Illinois that, under Rev. St. Ill. c. 24, article 5 section 1,
which empowers city councils to regulate the use of the public streets,
the council has no power to ordain that no processions shall be allowed
upon the streets until a permit shall be obtained from the superintendent
of police, leaving the issuance of such permits to his discretion, since the
powers conferred on the council cannot be delegated by them.
The Supreme Court of Wisconsin in State ex rel. Garrabad vs.
Dering, 84 Wis., 585; 54 N. W., 1104, held the following:
"The objections urged in the case of City of Baltimore vs.
Radecke, 49 Md., 217, were also, in substance, the same, for the
ordinance in that case upon its face committed to the unrestrained will of
a single public officer the power to determine the rights of parties under
it, when there was nothing in the ordinance to guide or control his
action, and it was held void because 'it lays down no rules by which its
impartial execution can be secured, or partiality and oppression
prevented,' and that 'when we remember that action or nonaction may
proceed from enmity or prejudice, from partisan zeal or animosity, from
favoritism and other improper influences and motives easy of
concealment and difficult to be detected and exposed, it becomes
unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent
to every one who gives to the subject a moment's consideration. In fact,
an ordinance which clothes a single individual with such power hardly
falls within the domain of law, and we are constrained to pronounce it
inoperative and void.' . . . In the exercise of the police power, the
common council may, in its discretion, regulate the exercise of such
rights in a reasonable manner, but can not suppress them, directly or
indirectly, by attempting to commit the power of doing so to the mayor or
any other officer. The discretion with which the council is vested is a
legal discretion, to be exercised within the limits of the law, and not a
discretion to transcend it or to confer upon any city officer an arbitrary
authority, making him in its exercise a petty tyrant."
In re Frazee, 63 Michigan 399, 30 N. W., 72, a city ordinance
providing that "no person or persons, or associations or organizations
shall march, parade, ride, or drive, in or upon or through the public
streets of the City of Grand Rapids with musical instrument, banners,
flags, . . . without having first obtained the consent of the mayor or
common council of said city;" was held by the Supreme Court of
Michigan to be unreasonable and void. Said Supreme Court in the
course of its decision held:
". . . We must therefore construe this charter, and the powers it
assumes to grant, so far as it is not plainly unconstitutional, as only
conferring such power over the subjects referred to as will enable the
city to keep order, and suppress mischief, in accordance with the
limitations and conditions required by the rights of the people
themselves, as secured by the principles of law, which cannot be less
careful of private rights under a constitution than under the common law.
 "It is quite possible that some things have a greater tendency to
produce danger and disorder in the cities than in smaller towns or in
rural places. This may justify reasonable precautionary measures, but
nothing further; and no inference can extend beyond the fair scope of
powers granted for such a purpose, and no grant of absolute discretion
to suppress lawful action altogether can be granted at all. . . .
"It has been customary, from time immemorial, in all free
countries, and in most civilized countries, for people who are assembled
for common purposes to parade together, by day or reasonable hours at
night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social
demonstrations are resorted to for the express purpose of keeping unity
of feeling and enthusiasm, and frequently to produce some effect on the
public mind by the spectacle of union and numbers. They are a natural
product and exponent of common aims, and valuable factors in
furthering them. . . . When people assemble in riotous mobs, and move
for purposes opposed to private or public security, they become
unlawful, and their members and abettors become punishable. . . .
"It is only when political, religious, social, or other demonstrations
create public disturbances, or operate as nuisance, or create or
manifestly threaten some tangible public or private or private mischief,
that the law interferes.
"This by-law is unreasonable, because it suppresses what is in
general perfectly lawful, and because it leaves the power of permitting or
restraining processions, and their courses, to an unregulated official
discretion, when the whole matter, if regulated at all, must be by
permanent, legal provisions, operating generally and impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as
to the validity of the city ordinance which made it unlawful for any person,
society or club, or association of any kind, to parade any of the streets,
with flags, banners, or transparencies, drums, horns, or other musical
instruments, without the permission of the city council first had and
obtained. The appellants were members of the Salvation Army, and were
prosecuted for a violation of the ordinance, and the court in holding the
ordinance invalid said, "Ordinances to be valid must be reasonable; they
must not be oppressive; they must be fair and impartial; they must not be
so framed as to allow their enforcement to rest in official discretion . . .
Ever since the landing of the Pilgrims from the Mayflower the right to
assemble and worship according to the dictates of one's conscience, and
the right to parade in a peaceable manner and for a lawful purpose, have
been fostered and regarded as among the fundamental rights of a free
people. The spirit of our free institutions allows great latitude in public
parades and demonstrations whether religious or political . . . If this
ordinance is held valid, then may the city council shut off the parades of
those whose nations do not suit their views and tastes in politics or
religion, and permit like parades of those whose notions do. When men
in authority are permitted in their discretion to exercise power so
arbitrary, liberty is subverted, and the spirit of our free institutions
violated. . . . Where the granting of the permit is left to the unregulated
discretion of a small body of city eldermen, the ordinance cannot be
other than partial and discriminating in its practical operation. The law
abhors partiality and discrimination. . . ." (19 L. R. A., p. 861.)
In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P.
[2d], 1081, the Supreme Court of Colorado, in construing the provision of
section 1 of Ordinance No. 273 of the City of Walsenburg, which
provides: "That it shall be unlawful for any person or persons or
association to use the street of the City of Walsenburg, Colorado, for any
parade, procession or assemblage without first obtaining a permit from
the Chief of Police of the City of Walsenburg so to do," held the
following:
"[1]The power of municipalities, under our state law, to regulate
the use of public streets is conceded. '35 C.S.A., chapter 163, section
10, subparagraph 7. 'The privilege of a citizen of the United States to
use the streets . . . may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to the
general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or
denied.' Hague, Mayor, vs. Committee for Industrial Organization, 307
U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law. ed., 1423.
[2, 3] An excellent statement of the power of a municipality to
impose regulations in the use of public streets is found in the recent
case of Cox vs. New Hampshire, 312 U. S., 569; 61 S. Ct., 762, 765; 85
Law. ed., 1049; 133 A.L.R., 1936, in which the following appears: 'The
authority of a municipality to impose regulations in order to assure the
safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one
of the means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most familiar
illustration of this recognition of social need. Where a restriction of the
use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the
attempted exercise of some civil right which in other circumstances
would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to
disobey the municipal command or sought by that means to direct public
attention to an announcement of his opinions. As regulation of the use
of the streets for parades and processions is a traditional exercise of
control by local government, the question in a particular case is whether
 that control is exerted so as not to deny or unwarrantedly abridge the
right of assembly and the opportunities for the communication of thought
and the discussion of public questions immemorially associated with
resort to public places. Lovell vs. Criffin, 303 U.S., 444, 451; 58 S. Ct.,
666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial
Organization, 307 U.S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law.
ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey [Town of
Irvington]; 308 U. S., 147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155
[164]; Cantwell vs. Connecticut, 310 U.S., 296, 306, 307; 60 S. Ct., 900,
904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352.'
[4]Our concern here is the validity or nonvalidity of an ordinance
which leaves to the uncontrolled official discretion of the chief of police
of a municipal corporation to say who shall, and who shall not, be
accorded the privilege of parading on its public streets. No standard of
regulation is even remotely suggested. Moreover, under the ordinance
as drawn, the chief of police may for any reason which he may entertain
arbitrarily deny this privilege to any group. This is authorization of the
exercise of arbitrary power by a governmental agency which violates the
Fourteenth Amendment. People vs. Harris, 104 Colo., 386, 394; 91 P.
[2d], 989; 122 A.L.R. 1034. Such an ordinance is unreasonable and void
on its face. City of Chicago vs. Troter, 136 Ill., 430; 26 N. E., 359. See,
also, Anderson vs. City of Wellington, 40 Kan. 173; 19 P., 719; 2 L.R.A.,
110; 10 Am. St. Rep., 175; State ex rel. vs. Dering, 84 Wis., 585; 54 N.
W., 1104: 19 L. R. A., 858, 36 Am. St. Rep., 948; Anderson vs. Tedford,
80 Fla., 376; 85 So., 673; 10 A. L. R., 1481; State vs. Coleman, 96
Conn., 190; 113 A. 385, 387; 43 C. J., p. 419, section 549; 44 C. J., p.
1036, section 3885. . . .
"In the instant case the uncontrolled official suppression of the
privilege of using the public streets in a lawful manner clearly is apparent
from the face of the ordinance before us, and we therefore hold it null
and void."
The Supreme Court of the United States in Hague vs. Committee
for Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423,
declared that a municipal ordinance requiring the obtaining of a permit
for a public assembly in or upon the public streets, highways, public
parks, or public buildings of the city and authorizing the director of public
safety, for the purpose of preventing riots, disturbances, or disorderly
assemblage, to refuse to issue a permit when after investigation of all the
facts and circumstances pertinent to the application he believes it to be
proper to refuse to issue a permit, is not a valid exercise of the police
power. Said Court in the course of its opinion in support of the conclusion
said:
". . . Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
 mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of
the streets and public places has, from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.
"We think the court below was right in holding the ordinance
quoted in Note 1 void upon its face. It does not make comfort or
convenience in the use of streets or parks the standard of official action.
It enables the Director of Safety to refuse a permit on his mere opinion
that such refusal will prevent 'riots, disturbances or disorderly
assemblage.' It can thus, as the record discloses, be made the
instrument of arbitrary suppression of free expression of views on
national affairs for the prohibition of all speaking will undoubtedly
'prevent' such eventualities. But uncontrolled official suppression of the
privilege cannot be made a substitute for the duty to maintain order in
connection with the exercise of the right."
Section 2434 of the Administrative Code, a part of the Charter of
the City of Manila, which provides that the Mayor shall have the power to
grant and refuse municipal licenses or permits of all classes, cannot be
cited as an authority for the Mayor to deny the application of the
petitioner, for the simple reason that said general power is predicated
upon the ordinances enacted by the Municipal Board requiring licenses
or permits to be issued by the Mayor, such as those found in Chapters
40 to 87 of the Revised Ordinances of the City of Manila. It is not a
specific or substantive power independent from the corresponding
municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the
settled maxims in constitutional law is that the power conferred upon the
Legislature to make laws cannot be delegated by that department to any
other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative
body of a municipal corporation. Taking this into consideration, and that
the police power to regulate the use of streets and other public places
has been delegated or rather conferred by the Legislature upon the
Municipal Board of the City (section 2444 [u] of the Administrative Code)
it is to be presumed that the Legislature has not, in the same breath,
conferred upon the Mayor in section 2434 (m) the same power, specially
if we take into account that its exercise may be in conflict with the
exercise of the same power by the Municipal Board.
 Besides, assuming arguendo that the Legislature has the power to
confer, and in fact has conferred, upon the Mayor the power to grant or
refuse licenses and permits of all classes, independent from ordinances
enacted by the Municipal Board on the matter, and the provisions of
section 2444 (u) of the same Code and of section 1119 of the Revised
Ordinances to the contrary notwithstanding, such grant of unregulated
and unlimited power to grant or refuse a permit for the use of streets and
other public places for processions, parades, or meetings, would be null
and void, for the same reasons stated in the decisions in the cases
above quoted, specially in Willis Cox vs. New Hampshire, supra, wherein
the question involved was also the validity of a similar statute of New
Hamsphire. Because the same constitutional limitations applicable to
ordinances apply to statutes, and the same objections to a municipal
ordinance which grants unrestrained discretion upon a city officer are
applicable to a law or statute that confers unlimited power to any officer
either of the municipal or state governments. Under our democratic
system of government no such unlimited power may be validly granted to
any officer of the government, except perhaps in cases of national
emergency. As stated in State ex rel. Garrabad vs. Dering, supra, "The
discretion with which the council is vested is a legal discretion to be
exercised within the limits of the law, and not a discretion to transcend it
or to confer upon any city officer an arbitrary authority making in its
exercise a petty tyrant."
It is true that Mr. Justice Ostrand cited said provision of article
2434 (m) of the Administrative Code apparently in support of the decision
in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently
the quotation of said provision was made by the writer of the decision
under a mistaken conception of its purview and is an obiter dictum, for it
was not necessary for the decision rendered. The popular meeting or
assemblage intended to be held therein by the Communist Party of the
Philippines was clearly an unlawful one, and therefore the Mayor of the
City of Manila had no power to grant the permit applied for. On the
contrary, had the meeting been held, it was his duty to have the
promoters thereof prosecuted for violation of section 844, which is
punishable as misdemeanor by section 1262 of the Revised Ordinances
of the City of Manila. For, according to the decision, "the doctrine and
principles advocated and urged in the Constitution and by-laws of the
said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or
gatherings, as above stated, are highly seditious, in that they suggest
and incite rebelious conspiracies and disturb and obstruct the lawful
authorities in their duty."
 The reason alleged by the respondent in his defense for refusing
the permit is, "that there is a reasonable ground to believe, basing upon
previous utterances and upon the fact that passions, specially on the part
of the losing groups, remains bitter and high, that similar speeches will
be delivered tending to undermine the faith and confidence of the people
in their government, and in the duly constituted authorities, which might
threaten breaches of the peace and a disruption of public order." As the
request of the petition was for a permit "to hold a peaceful public
meeting," and there is no denial of that fact or any doubt that it was to be
a lawful assemblage, the reason given for the refusal of the permit can
not be given any consideration. As stated in the portion of the decision in
Hague vs. Committee on Industrial Organization, supra, "It does not
make comfort and convenience in the use of streets or parks the
standard of official action. It enables the Director of Safety to refuse the
permit on his mere opinion that such refusal will prevent riots,
disturbances or disorderly assemblage. It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs, for the prohibition of all speaking
will undoubtedly 'prevent' such eventualities." To this we may add the
following, which we make our own, said by Mr. Justice Brandeis in his
concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-
1107:
"Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burned women. It is the
function of speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent.
There must be reasonable ground to believe that the evil to be
prevented is a serious one . . .
"Those who won our independence by revolution were not
cowards. They did not fear political change. They did not exalt order at
the cost of liberty. . . .
"Moreover, even imminent danger cannot justify resort to
prohibition of these functions essential effective democracy, unless the
evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that
speech is likely to result in some violence or in destruction of property is
not enough to justify its suppression. There must be the probability of
serious injury to the state. Among freemen, the deterrents ordinarily to
be applied to prevent crimes are education and punishment for
violations of the law, not abridgment of the rights of free speech and
 assembly." Whitney vs. California, U. S. Sup. Ct. Rep., 71 Law., ed., pp.
1106-1107.)
In view of all the foregoing, the petition for mandamus is granted
and, there appearing no reasonable objection to the use of the Plaza
Miranda, Quiapo, for the meeting applied for, the respondent is ordered
to issue the corresponding permit, as requested. So ordered.
Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.
||| (Primicias v. Fugoso, G.R. No. L-1800, [January 27, 1948], 80 PHIL 71-127)

Malabanan vs. Ramento [G.R. No. 62270, May 21, 1984]

[G.R. No. 62270. May 21, 1984.]

CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS,

SOTERO LEONERO, and JUNE LEE, petitioners, vs. THE
HONORABLE ANASTACIO D. RAMENTO, in his capacity as
the Director of the National Capital Region of the Ministry of
Education, Culture and Sports, THE GREGORIO ARANETA
UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity
as the President of the Gregorio Araneta University
Foundation, GONZALO DEL ROSARIO, in his capacity as the
Director for Academic Affairs of the Gregorio Araneta
University Foundation; TOMAS B. MESINA, in his capacity as
the Dean of Student Affairs of the Gregorio Araneta University
Foundation; ATTY. LEONARDO PADILLA, in his capacity as
Chief Legal Counsel & Security Supervisor of the Gregorio
Araneta University Foundation; ATTY. FABLITA AMMAY,
ROSENDO GALVANTE and EUGENIA TAYAO, in their
capacities as members of the Ad Hoc Committee of the
Gregorio Araneta University Foundation, respondents.

Honesto N . Salcedo for petitioners.

Solicitor General and Leonardo G. Padilla and Fablita Ammay for
respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; FREEDOM OF SPEECH AND

PEACEABLE ASSEMBLY; LIBERTY TO DISCUSS MATTERS OF PUBLIC
INTEREST WITHOUT CENSORSHIP LIMITED BY A SHOWING OF A
CLEAR AND PRESENT DANGER OF A SUBSTANTIVE EVIL. — As is quite
clear from the opinion in Reyes v. Bagatsing, G.R. No. 65366, November 9,
1983, the invocation of the right to freedom of peaceable assembly carries
with it the implication that the right to free speech has likewise been
disregarded. Both are embraced in the concept of freedom of expression,
which is identified with the liberty to discuss publicly and truthfully, any, matter
of public interest without censorship or punishment and which "is not to be
limited, much less denied, except on a showing . . . of a clear and present
danger of a substantive evil that the state has a right to prevent."
2. ID.; ID.; ID.; STUDENT ASSEMBLY IN THE SCHOOL PREMISES
DOES NOT PRESENT A CLEAR AND PRESENT DANGER OF PUBLIC
DISORDER. .— Student leaders are hardly the timid, different types. They are
likely to be assertive and dogmatic. They would be ineffective if during a rally
they speak in the guarded and judicious language of the academe. Even a
sympathetic audience is not disposed to accord full credence to their fiery
exhortations. They take into account the excitement of the occasion, the
propensity of speakers to exaggerate, the exhuberance of youth.
They may give the speakers the benefit of their applause, but with the activity
taking place in the school premises and during the day time, no clear and
present danger of public disorder is discernible. This is without prejudice
disorder to the taking of disciplinary action for conduct, which, to borrow from
Tinker, "materially disrupts classwork or involves substantial disorder or
invasion of the rights of others."
3. ID.; ID.; DISORDERLY CONDUCT OF ASSEMBLIES; ONLY THE
GUILTY INDIVIDUALS TO BE PUNISHED; CASE OF UNITED STATES v.
APURADO. — Justice Carson, who penned the 1907 decision, United
States v. Apurado, 7 Phil. 422, correctly pointed out that "if the prosecution be
permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to
assemble and petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous occasion and
in the most peaceable manner would expose all those who took part therein
to the severest form of punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities." The
principle to be followed is enunciated thus: "If instances of disorderly conduct
occur on such occasions, the guilty individuals should be sought out and
punished therefor, but the utmost discretions must be exercised in drawing
the line between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising." A careful reading of this
decision is in order before private respondents attach, as they did in their
comments, as subversive character to the rally held by the students under the
leadership of petitioners.
4. ID.; ID.; ID.; ONE-YEAR SUSPENSION IMPOSED ON
PETITIONERS TOO SEVERE; PENALTY REDUCED TO ONE-WEEK
SUSPENSION. — There was a violation of the terms of the permit. The rally
was held at a place other than that specified, in the second floor lobby, rather
than the basketball court of the VMAS building of the University. Moreover, it
was continued longer than the period allowed. According to the decision of
respondent Ramento, the concerted activity went on until 5:30 p.m. Private
respondents could thus take disciplinary action. On those facts, however, an
admonition, even a censure — certainly not a suspension — could be the
appropriate penalty. Private respondents could and did take umbrage at the
fact that in view of such infraction — considering the places where and the
time when the demonstration took place — there was a disruption of the
classes and stoppage of work of the non-academic personnel. They would not
be unjustified then if they did take a much more serious view of the matter.
Even then a one-year period of suspension is much too severe. While the
discretion of both respondent University and respondent Ramento is
recognized, the rule of reason, the dictate of fairness calls for a much lesser
penalty. If the concept of proportionality between the offense committed and
the sanction imposed is not followed, an element of arbitrariness intrudes.
That would give rise to a due process question. To avoid this constitutional
objection, it is the holding of this Court that a one-week suspension would be
punishment enough.
5. ID.; ID.; RIGHTS GUARANTEED TO STUDENTS OF
EDUCATIONAL INSTITUTIONS; GUIDELINES TO BE OBSERVED IN THE
EXERCISE THEREOF. — The rights to peaceable assembly and free speech
are guaranteed to students of educational institutions. Necessarily, their
exercise to discuss matters affecting their welfare or involving public interest
is not to be subjected to previous restraint or subsequent punishment unless
there be a showing of a clear and present danger to a substantive evil that the
state has a right to prevent. As a corollary, the utmost leeway and scope is
accorded the content of the placards displayed or utterances made. The
peaceable character of an assembly could be lost, however, by an advocacy,
of disorder under the name of dissent, whatever grievances that may be aired
being susceptible to correction through the ways of the law. If the assembly is
to be held in school premises, permit must be sought from the school
authorities, who are devoid of the power to deny such request arbitrarily or
unreasonably. In granting such permit, there may be conditions as to the time
and place of the assembly to avoid disruption of classes or stoppage of work
of the non-academic personnel. Even if, however, there be violations of its
terms, the penalty incurred should not be disproportionate to the offense.
 DECISION

FERNANDO, C . J : p

The failure to accord respect to the constitutional rights of freedom of

peaceable assembly and free speech is the grievance alleged by petitioners,
students of the Gregorio Araneta University Foundation, in this certiorari,
prohibition and mandamus proceeding. The principal respondents are
Anastacio D. Ramento, Director of the National Capital Region of the Ministry
of Education, Culture and Sports and the Gregorio Araneta University
Foundation. 1 The nullification of the decision of
respondent Ramento affirming the action taken by respondent Gregorio
Araneta University Foundation finding petitioners guilty of illegal assembly and
suspending them is sought in this petition.cdll

The facts are not open to dispute. Petitioners were officers of the
Supreme Student Council of respondent University. They sought and were
granted by the school authorities a permit to hold a meeting from 8:00 A.M. to
12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other
students, they held a general assembly at the Veterinary Medicine and Animal
Science basketball court (VMAS), the place indicated in such permit, not in
the basketball court as therein stated but at the second floor lobby. At such
gathering they manifested In vehement and vigorous language their
opposition to the proposed merger of the Institute of Animal Science with the
Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the
Life Science Building and continued their rally. It was outside the area
covered by their permit. They continued their demonstration, giving utterance
to language severely critical of the University authorities and using
megaphones in the process. There was, as a result, disturbance of the
classes being held. Also, the non-academic employees, within hearing
distance, stopped their work because of the noise created. They were asked
to explain on the same day why they should not be held liable for holding an
illegal assembly. Then on September 9, 1982, they were informed through a
memorandum that they were under preventive suspension for their failure to
explain the holding of an illegal assembly in front of the Life Science Building.
The validity thereof was challenged by petitioners both before the Court of
First Instance of Rizal in a petition for mandamus with damages against
private respondents 2 and before the Ministry of Education, Culture, and
Sports. On October 20, 1982, respondent Ramento, as Director of the
National Capital Region, found petitioners guilty of the charge of having
violated par. 146(c) of the Manual for Private Schools more specifically their
holding of an illegal assembly which was characterized by the violation of the
permit granted resulting in the disturbance of classes and oral defamation.
The penalty was suspension for one academic year. Hence this petition. LLpr

On November 16, 1982, this Court issued the following resolution:

"Acting on the urgent ex-parte motion for the immediate issuance of a
temporary mandatory order filed by counsel for petitioners, dated November
12, 1982, the Court Resolved to ISSUE A TEMPORARY RESTRAINING
ORDER enjoining all respondents or any person or persons acting in their
place or stead from enforcing the order of the Ministry of Education and
Culture dated October 20, 1982 finding the petitioners guilty of the charges
against them and suspending them for one (1) academic year with a stern
warning that a commission of the same or another offense will be dealt with
utmost severity, effective as of this date and continuing until otherwise
ordered by this Court, thus allowing them to enroll, if so minded." 3
Both public and private respondents submitted their comments. Private
respondents prayed for the dismissal of the petition "for lack of factual and
legal basis and likewise [prayed] for the lifting of the temporary restraining
order dated November 16, 1982." 4 Public respondent Ramento, on the other
hand, through the Office of the Solicitor General, prayed for the dismissal of
the petition based on the following conclusion: "Consequently, it is respectfully
submitted that respondent Director of the MECS did not commit any error,
much less abused his discretion, when he affirmed the decision of respondent
University finding petitioners guilty of violations of the provisions of the Manual
of Regulations for Private Schools and the Revised Student's Code of
Discipline and ordering their suspension for one (1) academic school year.
However, since said suspension has not been enforced except only briefly,
thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their
courses, and allowing petitioners Lee and Jalos to continue their schooling, if
they so desire, this proceeding is now moot and academic." 5
With the submission of such comments considered as the answers of
public and private respondents, the case was ready for decision.
This petition may be considered moot and academic if viewed solely
from the fact that by virtue of the temporary restraining order issued by this
Court petitioners were allowed to enroll in the ensuing semester, with three of
them doing so and with the other two equally entitled to do so. Moreover,
there is the added circumstance of more than a year having passed since
October 20, 1982 when respondent Ramento issued the challenged decision
suspending them for one year. Nonetheless, with its validity having been put
in issue, for being violative of the constitutional rights of freedom of peaceable
assembly and free speech, there is need to pass squarely on the question
raised.LexLib
 This Court accordingly rules that respect for the constitutional rights of
peaceable assembly and free speech calls for the setting aside of the decision
of respondent Ramento, the penalty imposed being unduly severe. It is true
that petitioners held the rally at a place other than that specified in the permit
and continued it longer than the time allowed. Undeniably too, they did disturb
the classes and caused the work of the non-academic personnel to be left
undone. Such undesirable consequence could have been avoided by their
holding the assembly in the basketball court as indicated in the permit.
Nonetheless, suspending them for one year is out of proportion to their
misdeed, The petition must be granted and the decision of
respondent Ramento nullified, a much lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the
invocation of the right to freedom of peaceable assembly carries with it the
implication that the right to free speech has likewise been disregarded. Both
are embraced in the concept of freedom of expression, which is identified with
the liberty to discuss publicly and truthfully, any matter of public interest
without censorship or punishment and which "is not to be limited, much less
denied, except on a showing . . . of a clear and present danger of a
substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and
rally from the Luneta public park to the gates of the United States Embassy,
hardly two blocks away, where in an open space of public property, a short
program would be held, Necessarily then, the question of the use of a public
park and of the streets leading to the United States Embassy was before this
Court. We held that streets and parks have immemorially been held in trust for
the use of the public and have been used for purposes of assembly to
communicate thoughts between citizens and to discuss public issues. 8
3. The situation here is different. The assembly was to be held not in a
public place but in private premises, property of respondent University. There
is in the Reyes opinion as part of the summary this relevant excerpt: "The
applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required." 9 Petitioners did seek such
consent. It was granted. According to the petition: "On August 27, 1982, by
virtue of a permit granted to them by the school administration, the Supreme
Student Council where your petitioners are among the officers, held a General
Assembly at the VMAS basketball court of the respondent
University." 10 There was an express admission in the Comment of private
respondent University as to a permit having been granted for petitioners to
hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the
penalty imposed, there was an infringement of the right to peaceable
assembly and its cognate right of free speech. Cdpr

4. Petitioners invoke their rights to peaceable assembly and free

speech. They are entitled to do so. They enjoy like the rest of the citizens the
freedom to express their views and communicate their thoughts to those
disposed to listen in gatherings such as was held in this case. They do not, to
borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community
School District, 12 "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." 13 While, therefore, the authority of
educational institutions over the conduct of students must be recognized, it
cannot go so far as to be violative of constitutional safeguards. On a more
specific level, there is persuasive force to this formulation in the Fortas
opinion: "The principal use to which the schools are dedicated is to
accommodate students during prescribed hours for the purpose of certain
types of activities. Among those activities is personal intercommunication
among the students. This is not only an inevitable part of the process of
attending school; it is also an important part of the educational process. A
student's rights, therefore, do not embrace merely the classroom hours. When
he is in the cafeteria, or on the playing field, or on the campus during the
authorized hours, he may express his opinions, even on controversial
subjects like the conflict in Vietnam, if he does so without 'materially and
substantially interfer[ing] with the requirements of appropriate discipline in the
operation of the school' and without colliding with the rights of others. . . . But
conduct by the student, in class or out of it, which for any reason — whether it
stems from time, place, or type of behavior — materially disrupts classwork or
involves substantial disorder or invasion of the rights of others is, of course,
not immunized by the constitutional guarantee of freedom of speech." 14
5. As tested by such a standard, what is the verdict on the complaint of
petitioners that there was a disregard of their constitutional rights to
peaceable assembly and free speech. It must be in their favor, but subject to
qualification, in view of their continuing their demonstration in a place other
than that specified in the permit for a longer period and their making use of
megaphones therein, resulting in the disruption of classes and the stoppage
of work by the non-academic personnel in the vicinity of such assembly.
6. Objection is made by private respondents to the tenor of the
speeches by the student leaders. That there would be a vigorous presentation
of views opposed to the proposed merger of the Institute of Animal Science
with the Institute of Agriculture was to be expected. There
was no concealment of the fact that they were against such a move as it
confronted them with a serious problem ("isang malaking suliranin.") 15 They
believed that such a merger would result in the increase in tuition fees, an
additional headache for their parents ("isa na naman sakit sa ulo ng ating
mga magulang."). 16 If in the course of such demonstration, with an
enthusiastic audience goading them on, utterances, extremely critical, at
times even vitriolic, were let loose, that is quite understandable. Student
leaders are hardly the timid, diffident types. They are likely to be assertive and
dogmatic. They would be ineffective if during a rally they speak in the guarded
and judicious language of the academe. At any rate, even a sympathetic
audience is not disposed to accord full credence to their fiery exhortations.
They take into account the excitement of the occasion, the propensity of
speakers to exaggerate, the exuberance of youth. They may give the
speakers the benefit of their applause, but with the activity taking place in the
school premises and during the daytime, no clear and present danger of
public disorder is discernible. This is without prejudice to the taking of
disciplinary action for conduct, which, to borrow from Tinker, "materially
disrupts classwork or involves substantial disorder or invasion of the rights of
others."
7. Nor is this a novel approach to the issue raised by petitioners that
they were denied the right to peaceable assembly. In a 1907 decision, United
States v. Apurado, 17 the facts disclosed that shortly before the municipal
council of San Carlos, Occidental Negros, started its session, some five
hundred residents of the municipality assembled near the municipal building,
and, upon the opening of the session, a substantial number of such persons
barged into the council chamber, demanding that the municipal treasurer, the
municipal secretary, and the chief of police be dismissed, submitting at the
same time the proposed substitutes. The municipal council gave its
conformity. Such individuals were wholly unarmed except that a few carried
canes; the crowd was fairly orderly and well-behaved except in so far as their
pressing into the council chamber during a session of that body could be
called disorder and misbehavior. It turned out that the movement had its origin
in religious differences. The defendant Filomeno Apurado and many other
participants were indicted and convicted of sedition in that they allegedly
prevented the municipal government from freely exercising its duties. On
appeal, the Supreme Court reversed. Justice Carson, who penned the
opinion, correctly pointed out that "if the prosecution be permitted to seize
upon every instance of such disorderly conduct by individual members of a
crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble and to
petition for redress of grievances would become a delusion and a snare and
the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the
severest form of punishment, if the purposes which they sought to attain did
not happen to be pleasing to the prosecuting authorities." 18 The principle to
be followed is enunciated thus: "If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising." 19 A careful reading of this
decision is in order before private respondents attach, as they did in their
comments, a subversive character to the rally held by the students under the
leadership of petitioners.
8. It does not follow, however, that petitioners can be totally absolved
for the events that transpired. Admittedly, there was a violation of the terms of
the permit. The rally was held at a place other than that specified, in the
second floor lobby, rather than the basketball court, of the VMAS building of
the University. Moreover, it was continued longer than the period allowed.
According to the decision of respondent Ramento, the "concerted activity
[referring to such assembly] went on until 5:30 p.m." 20 Private respondents
could thus, take disciplinary action. On those facts, however, an admonition,
even a censure — certainly not a suspension — could be the appropriate
penalty. Private respondents could and did take umbrage at the fact that in
view of such infraction — considering the places where and the time when the
demonstration took place — there was a disruption of the classes and
stoppage of work of the non-academic personnel. They would not be
unjustified then if they did take a much more serious view of the matter. Even
then a one-year period of suspension is much too severe, While the discretion
of both respondent University and respondent Ramento is recognized, the
rule of reason, the dictate of fairness calls for a much lesser penalty. If the
concept of proportionality between the offense committed and the sanction
imposed is not followed, an element of arbitrariness intrudes. That would give
rise to a due process question. To avoid this constitutional objection, it is the
holding of this Court that a one-week suspension would be punishment
enough. LexLib

9. One last matter. The objection was raised that petitioners failed to
exhaust administrative remedies, That is true, but hardly decisive. Here, a
purely legal question is presented. Such being the case, especially so where
a decision on a question of law is imperatively called for, and time being of the
essence, this Court has invariably viewed the issue as ripe for adjudication.
What cannot be too sufficiently stressed is that the constitutional rights to
peaceable assembly and free speech are invoked by petitioners. Moreover,
there was, and very likely there will continue to be in the future, militancy and
assertiveness of students on issues that they consider of great importance,
whether concerning their welfare or the general public. That they have a right
to do as citizens entitled to all the protection in the Bill of Rights.
10. It would be most appropriate then, as was done in the case
of Reyes v. Bagatsing, 21 for this Court to lay down the principles for the guidance of
 school authorities and students alike. The rights to peaceable assembly and free speech are
guaranteed students of educational institutions. Necessarily, their exercise to discuss matters
affecting their welfare or involving public interest is not to be subjected to previous restraint
or subsequent punishment unless there be a showing of a clear and present danger to a
substantive evil that the state has a right to present. As a corollary, the utmost leeway and
scope is accorded the content of the placards displayed or utterances made. The peaceable
character of an assembly could be lost, however, by an advocacy of disorder under the name
of dissent, whatever grievances that may be aired being susceptible to correction through the
ways of the law. If the assembly is to be held in school premises, permit must be sought from
its school authorities, who are devoid of the power to deny such request arbitrarily or
unreasonably. In granting such permit, there may be conditions as to the time and place of the
assembly to avoid disruption of classes or stoppage of work of the non-academic personnel.
Even if, however, there be violations of its terms, the penalty incurred should not be
disproportionate to the offense. Cdpr
WHEREFORE, the petition is granted. The decision dated October 20,
1982 of respondent Ramento imposing a one-year suspension is nullified and
set aside. The temporary restraining order issued by this Court in the
resolution of November 18, 1982 is made permanent. As of that date,
petitioners had been suspended for more than a week. In that sense, the one-
week penalty had been served. No costs.
Teehankee, Makasiar, Guerrero, Abad Santos, Melencio-Herrera,
Plana, Escolin, Relova, Gutierrez, Jr. and De la Fuente, JJ ., concur.
Aquino, Concepcion, Jr. and De Castro, JJ ., took no part.
||| (Malabanan v. Ramento, G.R. No. 62270, [May 21, 1984], 214 PHIL 319-331)

De la Cruz vs. Court of Appeals [G.R. No. 126183, March 25, 1999]

EN BANC

[G.R. No. 126183. March 25, 1999.]

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA

EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA,
ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA
PIZARRO, petitioners, vs. COURT OF APPEALS, CIVIL
SERVICE COMMISSION and THE SECRETARY OF THE
DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS, respondents.
 [G.R. No. 129221. March 25, 1999.]

ROLANDO ALURA, CLARA ALVAREZ, POFIRIO AUSTRIA,

VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA,
NELSON DULDULAO, LEA POCONG, ENRICO RAYMUNDO,
MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA,
NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA
BANUA, CAROLINA BULACLAC, DANILO CABALLES,
ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO,
ANACLETA CORRALES, GLORIA CUEVAS,
CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO,
MATILDE DINGLE, ROSARIO DULDULAO, CONRADA
ENDRINA, LUZVIMINDA ESPINO, VIRGILIO ESTRADA,
DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA
GARCENILA, CORAZON GONZALES, VIOLETA GUANIZO,
SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO,
LEONOR LACERNA, TERESITA LAGUMBAY, TERESITA
LAURENTE, CARMELITA LEGION, LEONARDO LIMBO,
EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA
MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA
NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM,
MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA
PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA
REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA
SALVADOR, CATHERINE SAN AGUSTIN, LIBERTY SISON,
ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS,
BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE
VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA
VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE
PARMISANO, FELIPE ALACAR, JOSE FETALVERO, JR.,
MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO
and LORA CLEMENCIA, petitioners, vs. COURT OF APPEALS,
CIVIL SERVICE COMMISSION, and
SECRETARY OF EDUCATION CULTURE AND
SPORTS, respondents.

Froilan M. Bacungan & Associates for petitioners.

The Solicitor General for respondents.

SYNOPSIS
 These consolidated petitions are among several petitions filed with
this Court arising from the much publicized public school teachers' mass
actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila
who were simultaneously charged, preventively suspended, and eventually
dismissed in October 1990 by then Secretary Cariño of the DECS. Petitioners
appealed to the Merit Systems Protection Board (MSPB) and then to the Civil
Service Commission. The CSC found petitioners guilty of "conduct prejudicial to
the best interest of the service" for having participated in the mass actions and
imposed upon them the reduced penalty of 6 months suspension. However, in
view of the length of time that petitioners had been out of the service by
reason of the immediate implementation of the dismissal orders of Secretary
Cariño, the CSC likewise ordered petitioners' automatic reinstatement in the
service without back wages. Petitioners initially filed petitions for certiorari with
this Court but they were all referred to the Court of Appeals pursuant to
RA Circular No. 1-95. The Court of Appeals dismissed the petitions for
lack of merit. Hence, this consolidated petition for review on certiorari.
The petitions must be denied in view of previous
rulings of this Court already settling all the issues raised by petitioners. The
public school teachers in the case of the 1990 mass actions did not exercise their
constitutional rights within reasonable limits. On the contrary, they committed
acts prejudicial to the best interest of the service by staging the mass protests on
regular school days; abandoning their classes and refusing to go back even after
they had been ordered to do so. The teachers were penalized not because
they exercised their right to peaceably assemble but because of the manner by
which such right was exercised, i.e., going on unauthorized and unilateral
absences thus disrupting classes in various schools in Metro Manila which
produced adverse effects upon the students for whose education the teachers
were responsible.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT;

PRINCIPLE OF 'STARE DECISIS.' — The petitions must be denied in
view of previous rulings of this Court already settling all the issues raised by
petitioners. It is a very desirable and necessary judicial practice that when
a court has laid down a principle of law as applicable to a certain state of facts, it
will adhere to that principle and apply it to all future cases where the facts are
substantially the same. Stare decisis et non quieta movere. Stand by the
decisions and disturb not what is settled.
 2. CONSTITUTIONAL LAW; CIVIL SERVICE; RIGHT OF PUBLIC
SCHOOL TEACHERS TO PEACEABLY ASSEMBLE AND PETITION THE
GOVERNMENT FOR REDRESS OF GRIEVANCES, NOT EXERCISED WITHIN
REASONABLE LIMITS WHEN THEY STAGED MASS PROTESTS ON
REGULAR SCHOOL DAYS. — The public school teachers in the case of the
1990 mass actions did not exercise their constitutional rights within reasonable
limits. On the contrary, they committed acts prejudicial to the best interest of the
service by staging the mass protests on regular school days, abandoning their
classes and refusing to go back even after they had been ordered to do so. Had
the teachers availed of their free time — recess, after classes, weekends or
holidays — to dramatize their grievances and to dialogue with the proper
authorities within the bounds of law; no one — not the DECS, the CSC or even
the Supreme Court — could have held them liable for their participation in the
mass actions. What were pitted in the 1990 mass actions against the
rights of free expression and of assembly were inferior property rights while the
higher consideration involved in the case of the striking teachers was the
education of the youth which must, at the very least, be equated with the
freedom of assembly and to petition the government for redress of grievances.
We again stressed that the teachers were penalized not because
they exercised their right to peaceably assemble but because of the manner by
which such right was exercised, i.e., going on unauthorized and unilateral
absences thus disrupting classes in various schools in Metro Manila which
produced adverse effects upon the students for whose education the teachers
were responsible.
3. ID.; ID.; RIGHT TO BACKWAGES OF TEACHERS REINSTATED TO
SERVICE AFTER DISMISSAL ORDERS WERE COMMUTED TO
SUSPENSION, NOT APPRECIATED ON THE GROUND THAT THEY WERE
NEITHER EXONERATED NOR UNJUSTIFIABLY SUSPENDED. — The
issue of whether back wages may be awarded to teachers ordered reinstated to
the service after the dismissal orders of Secretary Cariño were commuted by the
CSC to six (6) months suspension is already settled.
In Bangalisan v. Court of Appeals we resolved the issue in the negative on the
ground that the teachers were neither exonerated nor unjustifiably suspended,
two (2) circumstances necessary for. the grant of back wages in administrative
disciplinary cases. The immediate implementation of the final orders for
dismissal even pending appeal was justified by the
provision of the Administrative Code of 1987. Having been found to have
actually participated in the illegal mass actions although found answerable for a
lesser offense, petitioners could not be considered as fully innocent of the
charges against them: Being found liable for a lesser offense is not equivalent to
exoneration.
 DECISION

BELLOSILLO, J : p

These consolidated petitions 1 are among several petitions filed with

this Court arising from the much-publicized public school teachers' mass
actions of September/October 1990.
Petitioners are public school teachers from various schools in Metro Manila
who were simultaneously charged, preventively suspended, and eventually
dismissed in October 1990 by then Secretary Isidro D. Cariño of the
Department of Education, Culture and Sports (DECS), in decisions issued by him
which uniformly read —
This is a motu-propio administrative complaint separately filed by
the Secretary of Education, Culture and Sports against the following
public school teachers . . . based on the report submitted by their
respective school principals wherein it was alleged that the above-
named teachers participated in the mass action/illegal strike on Sept. 19-
21, 1990 and subsequently defied the return-to-work order dated
September 17, 1990 issued by this Office, which acts constitute grave
misconduct, gross neglect of duty, gross violation of Civil Service Law,
Rules and Regulations and reasonable office regulations, refusal to
perform official duty, gross insubordination, conduct prejudicial to the
best interest of the service and absence without official leave (AWOL), in
violation of Presidential Decree 807, otherwise known as the Civil
Service Decree of the Philippines.
Required to explain within a period of not less than 72 hours but
not more than 5 days from receipt of the complaint, respondents failed to
submit the required answer within the given time up to the present, and
despite the denial of their request for extension of 30 days within which
to submit their answers dated September 25, 1990 filed by their counsel,
Atty. Gregorio Fabros, in a letter of this Office to him dated September
28, 1990, respondents failed to submit the same, which failure, is
considered a waiver on their part of their right to answer the charges and
to controvert the same.
Wherefore, after a careful evaluation of the records, this Office
finds the respondents guilty as charged.
In accordance with Memorandum Circular 30 s. 1989 of the Civil
Service Commission on Guidelines in the Application of Penalty in
Administrative Cases, the herein respondents are dismissed from Office
effective immediately.
The decisions dismissing petitioners were immediately implemented.
 Petitioners appealed to the Merit Systems Protection Board (MSPB) and
then to the Civil Service Commission (CSC). In 1993 the CSC found petitioners
guilty of "conduct prejudicial to the best interest of the service" for having
participated in the mass actions and imposed upon them the reduced
penalty of six (6) months' suspension. However, in view of the length of time that
petitioners had been out of the service by reason of the immediate
implementation of the dismissal orders of Secretary Cariño, the CSC likewise
ordered petitioners' automatic reinstatement in the service without back wages.
Petitioners were unhappy with the CSC decision. They initially filed
petitions for certiorari with this Court, docketed as G.R. Nos. 111998, 2 114435-
5506, 3 and 116312-19, 4 which were all referred to
the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 5 and
there re-docketed as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-
G.R. SP Nos. 37784, 37808-37014, respectively.
On 29 November 1995 the Special Third
Division of the Court of Appeals 6 rendered a joint decision in CA-G.R. SP Nos.
37619-20 dismissing the petitions for lack of merit. 7 The appellate court ruled
that the questioned resolutions of the Civil Service Commission finding
petitioners guilty of conduct prejudicial to the best interest of the service were
based on reasonable and justifiable grounds; that petitioners' perceived
grievances were no excuse for them not to conduct classes and defy the return-
to-work order issued by their superiors; that the immediate execution of the
dismissal orders of Secretary Cariño was sanctioned by Sec. 47, par.
(2), of the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par.
(b), Art. IX of PD No. 807, 8 and Sec. 32, Rule XIV of the Omnibus Rules
Implementing Book V of E.O. No. 292. Their motion for reconsideration having
been denied on 15 May 1997, 9 petitioners then appealed by certiorari to
this Court on 26 June 1997, docketed as G.R. No. 129221.
Meanwhile, on 24 April 1998 the Tenth
Division of the Court of Appeals 10 rendered a joint decision in CA-G.R. SP No.
37784 and Nos. 37808-14 likewise dismissing the petitions for
lack of merit. 11 The appellate court rejected petitioners' contention that they
should not have been penalized for participating in the September/October 1990
mass actions because they were merely exercising their constitutional right to
free assembly. In so ruling the Court of Appeals cited Manila Public School
Teachers Association v. Laguio, Jr. 12 wherein this Court ruled that the public
school teachers' mass actions of September/October 1990 were "to all intents
and purposes a strike . . . constitut[ing] a concealed and unauthorized
stoppage of, or absence from, work which it was the teachers' duty to perform,
undertaken for essentially economic reasons." Petitioners' contention that
Secretary Cariño's decision to dismiss them was not supported by evidence was
likewise rejected in view of petitioners' admissions and/or failure to refute the
factual finding that petitioners actually joined the mass actions based on the
report of absences submitted by their respective school principals. Their motion
for reconsideration having been denied in the resolution of 20 August
1996, 13 petitioners then filed a petition for review on certiorari with this Court on
1 October 1996, docketed as G.R. No. 126183.
By resolution of 7 October 1997 we granted petitioners' motion for the
consolidation of G.R. Nos. 126183 and 129221 involving as they did common
questions of fact and law.
Petitioners contend that the Court of Appeals grievously erred in affirming
the CSC resolutions finding them guilty of conduct prejudicial to the best
interest of the service when their only "offense" was to exercise their
constitutional right to peaceably assemble and petition the government for
redress of their grievances. Moreover petitioners insist that the mass
actions of September/October 1990 were not "strikes" as there was no actual
disruption of classes. Petitioners therefore ask for exoneration or, in the
alternative, award of back wages for the period of three (3) years when they were
not allowed to work while awaiting resolution of their appeals by the MSPB and
CSC, deducting the period of six (6) months' suspension eventually meted them.
The petitions must be denied in view of previous
rulings of this Court already settling all the issues raised by petitioners. It is a
very desirable and necessary judicial practice that when a court has laid down a
principle of law as applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases where the facts are substantially the
same. 14 Stare decisis et non quieta movere. Stand by the decisions and disturb
not what is settled. 15
As early as 18 December 1990 we have categorically ruled in the
consolidated cases of Manila Public School Teachers Association v. Laguio,
Jr. 16 and Alliance of Concerned Teachers v. Hon. Isidro Cariño 17 that the mass
actions of September/October 1990 staged by Metro Manila public school
teachers "amounted to a strike in every sense of the term, constituting as they
did, a concerted and unauthorized stoppage of or absence from work which it
was said teachers' sworn duty to perform, carried out for essentially economic
reasons — to protest and pressure the Government to correct what, among other
grievances, the strikers perceived to be the unjust or prejudicial
implementation of the salary standardization law insofar as they were
concerned, the non-payment or delay in payment of various fringe benefits and
allowances to which they were entitled, and the imposition of additional teaching
loads and longer teaching hours." In Rolando Gan v. Civil Service
Commission, 18 we denied the claim that the teachers were thereby denied their
rights to peaceably assemble and petition the government for
redress of grievances reasoning that this constitutional liberty to be upheld, like
any other liberty, must be exercised within reasonable limits so as not to
prejudice the public welfare. But the public school teachers in the case of the
1990 mass actions did not exercise their constitutional rights within reasonable
limits. On the contrary, they committed acts prejudicial to the best interest of the
service by staging the mass protests on regular school days, abandoning their
classes and refusing to go back even after they had been ordered to do so. Had
the teachers availed of their free time — recess, after classes, weekends or
holidays — to dramatize their grievances and to dialogue with the proper
authorities within the bounds of law, no one — not the DECS, the CSC or even
the Supreme Court — could have held them liable for their participation in the
mass actions. 19
With respect to our ruling in PBM Employees Organization v. Philippine
Blooming Mills Co., Inc., 20 invoked by petitioners, we have likewise already ruled
in the Rolando Gan case 21 that the PBM ruling — that the rights of free
expression and assembly could not be lightly disregarded as they occupy a
preferred position in the hierarchy of civil liberties — was not applicable to defend
the validity of the 1990 mass actions because what were pitted therein against
the rights of free expression and of assembly were inferior property rights while
the higher consideration involved in the case of the striking teachers was the
education of the youth which must, at the very least, be equated with the
freedom of assembly and to petition the government for redress of grievances. 22
We affirmed the foregoing rulings in Bagana v. Court of Appeals 23 by
denying a similar petition filed by another group of teachers who participated in
the 1990 mass actions but who claimed to have been merely exercising their
constitutional right to free assembly. We held in Bagana that
the Court of Appeals committed no reversible error in affirming the CSC
resolutions finding the teachers guilty of conduct prejudicial to the best
interest of the service and imposing penalties of six (6) months' suspension
without pay. In Bangalisan v. Court of Appeals 24 we added that the persistent
refusal of the striking teachers to call the mass actions by the conventional term
"strike" did not erase the true nature of the mass actions as unauthorized
stoppages of work the purpose of which was to obtain a favorable response to
the teachers' economic grievances. We again stressed that the teachers were
penalized not because they exercised their right to peaceably assemble but
because of the manner by which such right was exercised, i.e., going on
unauthorized and unilateral absences thus disrupting classes in various schools
in Metro Manila which produced adverse effects upon the students for whose
education the teachers were responsible. But herein petitioners contend that
classes were not actually disrupted because substitute teachers were
immediately appointed by Secretary Cariño. Besides being a purely factual
assertion which this Court cannot take cognizance of in a petition for review, the
fact that the prompt remedial action taken by Secretary Cariño might have
partially deflected the adverse effects of the mass protests did not erase the
administrative liability of petitioners for the intended consequences thereof which
were the very reason why such prompt remedial action became necessary.
Considering the foregoing, we find that respondent Court of Appeals did
not err in sustaining the CSC resolutions finding petitioners guilty of conduct
prejudicial to the best interest of the service.
As an alternative prayer, petitioners ask that in the event their exoneration
is not decreed they be awarded back wages for the period when they were not
allowed to work by reason of the supposed unjustified immediate
implementation of the dismissal orders of Secretary Cariño while awaiting
resolution of their appeals by the MSPB and CSC.
The issue of whether back wages may be awarded to teachers ordered
reinstated to the service after the dismissal orders of Secretary Cariño were
commuted by the CSC to six (6) months' suspension is already settled.
In Bangalisan v. Court of Appeals 25
As to the immediate execution of the decision of the Secretary
against petitioners, the same is authorized by Section 47, paragraph
(2), of Executive Order No. 292, thus: "The Secretaries and
heads of agencies and instrumentalities, provinces, cities and
municipalities shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and employees under their
jurisdiction. Their decision shall be final in case the penalty imposed is
suspension for not more than thirty days or fine in an amount not
exceeding thirty days' salary. In case the decision rendered by a bureau
or office is appealable to the Commission, the same shall be executory
except when the penalty is removal, in which case the same shall be
executory only after confirmation by the Secretary concerned.
And since it was already the final dismissal orders of Secretary Cariño which
were being carried out, immediate implementation even pending appeal was
clearly sanctioned by the aforequoted provision of the Administrative
Code of 1987. 26 Hence, being legal, the immediate execution of the dismissal
orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries,
namely, Abellera v. City of Baguio 27 and Bautista v. Peralta 28 being cases
which involved the unjustified immediate execution of the dismissal orders of the
then Civil Service Commissioner pending appeal to the Civil Service
Board of Appeals are therefore not applicable to justify petitioners' prayer.
Neither could petitioners be considered to have been exonerated from the
charges levelled against them by Secretary Cariño from the mere fact that they
were found guilty only of conduct prejudicial to the best interest of the service by
the CSC. It must be remembered that Secretary Cariño charged petitioners with
grave misconduct, gross neglect of duty, gross violation of civil service law, rules
and regulations, etc., for having participated in the 1990 illegal mass actions. On
appeal the CSC while affirming the factual finding that petitioners indeed
participated in the mass actions found them liable only for conduct prejudicial to
the best interest of the service. Clearly the CSC decision did not proceed from a
finding that petitioners did not commit the acts complained of. Having been found
to have actually participated in the illegal mass actions although found
answerable for a lesser offense, petitioners could not be considered as fully
innocent of the charges against them. 29 Being found liable for a lesser offense is
not equivalent to exoneration. 30
Thus in Bangalisan we denied the claim for back wages of those teachers
who were found to have actually participated in the 1990 mass actions but
granted the claim of one Rodolfo Mariano who was absent only because he
attended the wake and interment of his grandmother.
In Jacinto v. Court of Appeals 31 we again denied the claim for back
wages of teachers found to have given cause for their suspension, i.e., their
unjustified abandonment of classes to the prejudice of their students but granted
the claim of Merlinda Jacinto who was absent because of illness. cdasia

Petitioners do not deny, nay they even admit, having participated in the
1990 mass actions. Thus having given cause for their suspension, their prayer
for back wages must be denied conformably with settled rulings of this Court.
WHEREFORE, the petitions are DENIED and the assailed
Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996
are AFFIRMED. No costs.
SO ORDERED.
(Dela Cruz v. Court of Appeals, G.R. Nos. 126183 & 129221, [March 25, 1999],
|||

364 PHIL 786-799)

PBM Employees Association vs. Philippine Blooming Mills [G.R. No. L-31195, June 5,
1973]

[G.R. No. L-31195. June 5, 1973.]

PHILIPPINE BLOOMING MILLS EMPLOYEES ORGANIZATION,

NICANOR TOLENTINO, FLORENCIO PADRIGANO, RUFINO,
ROXAS, MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO
 MUNSOD, petitioners, vs. PHILIPPINE BLOOMING MILLS CO.,
INC. and COURT OF INDUSTRIAL RELATIONS, respondents.

L. S. Osorio & P. B. Castillon and J . C . Espinas & Associates for

petitioners.
Demetrio B. Salem & Associates for private respondent.

DECISION

MAKASIAR, J : p

The petitioner Philippine Blooming Mills Employees Organization

(hereinafter referred to as PBMEO) is a legitimate labor union. composed of
the employees of the respondent Philippine Blooming Mills Co., Inc., and
petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de
Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo
Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass
demonstration at Malacañang on March 4, 1969, in protest against alleged
abuses of the Pasig police, to be participated in by the workers in the first shift
(from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts
(from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they
informed the respondent Company of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge
Joaquin M. Salvador of the respondent Court reproduced the following
stipulation of facts of the parties —
parties —
"3. That on March 2, 1969 complainant company learned of the
projected mass demonstration at Malacanang in protest against alleged
abuses of the Pasig Police Department to be participated by the first shift
(6:00 AM - 2:00 PM) workers as well as those working in the regular
shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the morning of
March 4, 1969;
"4. That a meeting was called by the Company on March 3, 1969
at about 11:00 A.M. at the Company's canteen, and those present were:
for the Company: (1) Mr. Arthus L. Ang, (2) Atty. Cesareo S. de Leon,
Jr., (3) and all department and section heads. For the PBMEO: (1)
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
 "5. That the Company asked the union panel to confirm or deny
said projected mass demonstration at Malacañang on March 4, 1969.
PBMEO, thru Benjamin Pagcu who acted as spokesman of the union
panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union
has no quarrel or dispute with Management;
"6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the demonstration is an
inalienable right of the union guaranteed by the Constitution but
emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the Company. For which
reason, the Company, thru Atty. C.S. de Leon, warned the PBMEO
representatives that workers who belong to the first and regular shifts,
who without previous leave of absence approved by the Company,
particularly the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of
the existing CBA and, therefore, would be amounting to an illegal strike;
"7. That at about 5:00 P.M. on March 3, 1969, another meeting
was convoked. Company represented by Atty. C.S. de Leon, Jr. The
Union panel was composed of: Nicanor Tolentino, Rodolfo Munsod,
Benjamin Pagcu and Florencio Padrigano. In this afternoon meeting of
March 3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the Malacanang
demonstration, the workers for the first and regular shift of March 4,
1969 should be excused from joining the demonstration and should
report for work; and thus utilize the workers in the 2nd and 3rd shifts in
order not to violate the provisions of the CBA, particularly Article XXIV:
'NO LOCKOUT — NO STRIKE'. All those who will not follow this warning
of the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers of
the mass demonstration. The union panel countered that it was rather
too late to change their plans inasmuch as the Malacanang
demonstration will be held the following morning; and
"8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a
cablegram to the Company which was received 9.50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION
MARCH 4, 1969.'" (Pars. 3-8, Annex "F", pp. 42-43, rec.).
Because the petitioners and their members numbering about 400
proceeded with the demonstration despite the pleas of the respondent
Company that the first shift workers should not be required to participate in
the demonstration and that the workers in the second and third shifts should
be utilized for the demonstration from 6 A.M. to 2 P.M. on M[arch 4, 1969,
respondent Company filed on March 4, 1969, with the respondent Court, a
charge against petitioners and other employees who composed the first shift,
charging them with a "violation of Section 4(a)-6 in relation to Sections 13 and
14, as well as Section 15, all of Republic Act No. 875, and of the CBA
providing for 'No Strike and No Lockout.'" (Annex "A", pp. 19-20, rec.). The
charge was accompanied by the joint affidavit of Arthur L. Ang and Cesareo
de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding
complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio
T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.).
In their answer, dated May 9, 1969, herein petitioners claim that they
did not violate the existing CBA because they gave the respondent Company
prior notice of the mass demonstration on March 4, 1969; that the said mass
demonstration was a valid exercise of their constitutional freedom of speech
against the alleged abuses of some Pasig policemen; and that their mass
demonstration was not a declaration of strike because it was not directed
against the respondent firm (Annex "D", pp. 31-34, rec.).
After considering the aforementioned stipulation of facts submitted by
the parties, Judge Joaquin M. Salvador, in an order dated September 15,
1969, found herein petitioner PBMEO guilty of bargaining in bad faith and
herein petitioners Florencio Padrigano, Rufino Roxas Mariano de Leon,
Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino
and Rodulfo Munsod as directly responsible for perpetrating the said unfair
labor practice and were, as a consequence, considered to have lost their
status as employees of the respondent Company (Annex "F", pp. 42-56, rec.).
Herein petitioners claim that they received on September 23, 1969, the
aforesaid order (p. 11, rec.); and that they filed on September 29, 1969,
because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for
reconsideration of said order dated September 15, 1969, on the ground that it
is contrary to law and the evidence, as well as asked for ten (10) days within
which to file their arguments pursuant to Sections 15, 16 and 17 of the Rules
of the CIR, as amended (Annex "G", pp. 57-60, rec.).
In its opposition dated October 7, 1969, filed on October 11, 1969 (p.
63, rec.), respondent Company averred that herein petitioners received on
September 22, 1969, the order dated September 17 (should be September
15), 1969; that under Section 15 of the amended Rules of the Court of
Industrial Relations, herein petitioners had five (5) days from September 22,
1969 or until September 27, 1969, within which to file their motion for
reconsideration; and that because their motion for reconsideration was two (2)
days late, it should be accordingly dismissed, invoking Bien vs.
Castillo, 1 which held among others, that a motion for extension of the five-day
period for the filing of a motion for reconsideration should be filed before the
said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written
arguments dated October 11, 1969, in support of their motion for
reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent Court en
banc dismissed the motion for reconsideration of herein petitioners for
being pro forma as it was filed beyond the reglementary period prescribed by
its Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on
October 28, 1969 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which
was released on October 24, 1969 and addressed to the counsels of the
parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and 17,
as amended, of the Rules of the Court of Industrial Relations, that a motion for
reconsideration shall be filed within five (5) days from receipt of its decision or
order and that an appeal from the decision, resolution or order of the C.I.R.,
sitting en banc, shall be perfected within ten (10) days from receipt thereof (p.
76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court
a petition for relief from the order dated October 9, 1969, on the ground that
their failure to file their motion for reconsideration on time was due to
excusable negligence and honest mistake committed by the president of the
petitioner Union and of the office clerk of their counsel, attaching thereto the
affidavits of the said president and clerk (Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the
order dated October 9, 1969, herein petitioners filed on November 3, 1969,
with the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.).

I
There is need of briefly restating basic concepts and principles which
underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity
and worth of the human personality is the central core as well as the cardinal
article of faith of our civilization. The inviolable character of man as an
individual must be "protected to the largest possible extent in his thoughts and
in his beliefs as the citadel of his person." 2
(2) The Bill of Rights is designed to preserve the ideals of liberty,
equality and security "against the assaults of opportunism, the expediency of
the passing hour, the erosion of small encroachments, and the scorn and
derision of those who have no patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the
Bill of Rights is to withdraw "certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials, and to
establish them as legal principles to be applied by the courts. One's rights to
life, liberty and property, to free speech, or free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections." 4 Laski proclaimed that "the
happiness of the individual, not the well-being of the State, was the criterion
by which its behaviour was to be judged. His interests, not its power, set the
limits to the authority it was entitled to exercise." 5
(3) The freedoms of expression and of assembly as well as the right to
petition are included among the immunities reserved by the sovereign people,
in the rhetorical aphorism of Justice Holmes, to protect the ideas that we
abhor or hate more than the ideas we cherish; or as Socrates insinuated, not
only to protect the minority who want to talk, but also to benefit the majority
who refuse to listen. 6 And as Justice Douglas cogently stresses it, the
liberties of one are the liberties of all; and the liberties of one are not safe
unless the liberties of all are protected. 7
(4) The rights of free expression, free assembly and petition, are not
only civil rights but also political rights essential to man's enjoyment of his life,
to his happiness and to his full and complete fulfillment. Thru these freedoms
the citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of
human rights over property rights is recognized. 8 Because these freedoms
are "delicate and vulnerable, as well as supremely precious in our society"
and the "threat of sanctions may deter their exercise almost as potently as the
actual application of sanctions," they "need breathing space to survive,"
permitting government regulation only "with narrow specificity." 9
Property and property rights can be lost thru prescription; but human
rights are imprescriptible. If human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to limit the power of
government and ceases to be an efficacious shield against the tyranny of
officials, of majorities, of the influential and powerful, and of oligarchs -
political, economic or otherwise.
 In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the preservation
and vitality of our civil and political institutions; 10 and such priority "gives
these liberties the sanctity and the sanction not permitting dubious
intrusions." 11
The superiority of these freedoms over property rights is underscored
by the fact that a mere reasonable or rational relation between the means
employed by the law and its object or purpose — that the law is neither
arbitrary nor discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights. 12 On the other hand, a constitutional
or valid infringement of human rights requires a more stringent criterion,
namely existence of a grave and immediate danger of a substantive evil which
the State has the right to prevent. So it has been stressed in the main opinion
of Mr. Justice Fernando in Gonzales vs. Comelec and reiterated by the writer
of the opinion in Imbong vs. Ferrer. 13 It should be added that Mr. Justice
Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black and
Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of
speech and of the press as well as of peaceful assembly and of petition for
redress of grievances are absolute when directed against public officials or
"when exercised in relation to our right to choose the men and women by
whom we shall be governed," 15 even as Mr. Justice Castro relies on the
balancing-of-interests test. 16 Chief Justice Vinson is partial to the improbable
danger rule formulated by Chief Judge Learned Hand, viz. — whether the
gravity of the evil, discounted by its improbability, justifies such invasion of
free expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the
mass demonstration was not a declaration of strike, concluded that by their
"concerted act and the occurrence of a temporary stoppage of work," herein
petitioners are guilty of bargaining in bad faith and hence violated the
collective bargaining agreement with private respondent Philippine Blooming
Mills Co., Inc. Set against and tested by the foregoing principles governing a
democratic society, such a conclusion cannot be sustained. The
demonstration held by petitioners on March 4, 1969 before Malacanang was
against alleged abuses of some Pasig policemen, not against their employer,
herein private respondent firm, said demonstration was purely and completely
an exercise of their freedom of expression in general and of their right of
assembly and of petition for redress of grievances in particular before the
appropriate governmental agency, the Chief Executive, against the police
officers of the municipality of Pasig. They exercised their civil and political
rights for their mutual aid and protection from what they believe were police
excesses. As a matter of fact, it was the duty of herein private respondent firm
to protect herein petitioner Union and its members from the harassment of
local police officers. It was to the interest of herein private respondent firm to
rally to the defense of, and to take up the cudgels for, its employees, so that
they can report to work free from harassment, vexation or peril and as a
consequence perform more efficiently their respective tasks to enhance its
productivity as well as profits. Herein respondent employer did not even offer
to intercede for its employees with the local police. Was it securing peace for
itself at the expense of its workers? Was it also intimidated by the local police
or did it encourage the local police to terrorize or vex its workers? Its failure to
defend its own employees all the more weakened the position of its
laborers vis-a-vis the alleged oppressive police, who might have been all the
more emboldened thereby to subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression as well as their
right of assembly and of petition against alleged persecution of local
officialdom, the employees and laborers of herein private respondent firm
were fighting for their very survival, utilizing only the weapons afforded them
by the Constitution — the untrammelled enjoyment of their basic human
rights. The pretension of their employer that it would suffer loss or damage by
reason of the absence of its employees from 6 o'clock in the morning to 2
o'clock in the afternoon, is a plea for the preservation merely of their property
rights. Such apprehended loss or damage would not spell the difference
between the life and death of the firm or its owners or its management. The
employees' pathetic situation was a stark reality — abused, harassed and
persecuted as they believed they were by the peace officers of the
municipality. As above intimated, the condition in which the employees found
themselves vis-a-vis the local police of Pasig, was a matter that vitally
affected their right to individual existence as well as that of their families.
Material loss can be repaired or adequately compensated. The debasement
of the human being — broken in morale and brutalized in spirit — can never
be fully evaluated in monetary terms. The wounds fester and the scars remain
to humiliate him to his dying day, even as he cries in anguish for retribution,
denial of which is like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights — freedom of
expression, of peaceful assembly and of petition for redress of grievances —
over property rights has been sustained. 18 Emphatic reiteration of this basic
tenet as a coveted boon — at once the shield and armor of the dignity and
worth of the human personality, the all-consuming ideal of our enlightened
civilization — becomes Our duty, if freedom and social justice have any
meaning at all for him who toils so that capital can produce economic goods
that can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith in collective
bargaining and hence a violation of the collective bargaining agreement and a
cause for the dismissal from employment of the demonstrating employees,
stretches unduly the compass of the collective bargaining agreement, is "a
potent means of inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free expression, of peaceful
assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of
the employees, according to the respondent Court of Industrial Relations, in
effect imposes on the workers the "duty . . . to observe regular working hours."
The strained construction of the Court of Industrial Relations that such
stipulated working shifts deny the workers the right to stage a mass
demonstration against police abuses during working hours, constitutes a
virtual tyranny over the mind and life of the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such
a slender ground.
The mass demonstration staged by the employees on March 4, 1969
could not have been legally enjoined by any court, for such an injunction
would be trenching upon the freedom of expression of the workers, even if it
legally appears to be an illegal picketing or strike. 20 The respondent Court of
Industrial Relations in the case at bar concedes that the mass demonstration
was not a declaration of a strike "as the same is not rooted in any industrial
dispute although there is a concerted act and the occurrence of a temporary
stoppage of work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees
to participate in the demonstration and that they suggested to the Union that
only the first and regular shift from 6 A.M. to 2 P.M. should report for work in
order that loss or damage to the firm will be averted. This stand failed to
appreciate the sine qua non of an effective demonstration especially by a
labor union, namely the complete unity of the Union members as well as their
total presence at the demonstration site in order to generate the maximum
sympathy for the validity of their cause but also immediate action on the part
of the corresponding government agencies with jurisdiction over the issues
they raised against the local police. Circulation is one of the aspects of
freedom of expression. 21 If demonstrators are reduced by one-third, then by
that much the circulation of the issues raised by the demonstration is
diminished. The more the participants, the more persons can be apprised of
the purpose of the rally. Moreover, the absence of one-third of their members
will be regarded as a substantial indication of disunity in their ranks which will
enervate their position and abet continued alleged police persecution. At any
rate, the Union notified the company two days in advance of their projected
demonstration and the company could have made arrangements to
counteract or prevent whatever losses it might sustain by reason of the
absence of its workers for one day, especially in this case when the Union
requested it to excuse only the day-shift employees who will join the
demonstration on March 4, 1969 which request the Union reiterated in their
telegram received by the company at 9:50 in the morning of March 4, 1969,
the day of the mass demonstration (pp. 42-43, rec.). There was a lack of
human understanding or compassion on the part of the firm in rejecting the
request of the Union for excuse from work for the day shifts in order to carry
out its mass demonstration. And to regard as a ground for dismissal the mass
demonstration held against the Pasig police, not against the company, is
gross vindictiveness on the part of the employer, which is as unchristian as it
is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice.
Because the refusal on the part of the respondent firm to permit all its
employees and workers to join the mass demonstration against alleged police
abuses and the subsequent separation of the eight (8) petitioners from the
service constituted an unconstitutional restraint on their freedom of
expression, freedom of assembly and freedom to petition for redress of
grievances, the respondent firm committed an unfair labor practice defined in
Section 4(a-1) in relation to Section 3 of Republic Act No. 875, otherwise
known as the Industrial Peace Act. Section 3 of Republic Act No.
875 guarantees to the employees the right "to engage in concerted activities
for . . . mutual aid or protection"; while Section 4(a-1) regards as an unfair
labor practice for an employer "to interfere with, restrain or coerce employees
in the exercise of their rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged
by the workers of the respondent firm on March 4, 1969, was for their mutual
aid and protection against alleged police abuses, denial of which was
interference with or restraint on the right of the employees to engage in such a
common action to better shield themselves against such alleged police
indignities. The insistence on the part of the respondent firm that the workers
for the morning and regular shifts should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated, "a potent
means of inhibiting speech." 22
Such a concerted action for their mutual help and protection, deserves
at least equal protection as the concerted action of employees in giving
publicity to a letter complaint charging a bank president with immorality,
nepotism, favoritism and discrimination in the appointment and promotion of
bank employees . 23 We further ruled in the Republic Savings Bank case,
supra, that for the employees to come within the protective mantle of Section
3 in relation to Section 4(a-1) of Republic Act No. 875, "it is not necessary that
union activity be involved or that collective bargaining be contemplated," as
long as the concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned
order of respondent Court dated September 15, 1969, the company, "while
expressly acknowledging, that the demonstration is an inalienable right of the
Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal
operation of the company" and "warned the PBMEO representatives that
workers who belong to the first and regular shifts, who without previous leave
of absence approved by the Company, particularly the officers present who
are the organizers of the demonstration, who shall fail to report for work the
following morning (March 4, 1969) shall be dismissed, because such failure is
a violation of the existing CBA and, therefore, would be amounting to an
illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to
coerce the employees from joining the mass demonstration. However, the
issues that the employees raised against the local police, were more
important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen
to them was to lose a day's wage by reason of their absence from work on the
day of the demonstration. One day's pay means much to a laborer, more
especially if he has a family to support. Yet, they were willing to forego their
one-day salary hoping that their demonstration would bring about the desired
relief from police abuses. But management was adamant in refusing to
recognize the superior legitimacy of their right of free speech, free assembly
and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to
demand from the workers proof of the truth of the alleged abuses inflicted on
them by the local police, it thereby concedes that the evidence of such abuses
should properly be submitted to the corresponding authorities having
jurisdiction over their complaint and to whom such complaint may be referred
by the President of the Philippines for proper investigation and action with a
view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations
found that the demonstration "paralyzed to a large extent the operations of the
complainant company," the respondent Court of Industrial Relations did not
make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss
or damage. It did not present evidence as to whether it lost expected profits
for failure to comply with purchase orders on that day; or that penalties were
exacted from it by customers whose orders could not be filled that day of the
demonstration; or that purchase orders were cancelled by the customers by
reason of its failure to deliver the materials ordered; or that its own equipment
or materials or products were damaged due to absence of its workers on
March 4, 1969. On the contrary, the company saved a sizable amount in the
form of wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for
unrealized profits or damages it might have sustained by reason of the
absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and
assembly as well as the right to petition for redress of grievances of the
employees, the dismissal of the eight (8) leaders of the workers for
proceeding with the demonstration and consequently being absent from work,
constitutes a denial of social justice likewise assured by the fundamental law
to these lowly employees. Section 5 of Article II of the Constitution imposes
upon the State "the promotion of social justice to insure the well-being and
economic security of all of the people," which guarantee is emphasized by the
other directive in Section 6 of Article XIV of the Constitution that "the State
shall afford protection to labor . . ." Respondent Court of Industrial Relations
as an agency of the State is under obligation at all times to give meaning and
substance to these constitutional guarantees in favor of the working man; for
otherwise these constitutional safeguards would be merely a lot of
"meaningless constitutional patter." Under the Industrial Peace Act, the Court
of Industrial Relations is enjoined to effect the policy of the law "to eliminate
the causes of industrial unrest by encouraging and protecting the exercise by
employees of their right to self-organization for the purpose of collective
bargaining and for the promotion of their moral, social and economic well-
being." It is most unfortunate in the case at bar that respondent Court of
Industrial Relations, the very governmental agency designed therefor, failed to
implement this policy and failed to keep faith with its avowed mission —
its raison d'etre — as ordained and directed by the Constitution.

V
It has been likewise established that a violation of a constitutional right
divests the court of jurisdiction; and as a consequence its judgment is null and
void and confers no rights. Relief from a criminal conviction secured at the
sacrifice of constitutional liberties, may be obtained through habeas corpus
proceedings even long after the finality of the judgment. Thus, habeas corpus
is the remedy to obtain the release of an individual, who is convicted by final
judgment through a forced confession, which violated his constitutional right
against self-incrimination; 25 or who is denied the right to present evidence in
his defense as a deprivation of his liberty without due process of law, 27
 Both the respondents Court of Industrial Relations and private firm
trenched upon these constitutional immunities of petitioners. Both failed to
accord preference to such rights and aggravated the inhumanity to which the
aggrieved workers claimed they had been subjected by the municipal police.
Having violated these basic human rights of the laborers, the Court of
Industrial Relations ousted itself of jurisdiction and the questioned orders it
issued in the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the courts 28 as well as
private citizens and corporations, the exercise and enjoyment of which must
not be nullified by a mere procedural rule promulgated by the Court of
Industrial Relations exercising a purely delegated legislative power, when
even a law enacted by Congress must yield to the untrammelled enjoyment of
these human rights. There is no time limit to the exercise of these freedoms.
The right to enjoy them is not exhausted by the delivery of one speech, the
printing of one article or the staging of one demonstration. It is a continuing
immunity, to be invoked and exercised when exigent and expedient whenever
there are errors to be rectified, abuses to be denounced, inhumanities to be
condemned. Otherwise, these guarantees in the Bill of Rights would be
vitiated by a rule on procedure prescribing the period for appeal. The battle
then would be reduced to a race for time. And in such a contest between an
employer and its laborer, the latter eventually loses because he cannot
employ the best and dedicated counsel who can defend his interest with the
required diligence and zeal, bereft as he is of the financial resources with
which to pay for competent legal services. 28
VI
The Court of Industrial Relations rule prescribes that a motion for
reconsideration of its order or writ should be filed within five (5) days from
notice thereof and that the arguments in support of said motion shall be filed
within ten (10) days from the date of filing of such motion for reconsideration
(Sec. 16). As above intimated, these rules of procedure were promulgated by
the Court of Industrial Relations pursuant to a legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or
seven (7) days from notice on September 22, 1969 of the order dated
September 15, 1969 or two (2) days late. Petitioners claim that they could
have filed it on September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2)
days late defeat the rights of the petitioning employees? Or more directly and
concretely, does the inadvertent omission to comply with a mere Court of
Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a
legislative delegation, prevail over constitutional rights? The answer should be
obvious in the light of the aforecited cases. To accord supremacy to the
foregoing rules of the Court of Industrial Relations over basic human rights
sheltered by the Constitution, is not only incompatible with the basic tenet of
constitutional government that the Constitution is superior to any statute or
subordinate rules and regulations, but also does violence to natural reason
and logic. The dominance and superiority of the constitutional right over the
aforesaid Court of Industrial Relations procedural rule of necessity should be
affirmed. Such a Court of Industrial Relations rule as applied in this case does
not implement or reinforce or strengthen the constitutional rights affected, but
instead constrict the same to the point of nullifying the enjoyment thereof by
the petitioning employees. Said Court of Industrial Relations rule, promulgated
as it was pursuant to a mere legislative delegation, is unreasonable and
therefore is beyond the authority granted by the Constitution and the law. A
period of five (5) days within which to file a motion for reconsideration is too
short, especially for the aggrieved workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of
Appeals and the Supreme Court, a period of fifteen (15) days has been fixed
for the filing of the motion for re hearing or reconsideration (Sec. 10, Rule 51;
Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the
filing of the motion for reconsideration could have been only one day if
September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial Relations rule insofar as
circumstances of the instant case are concerned.
It should be stressed here that the motion for reconsideration dated
September 27, 1969, is based on the ground that the order sought to be
reconsidered "is not in accordance with law, evidence and facts adduced
during the hearing," and likewise prays for an extension of ten (10) days within
which to file arguments pursuant to Sections 15, 16 and 11 of the Rules of the
Court of Industrial Relations (Annex "G", pp. 57-60, rec.); although the
arguments were actually filed by the herein petitioners on October 14, 1969
(Annex "I", pp. 70-73, rec.), long after the 10 day period required for the filing
of such supporting arguments counted from the filing of the motion for
reconsideration. Herein petitioners received only on October 28, 1969 the
resolution dated October 9, 1969 dismissing the motion for reconsideration for
being pro forma since it was filed beyond the reglementary period (Annex "J",
pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to
reconsider is filed out of time, or where the arguments in suppf of such motion
are filed beyond the 10 day reglementary period provided for by the Court of
Industrial Relations rules, the order or decision subject of reconsideration
becomes final and unappealable. 29 But in all these cases, the constitutional
rights of free expression, free assembly and petition were not involved.
 It is a procedural rule that generally all causes of action and defenses
presently available must be specifically raised in the complaint or answer; so
that any cause of action or defense not raised in such pleadings, is deemed
waived. However, a constitutional issue can be raised any time, even for the
first time on appeal, if it appears that the determination of the constitutional
issue is necessary to a decision of the case, the very lis mota of the case
without the resolution of which no final and complete determination of the
dispute can be made. 30 It is thus seen that a procedural rule of Congress or
of the Supreme Court gives way to a constitutional right. In the instant case,
the procedural rule of the Court of Industrial Relations, a creature of
Congress, must likewise yield to the constitutional rights invoked by herein
petitioners even before the institution of the unfair labor practice charged
against them and in their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms
sheltered no less by the organic law, is a most compelling reason to deny
application of a Court of Industrial Relations rule which impinges on such
human rights. 30
It is an accepted principle that the Supreme Court has the inherent
power to "suspend its own rules or to except a particular case from its
operation, whenever the purposes of justice require." 30 Mr. Justice Barredo in
his concurring opinion in Estrada vs. Sto. Domingo 30 reiterated this principle
and added that
"Under this authority, this Court is enabled to cope with all
situations without concerning itself about procedural niceties that do not
square with the need to do justice, in any case, without further loss of
time, provided that the right of the parties to a full day in court is not
substantially impaired. Thus, this Court may treat an appeal as a
certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly
heard, it matters little that the error of the court a quo is of judgment or of
jurisdiction. We can then and there render the appropriate judgment. It is
within the contemplation of this doctrine that as it is perfectly legal and
within the power of this Court to strike down in an appeal acts without or
in excess of jurisdiction or committed with grave abuse of discretion, it
cannot be beyond the ambit of its authority, in appropriate cases, to
reverse in a certain proceeding any error of judgment of a court a quo
which cannot be exactly categorized as a flow of jurisdiction. If there can
be any doubt, which I do not entertain, on whether or not the errors this
Court has found in the decision of the Court of Appeals are short of
being jurisdictional nullities or excesses, this Court would still be on firm
legal grounds should it choose to reverse said decision here and
now even if such errors can be considered as mere mistakes of
judgment or only as faults in the exercise of jurisdiction, so as to avoid
 the unnecessary return of this case to the lower courts for the sole
purpose of pursuing the ordinary course of an appeal." (Italics
supplied.) 30
Insistence on the application of the questioned Court of Industrial
Relations rule in this particular case at bar would be an unreasoning
adherence to "procedural niceties," which denies justice to the herein
laborers, whose basic human freedoms, including the right to survive, must be
accorded supremacy over the property rights of their employer firm, which has
been given a full hearing on this case, especially when, as in the case at
bar, no actual material damage has been demonstrated as having been
inflicted on its property rights.
If We can disregard our own rules when justice requires it, obedience
to the Constitution renders more imperative the suspension of a Court of
Industrial Relations rule that clashes with the human rights sanctioned and
shielded with resolute concern by the specific guarantees outlined in the
organic law. It should be stressed that the application in the instant case of
Section 15 of the Court of Industrial Relations rules relied upon by herein
respondent firm, is unreasonable and therefore such application becomes
unconstitutional as it subverts the human rights of petitioning labor union and
workers in the light of the peculiar facts and circumstances revealed by the
record.
The suspension of the application of Section 15 of the Court of
Industrial Relations rules with reference to the case at bar, is also authorized
by Section 20 of Commonwealth Act No. 103, the C.I.R. charter, which
enjoins the Court of Industrial Relations to "act according to justice and equity
and substantial merits of the case, without regard to technicalities or legal
forms . . ."
On several occasions, We emphasized this doctrine which was re-
stated by Mr. Justice Barredo, speaking for the Court, in the 1970 case of
Kapisanan, etc. vs. Hamilton, etc., et. al., 30 thus:
"As to the point that the evidence being offered by the petitioners
in the motion for new trial is not 'newly discovered,' as such term is
understood in the rules of procedure for the ordinary courts, We hold that
such criterion is not binding upon the Court of Industrial Relations. Under
Section 20 of Commonwealth Act No. 103, 'The Court of Industrial
Relations shall adopt its. rules or procedure and shall have such other
powers as generally pertain to a court of justice: Provided, however,
That in the hearing, investigation and determination of any question or
controversy and in exercising any duties and power under this Act, the
Court shall act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall not be
bound by any technical rules of legal evidence but may inform its mind in
 such manner as it may deem just and equitable.' By this provision, the
industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to the
specific relief demanded by the parties but may issue such orders as
may be deemed necessary or expedient for the purpose of settling the
dispute or dispelling any doubts that may give rise to future disputes.
(Ang Tibay v. C.I.R., G.R., No. 46496, Feb. 17, 1940; Manila Trading &
Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We believe
that this provision is ample enough to have enabled the respondent court
to consider whether or not its previous ruling that petitioners constitute a
minority was founded on fact, without regard to the technical meaning of
newly discovered evidence. . . . (Alonso v. Villamor, 16 Phil. 315; Chua
Kiong v. Whitaker, 46 Phil. 578)." (italics supplied.)
To apply Section 15 of the Court of Industrial Relations rules with
"pedantic rigor" in the instant case is to rule in effect that the poor workers,
who can ill-afford an alert and competent lawyer, can no longer seek the
sanctuary of the human freedoms secured to them by the fundamental law,
simply because their counsel — erroneously believing that he received a copy
of the decision on September 23, 1969, instead of September 22, 1969 —
filed his motion for reconsideration on September 29, 1969, which practically
is only one day late, considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedural technicalities when
they ceased to be instruments of justice, for the attainment of which such
rules have been devised. Summarizing the jurisprudence on this score, Mr.
Justice Fernando, speaking for a unanimous Court in Palma vs.
Oreta, 30 stated:
"As was so aptly expressed by Justice Moreland in Alonso v.
Villamor (16 Phil. 315 [1910]. The Villamor decision was cited with
approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949];
Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy, L-
14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
'technicality, when it deserts its proper office as an aid to justice and
becomes its great hindrance and chief enemy, deserves scant
consideration from courts.' (Ibid., p, 322.) To that norm, this Court has
remained committed. The late Justice Recto in Blanco v. Bernabe, (63
Phil. 124 [1936]) was of a similar mind. For him the interpretation of
procedural rule should never 'sacrifice the ends of justice.' While
'procedural laws are no other than technicalities' to view them in their
entirety, 'they were adopted not as ends in themselves for the
compliance with which courts have been organized and function, but as
means conducive to the realization of the administration of the law and
of justice. (Ibid., p. 128). We have remained steadfastly opposed, in the
highly rhetorical language of Justice Felix, to 'a sacrifice of substantial
rights of a litigant in the altar of sophisticated technicalities with
 impairment of the sacred principles of justice.' (Potenciano v. Court of
Appeals, 104 Phil. 156, 161 [1958]). As succinctly put by Justice
Makalintal, they 'should give way to the realities of the situation.'
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the
latest decision in point, promulgated in 1968, (Udan v. Amon, L-24288,
1968, 23 SCRA 837 citing McEntee v. Manotok, L-14968, Oct. 27, 1961,
3 SCRA 272.) Justice Zaldivar was partial to an earlier formulation of
Justice Labrador that rules of procedure 'are not to be applied in a very
rigid, technical sense'; but are intended 'to help secure substantial
justice.' (Ibid., p. 843) . . ." 30
Even if the questioned Court of Industrial Relations orders and rule
were to be given effect, the dismissal or termination of the employment of the
petitioning eight (8) leaders of the Union is harsh for a one-day absence from
work. The respondent Court itself recognized the severity of such a sanction
when it did not include the dismissal of the other 393 employees who are
members of the same Union and who participated in the demonstration
against the Pasig police. As a matter of fact, upon the intercession of the
Secretary of Labor, the Union members who are not officers, were not
dismissed, and only the Union itself and its thirteen (13) officers were
specifically named as respondents in the unfair labor practice charge filed
against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and
"C", pp. 20-30, rec.). Counsel for respondent firm insinuates that not all the
400 or so employees participated in the demonstration, for which reason only
the Union and its thirteen (13) officers were specifically named in the unfair
labor practice charge (p. 20, respondent's brief). If that were so, then many, if
not all, of the morning and regular shifts reported for work on March 4, 1969
and that, as a consequence, the firm continued in operation that day and did
not sustain any damage.
The appropriate penalty — if it deserves any penalty at all — should
have been simply to charge said one-day absence against their vacation or
sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a
most cruel penalty, since as aforestated the Union leaders depend on their
wages for their daily sustenance as well as that of their respective families
aside from the fact that it is a lethal blow to unionism, while at the same time
strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
"The challenge to our liberties comes frequently not from those
who consciously seek to destroy our system of government, but from
men of goodwill — good men who allow their proper concerns to blind
them to the fact that what they propose to accomplish involves an
impairment of liberty.
 ". . . The Motives of these men are often commendable. What we
must remember, however, is that preservation of liberties does not
depend on motives. A suppression of liberty has the same effect whether
the suppressor be a reformer or an outlaw. The only protection against
misguided zeal is constant alertness of the infractions of the guarantees
of liberty contained in our Constitution. Each surrender of liberty to the
demands of the moment makes easier another, larger surrender. The
battle over the Bill of Rights is a never ending one.
". . . The liberties of any person are the liberties of all of us.
". . . In short, the Liberties of none are safe unless the liberties of
all are protected.
". . . But even if we should sense no danger to our own liberties,
even if we feel secure because we belong to a group that is important
and respected, we must recognize that our Bill of Rights is a code of fair
play for the less fortunate that we in all honor and good conscience must
be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but
a complete lack of sympathetic understanding of the plight of its laborers who
claim that they are being subjected to indignities by the local police. It was
more expedient for the firm to conserve its income or profits than to assist its
employees in their fight for their freedoms and security against alleged petty
tyrannies of local police officers. This is sheer opportunism. Such opportunism
and expediency resorted to by the respondent company assaulted the
immunities and welfare of its employees. It was pure and simple selfishness, if
not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs.
C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for having
written and published "a patently libelous letter . . . to the Bank president
demanding his resignation on the grounds of immorality, nepotism in the
appointment and favoritism as well as discrimination in the promotion of bank
employees." Therein, thru Mr. Justice Castro, We ruled:
"It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their individual capacities
when they wrote the letter-charge they were nonetheless protected for
they were engaged in concerted activity, in the exercise of their right of
self organization that includes concerted activity for mutual aid and
protection, (Section 3 of the Industrial Peace Act . . .). This is the view of
some members of this Court. For, as has been aptly stated, the joining
in protests or demands, even by a small group of employees, if in
furtherance of their interests as such, is a concerted activity protected by
the Industrial Peace Act. It is not necessary that union activity be
 involved or that collective bargaining be contemplated. (Annot., 6 A.L.R.
2d 416 [1949]).
xxx xxx xxx
"Instead of stifling criticism, the Bank should have allowed the
respondents to air their grievances.
xxx xxx xxx
"The Bank defends its action by invoking its right to discipline for
what it calls the respondents' libel in giving undue publicity to their letter-
charge. To be sure, the right of self-organization of employees is not
unlimited (Republic Aviation Corp. vs. NLRB, 324 U.S. 793 [1945]), as
the right of the employer to discharge for cause (Philippine Education
Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
undenied. The Industrial Peace Act does not touch the normal exercise
of the right of the employer to select his employees or to discharge them.
it is directed solely against the abuse of that right by interfering with the
countervailing right of self organization (Phelps Dodge Corp. v. NLRB,
313 U.S. 177 [1941]). . . .
xxx xxx xxx
"In the final sum and substance, this Court is in unanimity that the
Bank's conduct, identified as an interference with the employees' right of
self-organization, or as a retaliatory action, and/or as a refusal to bargain
collectively, constituted an unfair labor practice within the meaning and
intendment of section 4(a) of the Industrial Peace Act." (Italics
supplied.) 33
If free expression was accorded recognition and protection to fortify
labor unionism in the Republic Savings case, supra, where the complaint
assailed the morality and integrity of the bank president no less, such
recognition and protection for free speech, free assembly and right to petition
are rendered all the more justifiable and more imperative in the case at bar,
where the mass demonstration was not against the company nor any of its
officers.
WHEREFORE, judgment is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of
Industrial Relations dated September 15 and October 9, 1969; and
(2) directing the re instatement of the herein eight (8) petitioners, with
full back pay from the date of their separation from the service until reinstated,
minus one day's pay and whatever earnings they might have realized from
other sources during their separation from the service.
With costs against private respondent Philippine Blooming Company,
Inc.
 (Phil. Blooming Mills Employees Organization v. Phil. Blooming Mills Co., Inc.,
|||

G.R. No. L-31195, [June 5, 1973], 151-A PHIL 656-719)

Bayan vs. Ermita [G.R. No. 169838, April 25, 2006]

[G.R. No. 169838. April 25, 2006.]

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG

PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima
Tajar, petitioners, vs. EDUARDO ERMITA, in his capacity as
Executive Secretary, Manila City Mayor LITO ATIENZA, Chief
of the Philippine National Police, Gen. ARTURO M. LOMIBAO,
NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police
District Chief Gen. PEDRO BULAONG, respondents.

[G.R. No. 169848. April 25, 2006.]

JESS DEL PRADO, WILSON FORTALEZA, LEODY DE

GUZMAN, PEDRO PINLAC, CARMELITA MORANTE, RASTI
DELIZO, PAUL BANGAY, MARIE JO OCAMPO, LILIA DELA
CRUZ, CRISTETA RAMOS, ADELAIDA RAMOS, MARY GRACE
GONZALES, MICHAEL TORRES, RENDO SABUSAP,
PRECIOUS BALUTE, ROXANNE MAGBOO, ERNIE BAUTISTA,
JOSEPH DE JESUS, MARGARITA ESCOBER, DJOANNALYN
JANIER, MAGDALENA SELLOTE, MANNY QUIAZON,
ERICSON DIZON, NENITA CRUZAT, LEONARDO DE LOS
REYES, PEDRITO FADRIGON, petitioners, vs.
EDUARDO ERMITA, in his official capacity as The Executive
Secretary and in his personal capacity, ANGELO REYES, in
his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as
the Chief, Philippine National Police, VIDAL QUEROL, in his
official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as
the Chief, Manila Police District (MPD) AND ALL OTHER
PUBLIC OFFICERS AND PRIVATE INDIVIDUALS ACTING
UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, respondents.

[G.R. No. 169881. April 25, 2006.]

 KILUSANG MAYO UNO, represented by its Chairperson
ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU), represented by its National
President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN, petitioners, vs. THE
HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR
GENERAL ARTURO LOMIBAO, HONORABLE MAYOR LITO
ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, respondents.

DECISION

AZCUNA, J : p

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838, 1 allege that
they are citizens and taxpayers of the Philippines and that their rights as
organizations and individuals were violated when the rally they participated in
on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado,
et al., in G.R. No. 169848, 2 who allege that they were injured, arrested and
detained when a peaceful mass action they held on September 26, 2005 was
preempted and violently dispersed by the police. They further assert that on
October 5, 2005, a group they participated in marched to Malacañang to
protest issuances of the Palace which, they claim, put the country under an
"undeclared" martial rule, and the protest was likewise dispersed violently and
many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners
in G.R. No. 169881, 3 allege that they conduct peaceful mass actions and that
their rights as organizations and those of their individual members as citizens,
specifically the right to peaceful assembly, are affected by Batas
Pambansa No. 880 and the policy of "Calibrated Preemptive Response"
(CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored
was to be conducted at the Mendiola bridge but police blocked them along
C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries
to several of their members. They further allege that on October 6, 2005, a
multi-sectoral rally which KMU also co-sponsored was scheduled to proceed
along España Avenue in front of the University of Santo Tomas and going
towards Mendiola bridge. Police officers blocked them along Morayta Street
and prevented them from proceeding further. They were then forcibly
dispersed, causing injuries on one of them. 4 Three other rallyists were
arrested.
All petitioners assail Batas Pambansa No. 880, some of them in
toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the
policy of CPR. They seek to stop violent dispersals of rallies under the
"no permit, no rally" policy and the CPR policy recently announced. CTEaDc

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF
THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION
THE GOVERNMENT [AND] FOR OTHER PURPOSES
Be it enacted by the Batasang Pambansa in session assembled:
SECTION 1. Title . — This Act shall be known as "The Public
Assembly Act of 1985."
SEC. 2. Declaration of policy. — The constitutional right of the
people peaceably to assemble and petition the government for redress
of grievances is essential and vital to the strength and stability of the
State. To this end, the State shall ensure the free exercise of such right
without prejudice to the rights of others to life, liberty and equal
protection of the law.
SEC. 3. Definition of terms. — For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in
a public place for the purpose of presenting a lawful cause; or
expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic
or social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public
meetings and assemblages for religious purposes shall be governed by
local ordinances; Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and
other concerted action in strike areas by workers and employees
resulting from a labor dispute as defined by the Labor Code, its
implementing rules and regulations, and by the Batas Pambansa Bilang
227.
(b) "Public place" shall include any highway, boulevard, avenue,
road, street, bridge or other thoroughfare, park, plaza square, and/or any
open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint
that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
(d )"Modification of a permit" shall include the change of the place
and time of the public assembly, rerouting of the parade or street march,
the volume of loud-speakers or sound system and similar changes.
SEC. 4. Permit when required and when not required. — A written
permit shall be required for any person or persons to organize and hold
a public assembly in a public place. However, no permit shall be
required if the public assembly shall be done or made in a freedom park
duly established by law or ordinance or in private property, in which case
only the consent of the owner or the one entitled to its legal possession
is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations
of said educational institution. Political meetings or rallies held during
any election campaign period as provided for by law are not covered by
this Act.
SEC. 5. Application requirements. — All applications for a permit
shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the
names of the leaders or organizers; the purpose of such public
assembly; the date, time and duration thereof, and place or streets to be
used for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be
used. HECaTD

(b) The application shall incorporate the duty and responsibility of

applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the
city or municipality in whose jurisdiction the intended activity is to be
held, at least five (5) working days before the scheduled public
assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal mayor shall
cause the same to immediately be posted at a conspicuous place in the
city or municipal building.
SEC. 6. Action to be taken on the application. —
 (a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present danger
to public order, public safety, public convenience, public morals or public
health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application was
filed, failing which, the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant
on the premises of the office of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or modification of the
permit, he shall immediately inform the applicant who must be heard on
the matter.
(d) The action on the permit shall be in writing and served on the
applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant may
contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial
Court, or the Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after
receipt of the same. No appeal bond and record on appeal shall be
required. A decision granting such permit or modifying if in terms
satisfactory to the applicant shall be immediately executory.

(g) All cases filed in court under this section shall be decided
within twenty-four (24) hours from date of filing. Cases filed hereunder
shall be immediately endorsed to the executive judge for disposition or,
in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are
hereby allowed.
SEC. 7. Use of Public throroughfare. — Should the proposed
public assembly involve the use, for an appreciable length of time, of any
public highway, boulevard, avenue, road or street, the mayor or any
official acting in his behalf may, to prevent grave public inconvenience,
designate the route thereof which is convenient to the participants or
reroute the vehicular traffic to another direction so that there will
be no serious or undue interference with the free flow of commerce and
trade.TAcDHS

SEC. 8. Responsibility of applicant. — It shall be the duty and

responsibility of the leaders and organizers of a public assembly to take
all reasonable measures and steps to the end that the intended public
assembly shall be conducted peacefully in accordance with the terms of
the permit. These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the
permit;
(b) To police the ranks of the demonstrators in order to prevent
non-demonstrators from disrupting the lawful activities of the public
assembly;
(c) To confer with local government officials concerned and law
enforcers to the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go
beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any
person or do any act unduly interfering with the rights of other persons
not participating in the public assembly.
SEC. 9. Non-interference by law enforcement authorities. — Law
enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred
(100) meters away from the area of activity ready to maintain peace and
order at all times.
SEC. 10. Police assistance when requested. — It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of
expression is primordial. Towards this end, law enforcement agencies
shall observe the following guidelines:
(a )Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and
units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;
 (b) The members of the law enforcement contingent shall not
carry any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high shoes
with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-
riot device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate destruction of
property.
Sec. 11. Dispersal of public assembly with permit. — No public
assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as
follows:
(a) At the first sign of impending violence, the ranking officer of
the law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public assembly will be
dispersed; CSHcDT

(c) If the violence or disturbance prevailing as stated in the

preceding subparagraph should not stop or abate, the ranking officer of
the law enforcement contingent shall audibly issue a warning to the
participants of the public assembly, and after allowing a reasonable
period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the assembly
a law, statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace
during the public assembly may be peacefully dispersed.
SEC. 12. Dispersal of public assembly without permit. — When
the public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.
SEC. 13. Prohibited acts. — The following shall constitute
violations of the Act:
(a) The holding of any public assembly as defined in this Act by
any leader or organizer without having first secured that written permit
where a permit is required from the office concerned, or the use of such
permit for such purposes in any place other than those set out in said
permit: Provided, however, That no person can be punished or held
criminally liable for participating in or attending an otherwise peaceful
assembly;
(b) Arbitrary and unjustified denial or modification of a permit in
violation of the provisions of this Act by the mayor or any other official
acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge
receipt of the application for a permit by the mayor or any official acting
in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred
(100) meters from the area of activity of the public assembly or on the
occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as
firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or
thoroughfares;
4. the carrying of firearms by members of the law enforcement
unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns
and loud sound systems.
SEC. 14. Penalties. — Any person found guilty and convicted of
any of the prohibited acts defined in the immediately preceding section
shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by
imprisonment of one month and one day to six months; ECDaTI

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4,
subparagraph (g) shall be punished by imprisonment of six months and
one day to six years;
 (c) violation of item 1, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years without prejudice to
prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall
be punished by imprisonment of one day to thirty days.
SEC. 15. Freedom parks. — Every city and municipality in the
country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within
the poblacion where demonstrations and meetings may be held at any
time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the period of
six months from the effectivity this Act.
SEC. 16. Constitutionality. — Should any provision of this Act be
declared invalid or unconstitutional, the validity or constitutionality of the
other provisions shall not be affected thereby.
SEC. 17. Repealing clause. — All laws, decrees, letters of
instructions, resolutions, orders, ordinances or parts thereof which are
inconsistent with the provisions of this Act are hereby repealed,
amended, or modified accordingly.
SEC. 18. Effectivity. — This Act shall take effect upon its
approval.
Malacañang Official
Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY
EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-
government groups to inflame the political situation, sow disorder and
incite people against the duty constituted authorities, we have instructed
the PNP as well as the local government units to strictly enforce a
"no permit, no rally" policy, disperse groups that run afoul of this
standard and arrest all persons violating the laws of the land as well as
ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu
of maximum tolerance. The authorities will not stand aside while those
with ill intent are herding a witting or unwitting mass of people and
 inciting them into actions that are inimical to public order, and the peace
of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-
abiding citizens have the right to be protected by a vigilant and proactive
government.
We appeal to the detractors of the government to engage in lawful
and peaceful conduct befitting of a democratic society. EcHTCD

The President's call for unity and reconciliation stands, based on

the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is
clearly a violation of the Constitution and the International Covenant on Civil
and Political Rights and other human rights treaties of which the Philippines is
a signatory. 5
They argue that B.P. No. 880 requires a permit before one can stage a
public assembly regardless of the presence or absence of a clear and present
danger. It also curtails the choice of venue and is thus repugnant to the
freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought. Furthermore, it is not
content-neutral as it does not apply to mass actions in support of the
government. The words "lawful cause," "opinion," "protesting or influencing"
suggest the exposition of some cause not espoused by the government. Also,
the phrase "maximum tolerance" shows that the law applies to assemblies
against the government because they are being tolerated. As a content-based
legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully assemble and
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions
are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing
clear standards. The two standards stated in the laws (clear and present
danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that
alters the standard of maximum tolerance set forth in B.P. No. 880, aside from
being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits
on the right to assembly and therefore B.P. No. 880 cannot put the prior
requirement of securing a permit. And even assuming that the legislature can
set limits to this right, the limits provided are unreasonable: First, allowing the
Mayor to deny the permit on clear and convincing evidence of a clear and
present danger is too comprehensive. Second, the five-day requirement to
apply for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the
government takes action even before the rallyists can perform their act, and
that no law, ordinance or executive order supports the policy. Furthermore, it
contravenes the maximum tolerance policy of B.P. No. 880 and violates
the Constitution as it causes a chilling effect on the exercise by the people of
the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National
Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District
(MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive
Secretary and in his personal capacity; Angelo Reyes, as Secretary of the
Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as
Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers
and private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive
Secretary, PNP Director General Arturo Lomibao, the Honorable Mayor
Joselito Atienza, and PNP MPD Chief Pedro Bulaong. CAcEaS

Respondents argue that:

1. Petitioners have no standing because they have not presented
evidence that they had been "injured, arrested or detained because of the
CPR," and that "those arrested stand to be charged with violating Batas
Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot
honestly claim that the time, place and manner regulation embodied
in B.P. No. 880 violates the three-pronged test for such a measure, to wit:
(a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of
regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a
means that is less intrusive of free speech interests; and (c) B.P. No.
880 leaves open alternative channels for communication of the information. 6
3. B.P. No. 880 is content-neutral as seen from the text of the law.
Section 5 requires the statement of the public assembly's time, place and
manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce
and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rally's program content or the statements of the
speakers therein, except under the constitutional precept of the "clear and
present danger test." The status of B.P. No. 880 as a content-neutral
regulation has been recognized in Osmeña v. Comelec. 7
4. Adiong v. Comelec 8 held that B.P. No. 880 is a content-neutral
regulation of the time, place and manner of holding public assemblies and the
law passes the test for such regulation, namely, these regulations need only a
substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court 9 held that a local chief
executive has the authority to exercise police power to meet "the demands of
the common good in terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly circumscribed by
Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and
convincing evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public morals or
public health" and "imminent and grave danger of a substantive evil" both
express the meaning of the "clear and present danger test." 10
7. CPR is simply the responsible and judicious use of means allowed by
existing laws and ordinances to protect public interest and restore public
order. Thus, it is not accurate to call it a new rule but rather it is a more pro-
active and dynamic enforcement of existing laws, regulations and ordinances
to prevent chaos in the streets. It does not replace the rule of maximum
tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his
Comment that the petition in G.R. No. 169838 should be dismissed on the
ground that Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the
"clear and present danger" rule as there was a clamor to stop rallies that
disrupt the economy and to protect the lives of other people; that J. B.
L. Reyes v. Bagatsing, 11 Primicias v. Fugoso, 12 and Jacinto v. CA, 13 have
affirmed the constitutionality of requiring a permit; that the permit is for the use
of a public place and not for the exercise of rights; and that B.P. No. 880 is not
a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After
the submission of all the Comments, the Court set the cases for oral
arguments on April 4, 2006, 14 stating the principal issues, as follows:
 1. On the constitutionality of Batas Pambansa No. 880, specifically
Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No.
7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint? ATCaDE

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the
Universal Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated
Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September
26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments
took place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions,
withdrew the portions of their petitions raising factual issues, particularly those
raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the
rallies of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief
Justice that CPR should no longer be used as a legal term inasmuch as,
according to respondents, it was merely a "catchword" intended to clarify what
was thought to be a misunderstanding of the maximum tolerance policy set
forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive
Secretary Eduardo Ermita and submitted to the Ombudsman, it does not
replace B.P. No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into
account the foregoing developments.
Petitioners' standing cannot be seriously challenged. Their right as
citizens to engage in peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No. 880 which
requires a permit for all who would publicly assemble in the nation's streets
and parks. They have, in fact, purposely engaged in public assemblies without
the required permits to press their claim that no such permit can be validly
required without violating the Constitutional guarantee. Respondents, on the
 other hand, have challenged such action as contrary to law and dispersed the
public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
SEC. 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition
for redress of grievances is, together with freedom of speech, of expression, and
of the press, a right that enjoys primacy in the realm of constitutional protection.
For these rights constitute the very basis of a functional democratic polity, without
which all the other rights would be meaningless and unprotected. As stated
in Jacinto v. CA, 15 the Court, as early as the onset of this century, in U.S. v.
Apurado, 16 already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners' rights to peaceful
assembly to petition the government for a redress of grievances and, for
that matter, to organize or form associations for purposes not contrary to
law, as well as to engage in peaceful concerted activities. These rights
are guaranteed by no less than the Constitution, particularly Sections 4
and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of
Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people's exercise of these rights. As early
as the onset of this century, this Court in U.S. vs. Apurado, already
upheld the right to assembly and petition and even went as far as to
acknowledge:
"It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real
or imaginary, because on such occasions feeling is always wrought to a
high pitch of excitement, and the greater, the grievance and the more
intense the feeling, the less perfect, as a rule will be the disciplinary
control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly
conduct by individual members of a crowd as an excuse to characterize
the assembly as a seditious and tumultuous rising against the
authorities, then the right to assemble and to petition for redress of
grievances would expose all those who took part therein to the severest
and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising."
 Again, in Primicias v. Fugoso, 17 the Court likewise sustained the primacy
of freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks. cIDHSC

Next, however, it must be remembered that the right, while sacrosanct, is

not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by
the constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the exercise
of those rights is not absolute for it may be so regulated that it shall not
be injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate
the exercise of such and other constitutional rights is termed the
sovereign "police power," which is the power to prescribe regulations, to
promote the health, morals, peace, education, good order or safety, and
general welfare of the people. This sovereign police power is exercised
by the government through its legislative branch by the enactment of
laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and
cities by authorizing their legislative bodies called municipal and city
councils enact ordinances for purpose. 18
Reyes v. Bagatsing 19 further expounded on the right and its limits, as
follows:
1. It is thus clear that the Court is called upon to protect the
exercise of the cognate rights to free speech and peaceful assembly,
arising from the denial of a permit. The Constitution is quite explicit:
"No law shall be passed abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like free press,
may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or punishment. There is to
be then no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings unless there be a "clear
and present danger of a substantive evil that [the State] has a right
to prevent." Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect.
It is not to be limited, much less denied, except on a showing, as is the
case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to the
1935 Constitution, Justice Malcolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements
the right of free speech. To paraphrase the opinion of Justice Rutledge,
speaking for the majority of the American Supreme Court in Thomas v.
Collins, it was not by accident or coincidence that the rights to freedom
of speech and of the press were coupled in a single guarantee with the
right of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not
identical, are inseparable. In every case, therefore, where there is a
limitation placed on the exercise of this right, the judiciary is called upon
to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the danger,
of a character both grave and imminent, of a serious evil to public safety,
public morals, public health, or any other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of
expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be
forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power
of an appeal to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due to restrictions
upon rational modes of communication that the guaranty of free speech
was given a generous scope. But utterance in a context of violence can
lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by
the Constitution." What was rightfully stressed is the abandonment of
reason, the utterance, whether verbal or printed, being in a context of
violence. It must always be remembered that this right likewise provides
for a safety valve, allowing parties the opportunity to give vent to their
views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason
for the expression of dissent. It means more than just the right to be
heard of the person who feels aggrieved or who is dissatisfied with
things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true
ferment of ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in
the name of protest, much less preach rebellion under the cloak of
dissent. The Constitution frowns on disorder or tumult attending a rally or
assembly. Resort to force is ruled out and outbreaks of violence to be
avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v.
Apurado: "It is rather to be expected that more or less disorder will mark
the public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always wrought
to a high pitch of excitement, and the greater the grievance and the more
intense the feeling, the less perfect, as a rule, will be the disciplinary
control of the leaders over their irresponsible followers." It bears
repeating that for the constitutional right to be invoked, riotous conduct,
injury to property, and acts of vandalism must be avoided. To give free
rein to one's destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in our scheme
of values. ICHAaT

There can be no legal objection, absent the existence of a clear

and present danger of a substantive evil, on the choice of Luneta as the
place where the peace rally would start. The Philippines is committed to
the view expressed in the plurality opinion, of 1939 vintage of, Justice
Roberts in Hague v. CIO: "Whenever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights and liberties of
citizens. The privilege of a citizen of the United States to use the streets
and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and
in consonance with peace and good order; but must not, in the guise of
respondents, be abridged or denied." The above excerpt was quoted
with approval in Primicias v. Fugoso. Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this
Court categorically affirmed that plazas or parks and streets are outside
the commerce of man and thus nullified a contract that leased Plaza
Soledad of plaintiff-municipality. Reference was made to such plaza
"being a promenade for public use," which certainly is not the only
purpose that it could serve. To repeat, there can be no valid reason why
a permit should not be granted for the proposed march and rally starting
from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the
streets to the gates of the US embassy, hardly two blocks away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on
the matter. In holding that the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at Plaza Miranda in Quiapo,
this Court categorically declared: "Our conclusion finds support in the
decision in the case of Willis Cox v. State of New Hampshire, 312 U.S.,
569. In that case, the statute of New Hampshire P.L. chap. 145, section
2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be
obtained from the selectmen of the town or from licensing committee,'
was construed by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United
States, in its decision (1941) penned by Chief Justice Hughes affirming
the judgment of the State Supreme Court, held that 'a statute requiring
persons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of
speech and press, where, as the statute is construed by the state courts,
the licensing authorities are strictly limited, in the issuance of licenses, to
a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of
affording an opportunity to provide proper policing, and are not invested
with arbitrary discretion to issue or refuse license, . . . . "Nor should the
point made by Chief Justice Hughes in a subsequent portion of the
opinion be ignored: "Civil liberties, as guaranteed by the Constitution,
imply the existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but
rather as one of the means of safeguarding the good order upon which
they ultimately depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed to promote
the public convenience in the interest of all, it cannot be disregarded by
the attempted exercise of some civil right which in other circumstances
would be entitled to protection."
xxx xxx xxx
6. . . . The principle under American doctrines was given
utterance by Chief Justice Hughes in these words: "The question, if the
rights of free speech and peaceable assembly are to be preserved, is
not as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which
the Constitution protects." There could be danger to public peace and
safety if such a gathering were marked by turbulence. That would
deprive it of its peaceful character. It is true that the licensing official,
here respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not
of what may possibly occur but of what may probably occur, given all the
relevant circumstances, still the assumption — especially so where the
assembly is scheduled for a specific public place — is that the permit
must be for the assembly being held there. The exercise of such a right,
in the language of Justice Roberts, speaking for the American Supreme
 Court, is not to be "abridged on the plea that it may be exercised in
some other place."
xxx xxx xxx
8. By way of a summary. The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public
place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal
possession is required. Such application should be filed well ahead in
time to enable the public official concerned to appraise whether there
may be valid objections to the grant of the permit or to its grant but at
another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for
the decision reached. If he is of the view that there is such an imminent
and grave danger of a substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether favorable or adverse, must
be transmitted to them at the earliest opportunity. Thus if so minded,
they can have recourse to the proper judicial authority. Free speech and
peaceable assembly, along with the other intellectual freedoms, are
highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes "as the sovereign
prerogative of judgment." Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. . . . .
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983,

125 SCRA 553, 569)
8. By way of a summary. The
applicants for a permit to hold an
assembly should inform the licensing
authority of the date, the public place
where and the time when it will take
place. If it were a private place, only the
consent of the owner or the one entitled
to its legal possession is required. Such
application should be filed well ahead
SEC. 4. Permit when required and
when not required. — A written permit
shall be required for any person or
persons to organize and hold a public
assembly in a public place.
However, no permit shall be required if
the public assembly shall be done or
made in a freedom park duly
established by law or ordinance duly
in time to enable the public official
concerned to appraise whether there
may be valid objections to the grant of
the permit or to its grant but at another
public place. It is an indispensable
condition to such refusal or modification
that the clear and present danger test
be the standard for the decision
reached. If he is of the view that there
is such an imminent and grave danger
of a substantive evil, the applicants
must be heard on the matter.
Thereafter, his decision, whether
favorable or adverse, must be
transmitted to them at the earliest
opportunity. Thus if so minded, they
can have recourse to the proper judicial
authority.
established by law or ordinance or in
private property, in which case only the
consent of the owner or the one
entitled to its legal possession is
required, or in the campus of a
government-owned and operated
educational institution which shall be
subject to the rules and regulations of
said educational institution. Political
meetings or rallies held during any
election campaign period as provided
for by law are not covered by this Act.
SEC. 5. Application requirements. —
All applications for a permit shall
comply with the following guidelines:
(a) The applications shall be in writing
and shall include the names of the
leaders or organizers; the purpose of
such public assembly; the date, time
and duration thereof, and place or
streets to be used for the intended
activity; and the probable number of
persons participating, the transport and
the public address systems to be used.
(b) The application shall incorporate
the duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with
the office of the mayor of the city or
municipality in whose jurisdiction the
intended activity is to be held, at least
five (5) working days before the
scheduled public assembly.
(d) Upon receipt of the application,
which must be duly acknowledged in
writing, the office of the city or
municipal mayor shall cause the same
to immediately be posted at a
conspicuous place in the city or
municipal building.
SEC. 6. Action to be taken on the
application. —
(a) It shall be the duty of the mayor or
any official acting in his behalf to issue
or grant a permit unless there is clear
and convincing evidence that the
public assembly will create a clear and
present danger to public order, public
safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in
his behalf shall act on the application
within two (2) working days from the
date the application was filed, failing
which, the permit shall be deemed
granted. Should for any reason the
mayor or any official acting in his
behalf refuse to accept the application
for a permit, said application shall be
posted by the applicant on the
premises of the office of the mayor and
shall be deemed to have been filed.
(c) If the mayor is of the view that there
is imminent and grave danger of a
substantive evil warranting the denial
or modification of the permit, he shall
immediately inform the applicant who
must be heard on the matter.
(d) The action on the permit shall be in
writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in
his behalf denies the application or
modifies the terms thereof in his
permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the
Metropolitan Trial Court, the Municipal
 Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the
Intermediate Appellate Court, its
decisions may be appealed to the
appropriate court within forty-eight (48)
hours after receipt of the
same. No appeal bond and record on
appeal shall be required. A decision
granting such permit or modifying it in
terms satisfactory to the applicant shall
be immediately executory.
(g) All cases filed in court under this
section shall be decided within twenty-
four (24) hours from date of filing.
Cases filed hereunder shall be
immediately endorsed to the executive
judge for disposition or, in his absence,
to the next in rank.
(h) In all cases, any decision may be
appealed to the Supreme Court.
(i) Telegraphic appeals to be followed
by formal appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates the time, place and manner of
the assemblies. This was adverted to in Osmeña v. Comelec, 20 where the Court
referred to it as a "content-neutral" regulation of the time, place, and manner of
holding public assemblies. 21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
to all kinds of public assemblies 22 that would use public places. The reference to
"lawful cause" does not make it content-based because assemblies really have
to be for lawful causes, otherwise they would not be "peaceable" and entitled to
protection. Neither are the words "opinion," "protesting" and "influencing" in the
definition of public assembly content based, since they can refer to any subject.
The words "petitioning the government for redress of grievances" come from the
wording of the Constitution, so its use cannot be avoided. Finally, maximum
tolerance is for the protection and benefit of all rallyists and is independent of
the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and
present danger to public order, public safety, public convenience, public morals
or public health. This is a recognized exception to the exercise of the right even
under the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and
association.
xxx xxx xxx
Article 29
1. Everyone has duties to the community in which alone the free
and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised
contrary to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without
interference. DSEIcT

2. Everyone shall have the right to freedom of expression; this

right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may therefore
be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
Contrary to petitioner's claim, the law is very clear and is nowhere vague in
its provisions. "Public" does not have to be defined. Its ordinary meaning is well-
known. Webster's Dictionary defines it, thus: 23
public, n, . . . 2a: an organized body of people . . . 3: a group of
people distinguished by common interests or characteristics . . . .
 Not every expression of opinion is a public assembly. The law refers to
"rally, demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place." So it does not cover any and all kinds of
gatherings.
Neither is the law overbroad. It regulates the exercise of the right to
peaceful assembly and petition only to the extent needed to avoid a clear and
present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not
relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise
and sufficient standard — the clear and present danger test stated in Sec. 6(a).
The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c)
substantially means the same thing and is not an inconsistent standard. As to
whether respondent Mayor has the same power independently under Republic
Act No. 7160 24 is thus not necessary to resolve in these proceedings, and was
not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an
alternative forum through the creation of freedom parks where no prior permit is
needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. — Every city and municipality in the
country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within
the poblacion where demonstrations and meetings may be held at any
time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the period of
six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park — Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added.
If this is so, the degree of observance of B.P. No. 880's mandate that every
city and municipality set aside a freedom park within six months from its
effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter
appears to have been taken for granted amidst the swell of freedom that rose
from the peaceful revolution of 1986. AaCTcI
 Considering that the existence of such freedom parks is an essential part
of the law's system of regulation of the people's exercise of their right to
peacefully assemble and petition, the Court is constrained to rule that after thirty
(30) days from the finality of this Decision, no prior permit may be required for the
exercise of such right in any public park or plaza of a city or municipality until that
city or municipality shall have complied with Section 15 of the law. For without
such alternative forum, to deny the permit would in effect be to deny the right.
Advance notices should, however, be given to the authorities to ensure proper
coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum tolerance
policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent
Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive
response" is in consonance with the legal definition of "maximum
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal of
the same." Unfortunately, however, the phrase "maximum tolerance" has
acquired a different meaning over the years. Many have taken it to mean
inaction on the part of law enforcers even in the face of mayhem and
serious threats to public order. More so, other felt that they need not
bother secure a permit when holding rallies thinking this would be
"tolerated." Clearly, the popular connotation of "maximum tolerance" has
departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance
is provided under the same law which requires all pubic assemblies to
have a permit, which allows the dispersal of rallies without a permit, and
which recognizes certain instances when water cannons may be used.
This could only mean that "maximum tolerance" is not in conflict with a
"no permit, no rally policy" or with the dispersal and use of water
cannons under certain circumstances for indeed, the maximum amount
of tolerance required is dependent on how peaceful or unruly a mass
action is. Our law enforcers should calibrate their response based on the
circumstances on the ground with the view to preempting the outbreak of
violence.
16. Thus, when I stated that calibrated preemptive response
is being enforced in lieu of maximum tolerance I clearly was not
referring to its legal definition but to the distorted and much
abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law enforcers
would shirk their responsibility of keeping the peace even when
 confronted with dangerously threatening behavior. I wanted to
send a message that we would no longer be lax in enforcing the law
but would henceforth follow it to the letter. Thus I said, "we have
instructed the PNP as well as the local government units to strictly
enforce a no permit, no rally policy . . . arrest all persons violating
the laws of the land . . . unlawful mass actions will be dispersed."
None of these is at loggerheads with the letter and spirit of Batas
Pambansa Blg. 880. It is thus absurd for complainants to even claim
that I ordered my co-respondents to violate any law. 25

At any rate, the Court rules that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it means the same
thing as maximum tolerance and is illegal if it means something else.
Accordingly, what is to be followed is and should be that mandated by the law
itself, namely, maximum tolerance, which specifically means the following:
SEC. 3. Definition of terms. — For purposes of this Act:
xxx xxx xxx
(c) "Maximum tolerance" means the highest degree of restraint
that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.AEIHaS

xxx xxx xxx

SEC. 9. Non-interference by law enforcement authorities. — Law
enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred
(100) meters away from the area of activity ready to maintain peace and
order at all times.
SEC. 10. Police assistance when requested. — It shall be
imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always
mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of
expression is primordial. Towards this end, law enforcement agencies
shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and
units to which they belong displayed prominently on the front and dorsal
parts of their uniform and must observe the policy of "maximum
tolerance" as herein defined;
 (b) The members of the law enforcement contingent shall not
carry any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high shoes
with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-
riot device shall not be used unless the public assembly is attended by
actual violence or serious threats of violence, or deliberate destruction of
property.
SEC. 11.Dispersal of public assembly with permit. — No public
assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as
follows:
(a) At the first sign of impending violence, the ranking officer of
the law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property, the
ranking officer of the law enforcement contingent shall audibly warn the
participants that if the disturbance persists, the public assembly will be
dispersed;
(c) If the violence or disturbance prevailing as stated in the
preceding subparagraph should not stop or abate, the ranking officer of
the law enforcement contingent shall audibly issue a warning to the
participants of the public assembly, and after allowing a reasonable
period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the assembly
a law, statute, ordinance or any provision of this Act. Such arrest shall be
governed by Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace
during the public assembly may be peacefully dispersed.
xxx xxx xxx
SEC. 12. Dispersal of public assembly without permit. — When
the public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed. CHcTIA

SEC. 13. Prohibited acts. — The following shall constitute

violations of the Act:
 (e) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred
(100) meters from the area of activity of the public assembly or on the
occasion thereof:
xxx xxx xxx
4. the carrying of firearms by members of the law enforcement
unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns
and loud sound systems.
Furthermore, there is need to address the situation adverted to by
petitioners where mayors do not act on applications for a permit and when the
police demand a permit and the rallyists could not produce one, the rally is
immediately dispersed. In such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show the police an application duly
filed on a given date can, after two days from said date, rally in accordance with
their application without the need to show a permit, the grant of the permit being
then presumed under the law, and it will be the burden of the authorities to show
that there has been a denial of the application, in which case the rally may be
peacefully dispersed following the procedure of maximum tolerance prescribed
by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of assembly.
In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly
vowed to uphold the liberty of our people and to nurture their prosperity. He said
that "in cases involving liberty, the scales of justice should weigh heavily against
the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental
rights come to the courts with a heavy presumption against their validity. These
laws and actions are subjected to heightened scrutiny." 26
For this reason, the so-called calibrated preemptive response policy
has no place in our legal firmament and must be struck down as a darkness that
shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned
as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
regulates the use of public places as to the time, place and manner of
assemblies. Far from being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of the power to issue
rally "permits" is valid because it is subject to the constitutionally-sound "clear
and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding
liberty by giving local governments a deadline of 30 days within which to
designate specific freedom parks as provided under B.P. No. 880. If, after that
period, no such parks are so identified in accordance with Section 15 of the
law, all public parks and plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of whatever kind shall be
required to hold an assembly therein. The only requirement will be written notices
to the police and the mayor's office to allow proper coordination and orderly
activities.
WHEREFORE, the petitions are GRANTED in part, and respondents,
more particularly the Secretary of the Interior and Local Governments, are
DIRECTED to take all necessary steps for the immediate compliance with
Section 15 of Batas Pambansa No. 880 through the establishment or designation
of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the
giving of advance notices, no prior permit shall be required to exercise the right
to peaceably assemble and petition in the public parks or plazas of a city or
municipality that has not yet complied with Section 15 of the law.
Furthermore, Calibrated Preemptive Response (CPR), insofar as it would
purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and
respondents are ENJOINED to REFRAIN from using it and to STRICTLY
OBSERVE the requirements of maximum tolerance. The petitions are
DISMISSED in all other respects, and the CONSTITUTIONALITY of Batas
Pambansa No. 880 is SUSTAINED. THcaDA

No costs.
SO ORDERED.
(Bayan v. Ermita, G.R. Nos. 169838, 169848 & 169881, [April 25, 2006], 522
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PHIL 201-241)