-Aquino, Jr. vs.
Enrile, 59 SCRA 18 On Diokno's motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place such withdrawal
G.R. No. L-35546 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO
RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.
MAKALINTAL, C.J.:p
These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by virtue of the
President's Proclamation No. 1081, dated September 21, 1972.
At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision represents a
consensus of the required majority of its members not only on the judgment itself but also on the rationalization of the issues and
the conclusions arrived at. On the final result the vote is practically unanimous; this is a statement of my individual opinion as
well as a summary of the voting on the major issues. Why no particular Justice has been designated to write just one opinion for
the entire Court will presently be explained.
At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that opinion. The
impracticability of the suggestion shortly became apparent for a number of reasons, only two of which need be mentioned. First,
the discussions, as they began to touch on particular issues, revealed a lack of agreement among the Justices as to whether some
of those issues should be taken up although it was not necessary to do so, they being merely convenient for the purpose of
ventilating vexing questions of public interest, or whether the decision should be limited to those issues which are really material
and decisive in these cases. Similarly, there was no agreement as to the manner the issues should be treated and developed. The
same destination would be reached, so to speak, but through different routes and by means of different vehicles of approach. The
writing of separate opinions by individual Justices was thus unavoidable, and understandably so for still another reason, namely,
that although little overt reference to it was made at the time, the future verdict of history was very much a factor in the thinking
of the members, no other case of such transcendental significance to the life of the nation having before confronted this Court.
Second — and this to me was the insuperable obstacle — I was and am of the opinion, which was shared by six other Justices1 at
the time the question was voted upon, that petitioner Jose W. Diokno's motion of December 28, 1973 to withdraw his petition
(G.R. No. L-35539) should be granted, and therefore I was in no position to set down the ruling of the Court on each of the
arguments raised by him, except indirectly, insofar as they had been raised likewise in the other cases.
It should be explained at this point that when the Court voted on Diokno's motion to withdraw his petition he was still under
detention without charges, and continued to remain so up to the time the separate opinions of the individual Justices were put in
final form preparatory to their promulgation on September 12, which was the last day of Justice Zaldivars tenure in the
Court.2 Before they could be promulgated, however, a major development supervened: petitioner Diokno was released by the
President in the morning of September 11, 1974. In view thereof all the members of this Court except Justice Castro agreed to
dismiss Diokno's petition on the ground that it had become moot, with those who originally voted to grant the motion for
withdrawal citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted to withdraw their
petitions or have been released from detention subject to certain restrictions.3 In the case of Aquino, formal charges of murder,
subversion and illegal possession of firearms were lodged against him with a Military Commission on August 11, 1973; and on
the following August 23 he challenged the jurisdiction of said Commission as well as his continued detention by virtue of those
charges in a petition for certiorari and prohibition filed in this Court (G.R. No.
L-37364). The question came up as to whether or not Aquino's petition for habeas corpus should be dismissed on the ground that
the case as to him should more appropriately be resolved in this new petition. Of the twelve Justices, however, eight voted against
such dismissal and chose to consider the case on the merits.4
would not emasculate the decisive and fundamental issues of public interest that demanded to be resolved, for they were also
raised in the other cases which still remained pending. Secondly, since it was this petitioner's personal liberty that was at stake, I
believed he had the right to renounce the application for habeas corpus he initiated. Even if that right were not absolute I still
would respect his choice to remove the case from this Court's cognizance, regardless of the fact that I disagreed with many of his
reasons for so doing. I could not escape a sense of irony in this Court's turning down the plea to withdraw on the ground, so he
alleges among others, that this is no longer the Court to which he originally applied for relief because its members have taken
new oaths of office under the 1973 Constitution, and then ruling adversely to him on the merits of his petition.
It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore should not be allowed
to pass unanswered. Any answer, however, would not be foreclosed by allowing the withdrawal. For my part, since most of those
statements are of a subjective character, being matters of personal belief and opinion, I see no point in refuting them in these
cases. Indeed my impression is that they were beamed less at this Court than at the world outside and designed to make political
capital of his personal situation, as the publicity given to them by some segments of the foreign press and by local underground
propaganda news sheets subsequently confirmed. It was in fact from that perspective that I deemed it proper to respond in kind,
that is, from a non-judicial forum, in an address I delivered on February 19, 1974 before the LAWASIA, the Philippine Bar
Association and the Philippine Lawyers' Association. Justice Teehankee, it may be stated, is of the opinion that a simple majority
of seven votes out of twelve is legally sufficient to make the withdrawal of Diokno's petition effective, on the theory that the
requirement of a majority of eight votes applies only to a decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the members of this
Court except Justice Castro were agreed that his petition had become moot and therefore should no longer be considered on the
merits. This notwithstanding, some of the opinions of the individual members, particularly Justices Castro and Teehankee, should
be taken in the time setting in which they were prepared, that is, before the order for the release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions are related, either briefly or in great detail, in the separate
opinions filed by the individual Justices. The petitioners were arrested and held pursuant to General Order No. 2 of the President
(September 22, 1972), "for being participants or for having given aid and comfort in the conspiracy to seize political and state
power in the country and to take over the Government by force ..."
General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of Proclamation No. 1081
(September 21, 1972) placing the entire country under martial law. The portions of the proclamation immediately in point read
as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I,
Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly
detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of
nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names,
uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders
that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or
regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until
otherwise ordered released by me or by my duly designated representative.
The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-chief of all
armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof,
when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part
thereof under martial law."
1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No. 1081. Stated
more concretely, is the existence of conditions claimed to justify the exercise of the power to declare martial law subject to
judicial inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is political and therefore its determination is
beyond the jurisdiction of this Court. The reasons are given at length in the separate opinions they have respectively signed.
Justice Fernandez adds that as a member of the Convention that drafted the 1973 Constitution he believes that "the Convention
put an imprimatur on the proposition that the validity of a martial law proclamation and its continuation is political and non-
justiciable in character."
Justice Barredo, on the other hand, believes that political questions are not per se beyond the Court's jurisdiction, the judicial
power vested in it by the Constitution being plenary and all-embracing, but that as a matter of policy implicit in the Constitution
itself the Court should abstain from interfering with the Executive's Proclamation, dealing as it does with national security, for
which the responsibility is vested by the charter in him alone. But the Court should act, Justice Barredo opines, when its
abstention from acting would result in manifest and palpable transgression of the Constitution proven by facts of judicial notice,
no reception of evidence being contemplated for purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate methods of approach.
Justice Esguerra maintains that the findings of the President on the existence of the grounds for the declaration of martial law are
final and conclusive upon the Courts. He disagrees vehemently with the ruling in Lansang vs. Garcia, 42 SCRA 448, December 11,
1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs. Castañeda, 91 Phil. 882 (1952). Justice
Barredo, for his part, holds that Lansang need not be overturned, indeed does not control in these cases. He draws a distinction
between the power of the President to suspend the privilege of the writ of habeas corpus, which was the issue in Lansang, and his
power to proclaim martial law, calling attention to the fact that while the Bill of Rights prohibits suspension of the privilege
except in the instances specified therein, it places no such prohibition or qualification with respect to the declaration of martial
law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as to the existence of a
state of rebellion in the country, and on that premise emphasizes the factor of necessity for the exercise by the President of his
power under the Constitution to declare martial law, holding that the decision as to whether or not there is
such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his responsibility being directly to the
people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muñoz Palma. They hold that the constitutional
sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid down in Lansang
although that case refers to the power of the President to suspend the privilege of the writ of habeas corpus. The recognition of
justiciability accorded to the question in Lansang, it should be emphasized, is there expressly distinguished from the power of
judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely whether he (the President) has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act."
The test is not whether the President's decision is correct but whether, in suspending the writ, he did or did not act arbitrarily.
Applying this test, the finding by the Justices just mentioned is that there was no arbitrariness in the President's proclamation of
martial law pursuant to the 1935 Constitution; and I concur with them in that finding. The factual bases for the suspension of the
privilege of the writ of habeas corpus, particularly in regard to the existence of a state of rebellion in the country, had not
disappeared, indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated. On this Point the
Court is practically unanimous; Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much more than academic
interest for purposes of arriving at a judgment. I am not unduly exercised by Americas decisions on the subject written in another
age and political clime, or by theories of foreign authors in political science. The present state of martial law in the Philippines is
peculiarly Filipino and fits into no traditional patterns or judicial precedents.
In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary court
proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter of
contemporary history within the cognizance not only of the courts but of all observant people residing here at the time. Many of
the facts and events recited in detail in the different "Whereases" of the proclamation are of common knowledge. The state of
rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are
none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the
country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed
clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed
news sheets or rumors disseminated in whispers; recruitment of armed and ideological adherents, raising of funds, procurement
of arms and material, fifth-column activities including sabotage and intelligence — all these are part of the rebellion which by
their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt
with in that context.
Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the question of
validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973 Constitution [Art. XVII, Sec. 3(2)]
that "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be
part of the law of the land and shall remain valid, legal, binding and effective even after ... the ratification of this Constitution ..."
To be sure, there is an attempt in these cases to resuscitate the issue of the effectivity of the new Constitution. All that, however, is
behind us now. The question has been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30,
March 31, 1973), and of course by the existing political realities both in the conduct of national affairs and in our relations with
other countries.
On the effect of the transitory provision Justice Muñoz Palma withholds her assent to any sweeping statement that the same in
effect validated, in the constitutional sense, all "such proclamations, decrees, instructions, and acts promulgated, issued, or done
by the incumbent President." All that she concedes is that the transitory provision merely gives them "the imprimatur of a law but
not of a constitutional mandate," and as such therefore "are subject to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the present cases into the
constitutional sufficiency of the factual bases for the proclamation of martial law — has become moot and purposeless as a
consequence of the general referendum of July 27-28, 1973. The question propounded to the voters was: "Under the (1973)
Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos to continue
beyond 1973 and finish the reforms he initiated under Martial Law?" The overwhelming majority of those who cast their ballots,
including citizens between 15 and 18 years, voted affirmatively on the proposal. The question was thereby removed from the
area of presidential power under the Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature of
the exercise of that power by the President in the beginning — whether or not purely political and therefore non-justiciable —
this Court is precluded from applying its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from detention but have not withdrawn their petitions because they
are still subject to certain restrictions,5 the ruling of the Court is that the petitions should be dismissed. The power to detain
persons even without charges for acts related to the situation which justifies the proclamation of martial law, such as the
existence of a state of rebellion, necessarily implies the power (subject, in the opinion of the Justices who consider Lansang
applicable, to the same test of arbitrariness laid down therein), to impose upon the released detainees conditions or restrictions
which are germane to and necessary to carry out the purposes of the proclamation. Justice Fernando, however, "is for easing the
restrictions on the right to travel of petitioner Rodrigo" and others similarly situated and so to this extent dissents from the ruling
of the majority; while Justice Teehankee believes that those restrictions do not constitute deprivation of physical liberty within
the meaning of the constitutional provision on the privilege of the writ of habeas corpus.
It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege with respect to
persons arrested or detained for acts related to the basic objective of the proclamation, which is to suppress invasion,
insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The preservation of society and national
survival take precedence. On this particular point, that is, that the proclamation of martial law automatically suspends the
privilege of the writ as to the persons referred to, the Court is practically unanimous. Justice Fernando, however, says that to him
that is still an open question; and Justice Muñoz Palma qualifiedly dissents from the majority in her separate opinion, but for the
reasons she discusses therein votes for the dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT IN THEIR SEPARATE
OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS, EXCEPT THOSE WHICH HAVE BEEN
PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH THE APPROVAL OF THIS COURT, AS HEREINABOVE
MENTIONED. NO COSTS.
Makasiar, Esguerra, Fernandez, Muñoz Palma and Aquino, JJ., concur.
Prefatory Note
(written on September 12, 1974)
My separate opinion below in the nine cases at bar was handed to Chief Justice Querube C. Makalintal on Monday, September 9,
1974, for promulgation (together with the individual opinions of the Chief Justice and the other Justices) on September 12
(today) as agreed upon by the Court.
On September 11 the petitioner Jose W. Diokno was released from military custody. The implications of this supervening event
were lengthily discussed by the Court in its deliberations in the afternoon. Eleven members thereafter voted to dismiss Diokno's
petition as being "moot and academic;" I cast the lone dissenting vote. Although perhaps in the strictest technical sense that
accords with conventional legal wisdom, the petition has become "moot" because Diokno has been freed from physical
confinement, I am nonetheless persuaded that the grave issues of law he has posed and the highly insulting and derogatory
imputations made by him against the Court and its members constitute an inescapable residue of questions of transcendental
dimension to the entire nation and its destiny and to the future of the Court — questions that cannot and should not be allowed
to remain unresolved and unanswered.
I have thus not found it needful nor even advisable to recast my separate opinion or change a word of it.
I invite the reader to assess my 38-page separate opinion which immediately follows, in the light of the foregoing context and
factual setting.
-Ilagan vs. Enrile, G.R. No. 70748 October 21, 1985
G.R. No. 70748 October 21, 1985
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO B. ARELLANO, and MARCOS
D. RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal Assistance Group [FLAG] and Movement of Attorneys
For Brotherhood, Integrity and Nationalism, Inc., [MABINI], petitioners,
vs.
HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting Chief of Staff, Armed Forces of
the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP Regional Commander for Region XI, Camp Catitipan, Davao
City, respondents.
This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal Assistance Group (FLAG);
and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys Laurente C. Ilagan,
Antonio B. Arellano, and Marcos Risonar, Jr.
The facts follow:
On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp
Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day, fifteen lawyers
from the IBP Davao Chapter visited Atty. Ilagan. One of the visiting lawyers, Atty. Antonio Arellano, was also arrested and
detained on the basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the IBP Davao Chapter that
Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan to verify his arrest papers and was
detained on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander.
This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter referred to as the
detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on
the basis of Mission Orders. and that there appears to be a military campaign to harass lawyers involved in national security
cases.
On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May 23, 1985.
In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA issued by the President
on January 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A; and that
pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al, 1 Courts lack the authority to inquire into the cause and validity of
detention of persons held pursuant to the suspension. Respondents further expounded on the state of rebellion in Davao City on
the basis of seized subversive documents, implying that the detained attorneys played active roles in organizing mass actions of
the Communist Party of the Philippines and the National Democratic Front. Respondents then prayed for the denial of the
petition.
During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of their arrest and detention.
Counsel for the respondents, on the other hand, presented evidence of subversive activities in Davao, but due to lack of evidence
linking the detained attorneys with the alleged subversive activities, the Court, on the same day resolved to order the temporary
release of the detained attorneys on the recognizance of the principal counsel of petitioner's, namely, retired Chief Justice
Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further resolved to give petitioners ten days within
which to file a traverse to the Return of the Writ and the respondents ten days to file a Reply thereto.
The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained attorneys had not yet
been released and praying that they be released to the custody of the principal counsel of petioners at the Supreme Court.
On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of Release reiterating that the
suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and attached
thereto classified documents consisting of the Report of respondent Brig. Gen. Tan-Gatue stating that the detained attorneys
"were arrested not on the basis of their 'lawyering' but for specific acts of rebellion and economic sabotage as well as for their
leadership in the CPP" ... "even to the extent of attending CPP and NPA rites and using their profession as lawyers as cover-up for
their activities in furtherance of CPP goals and objectives;" and that the detained attorneys were involved in the Welgang Bayan
in Davao City, a mass action "with demands for the armed overthrow of the government." Sworn statements of several persons
also implicated the detained attorneys in alleged subversive activities. Respondents added that, while there is a Court Order
directing release, they, too, are under orders, pursuant to the PDA, to hold in custody the detained attorneys until ordered
released by the President or by his duly authorized representative, and that the PDA, when issued, constitutes authority to
preventively detain them for a period not exceeding one year.
On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for Rebellion was filed on May
27, 1985 against the detained attorneys before the Regional Trial Court of Davao City, Branch X, docketed as Criminal Case No.
12,349; that a Warrant of Arrest had been issued against them; and praying that this Petition be dismissed for having been
rendered moot and academic.
On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation contending that since the
detained attorneys were not given the benefit of preliminary investigation, they were denied their constitutional right to due
process; consequently, the Information for Rebellion filed against them is void. Respondents, on the other hand, filed on the same
day a Comment to petitioners' Manifestation and Motion reiterating their prayer for the dismissal of the petition on the ground of
mootness by virtue of the proceedings before the Regional Trial Court of Davao.
On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the "Welgang Bayans" were in legitimate
exercise of the constitutional right of expression and assembly to petition the government for redress of grievances; that the
detained attorneys' participation was limited to serving in the legal panel and the negotiating panels; that Proclamation No. 2045
is unconstitutional because there exists no factual or legal basis for the suspension of the Writ of Habeas Corpus as provided for in
the Constitution; that the evidence presented by respondents against the detained attorneys are of a doubtful and flimsy nature;
and that the PDA is unconstitutional because it violates Section 3, Article IV, of the Constitution prohibiting unreasonable
searches and seizures.
On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve the issues raised as the
case affects not only the detained attorneys but the entire legal profession and the administration of justice as well.
Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated Reply, reiterating first, the
validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A and of the PDA issued against petitioners as an
incident to the suspension of the privilege of the Writ of habeas corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et
al.; 2 and thirdly, its prayer for the dismissal of the petition on the ground of mootness by virtue of the filing of an Information for
Rebellion against the detained attorneys before the Regional Trial Court of Davao City .
As contended by respondents, the petition herein has been rendered moot and academic by virtue of the filing of an Information
against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest
against them. 3 The function of the special proceeding of habeas corpus is to inquire into the legality of one's detention. Now that
the detained attorneys' incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against them
before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The Writ had served its purpose.4
SEC. 4. When writ not allowed or discharge authorized.-If it appears 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 to discharge of a person charged
with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment. (Rule 102)
If the detained attorneys question their detention because of improper arrest, or that no preliminary investigati•n has been
conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of
Arrest, and /or the Information on grounds provided by the Rules or to ask for an investigation / reinvestigation of the
case. 5 Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the Information filed
against the accused. 6 So is it explicitly provided for by Section. 14, Rule of 102 of the Rules of Court, reading:
SEC. 14. When person lawfully imprisoned recommitted and when let to bail.- If it appears that the prisoner
was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an
offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or
restrained on a charge of having committed an offense not so punishable, he may be recommitted to
imprisonment or admitted to bail in the discretion of the court or judge. . . .
But petitioners submit that because of the absence of a preliminary investigation, the Information for Rebellion filed against the
detained attorneys is void and the Court below could not have acquired jurisdiction over them, and consequently, they are
entitled to release.
On the other hand, respondents contend that a preliminary investigation was unnecessary since the detained attorneys were
lawfully arrested without a warrant.
Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the Regional Trial Court shall be
filed without a preliminary investigation having been first conducted, except as provided for in Section 7 of Rule 112. 7 The
Information filed by the City Fiscal before the Regional Trial Court of the City of Davao fell within the exception. Thus, the
Verification reads:
VERIFICATION
I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985
Rules on criminal Procedure, wherein after examining the affidavits of the government witnesses and
other documents attached to the records, I found sufficient ground to hold respondents for trial.
(SGD.) EMMANUEL E. GALICIA
City Fiscal
Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to 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 preliminary investigation having been first conducted on
the basis of the affidavit of the offended party or arrested 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.
Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is lawful.
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 [al 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. (Rule 113)
Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while paragraph (c)
refers to escaping prisoners. As to whether the detained attorneys fall under either of the first two instances enumerated is a
question of fact, which will need the presentation of evidence and is more properly within the province of the trial Court.
The question of absence of a proper preliminary investigation is also better inquired into by the Court below. When so raised, this
Court, speaking through Mr. Justice Claudio Teehankee, has held that the trial Court is called upon "not to dismiss the information
but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. 8 As stressed
in People vs. Casiano, 1 SCRA 478 [1961], this is the proper procedure since the "absence of such investigation did not impair the
validity of the Information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First
Instance". 9 The right to a preliminary investigation, being waivable, does not argue against the validity of the proceedings, the
most that could have been done being to remand the case in order that such investigation could be conducted. 10

... The proper forum before which absence of preliminary investigation should be ventilated is the Court of
First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation
does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be
waived. Indeed, it is frequently waived. These are matters to be inquired into by the trial court, not an
appellate Court. 11

The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the release of two of the accused, is not on all fours
with the case at bar as, in that case, the accused were charged only with Illegal Possession of Subversive documents under
Presidential Decree No. 33, which is punishable by prision correccional in its minimum period, and the trial Court had granted
bail; whereas in this case, petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail.

WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and academic. Petitioners are now
detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for
Rebellion filed against them before said Court.

SO ORDERED.
-Enrile vs. Salazar G.R. 92163, June 5, 1990
G.R. No. 92163 June 5, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE
PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR
EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA
TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL
CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, respondents.
G.R. No. 92164 June 5, 1990
SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,
vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and
HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court, Quezon City, Branch
103, respondents.
Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as
the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be
sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but
none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite
impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now
brought to bear on the same question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested
by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant
issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant
had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor
Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging
Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and
multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10,
1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having
been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was
brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern
Police District, Brig. Gen. Edgardo Dula Torres.3
On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpus herein (which was
followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or
having been:
(a) held to answer for criminal offense which does not exist in the statute books;
(b) charged with a criminal offense in an information for which no complaint was initially filed or
preliminary investigation was conducted, hence was denied due process;
(c) denied his right to bail; and
(d) arrested and detained on the strength of a warrant issued without the judge who issued it first having
personally determined the existence of probable cause. 4
The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5 On March 5, 1990,
the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which had been
contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and
raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez ruling because-and this is
putting it very simply-the information in Hernandez charged murders and other common crimes committed as a necessary means
for the commission of rebellion, whereas the information against Sen. Enrile et al. charged murder and frustrated murder
committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between
the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred
to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime
("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause
of the same paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the same
date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from
notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution
stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the
petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted
against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163.
The parties' oral and written pleas presented the Court with the following options:
(a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case
that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may
properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral
argument although it is not offered in his written pleadings;
(b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of
rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less
grave character;
(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course,
whether or not necessary to its commission or in furtherance thereof.
On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the
doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases
have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal.
This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom
Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify
or neutralize Hernandez by enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by
reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts
which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious
offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the President in effect by legislative flat
reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less than accord it the same recognition,
absent any sufficiently powerful reason against so doing.
On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application
to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as
prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof.
While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that
they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with
any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following
excerpt from the majority opinion in that case:
 There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be
applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were punished
separately (assuming that this could be done), the following penalties would be imposable upon the
movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years
of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death,
depending upon the modifying circumstances present. in other words, in the absence of aggravating
circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty
would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said
provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the
movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing
him to a penalty more severe than that which would be proper if the several acts performed by him were
punished separately. In the words of Rodriguez Navarro:
La unificacion de penas en los casos de concurso de delitos a que hace referencia
este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro
reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)
We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the
counterpart of our Article 48), as amended in 1908 and then in 1932, reading:
Las disposiciones del articulo anterior no son aplicables en el caso de que un solo
hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario
para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave en su
grado maximo, hasta el limite que represents la suma de las que pudieran
imponerse, penando separadamente los delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por
separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p.
2163)
and that our Article 48 does not contain the qualification inserted in said amendment, restricting the
imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed
the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said
limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed,
if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that
prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be,
in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe
a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for
this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single
act, the offender is deemed less perverse than when he commits said crimes thru separate and distinct
acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum
of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the
separate penalties for each offense. 12
The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandez remains binding
doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a
means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.
This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That
is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other
questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense.
Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that
indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said:
In conclusion, we hold that, under the allegations of the amended information against defendant-appellant
Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the
crime of rebellion allegedly committed by said defendants, as means "necessary" (4) for the perpetration of
said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore,
simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the
maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a
fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with accused persons
amenable to a similar punishment, said defendant may be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct
so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must
therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the
petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The
record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau
of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent
prosecutors, culminating in the filing of the questioned information. 14 There is nothing inherently irregular or contrary to law in
filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if warranted by
the evidence developed during the preliminary investigation.
It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personally determining the
existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, sec.
2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a
personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the
supporting documents submitted by the prosecutor.16 Petitioner claims that the warrant of arrest issued barely one hour and
twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go
over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider
only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have,
so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly
performed.
Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as applicable to
petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging
only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But
the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate
vehicle for asserting a right to bail or vindicating its denial?
The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional
liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course
was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of
the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of
this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also
available there.
Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or,
contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of
remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action
before the respondent Judge. 18
There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these
went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel
or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said SO ORDERED.
Judge and should have been brought up there instead of directly to this Court.

There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the
respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold
them to be of such complexity or transcendental importance as to disqualify every court, except this Court, from deciding them;
none, in short that would justify by passing established judicial processes designed to orderly move litigation through the
hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court against the grant of bail
to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail,
and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here
issued a warrant of arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's recommendation
regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital
offense is charged.19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the
right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all
apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just
outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming
directly to this Court.

Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's
hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the
same on the merits. But in so doing, the Court cannot express too strongly the view that said petition interdicted the ordered and
orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed
for was denied by the former and, in a proper case, by the Court of Appeals on review.

Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present,
that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence
of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R.
No. 92164) which is virtually Identical to that of petitioner Enrile in factual milieu and is therefore determinable on the same
principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused
of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of
March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violation-they claim-of
their constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies
the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country
than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is
allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings,
bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as
against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe
from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There
is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the
other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of
illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands
at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing
the initiative in this matter, which is properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information
filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple
rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of
bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the
respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the
petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs.
-Brocka et. al. vs. Enrile G.R. No. 69863-65 (December 10, 1990)
LINO BROCKA, et al, Petitioners,
vs. JUAN PONCE ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO BALBANERO, COL. ABAD, COL. DAWIS,
SERGIO APOSTOL, P/LT, RODOLFO M. GARCIA and JUDGE RICARDO TENSUAN, Respondents.
This petition was originally filed on February 13, 1985 to secure the release of petitioners on habeas corpus and to permanently
enjoin the City Fiscal of Quezon City from investigating charges of "Inciting to Sedition" against petitioners Lino Brocka, Benjamin
Cervantes, Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the corresponding informations for this
offense has been filed by the City Fiscal against them on February 11, 1985, a supplemental petition was filed on February 19, 1985
(p. 51, Rollo) to implead the Presiding Judge, 1 and to enjoin the prosecution of Criminal Cases Nos. Q-38023, Q-38024 and Q-38025
(p. 349, Rollo) and the issuance of warrants for their arrests, including their arraignment. Since then President Ferdinand E. Marcos
had ordered the provisional release of Brocka, et al., the issue on habeas corpus has become moot and academic (p. 396, Rollo). We
shall thus focus on the question of whether or not the prosecution of the criminal cases for Inciting to Sedition may lawfully be
enjoined.:-cralaw
Petitioners were arrested on January 28, 1985 by elements of the Northern Police District following the forcible and violent
dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned Transport Organization
(ACTO). Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783, 37787 and 37788 with Branch 108,
Regional Trial Court, NCJR, Quezon City. 2
Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and for whom no bail was recommended,
the other petitioners were released on bail of P3,000.00 each. Brocka, et al.'s provisional release was ordered only upon an urgent
petition for bail for which daily hearings from February 1-7, 1985 were held.
However, despite service of the order of release on February 9, 1985, Brocka, et al. remained in detention, respondents having
invoked a Preventive Detention Action (PDA) allegedly issued against them on January 28, 1985 (p. 6, Rollo). Neither the original,
duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).
Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition, docketed as Criminal Cases Nos. Q-38023,
Q-38024 and Q-38025 (p. 349, Rollo), without prior notice to their counsel (p. 7, Rollo). The original informations filed
recommended no bail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second offense are cited by Brocka, et
al. (quoting from a separate petition filed on their behalf in G.R. Nos. 69848-50 entitled "Sedfrey A. Ordoñez vs. Col. Julian Arzaga,
et al."), as follows:
"x x x
"6. The sham' character of the inquest examination concocted by all respondents is starkly bizarre when we consider that as early
as 10:30 A.M. today, February 11, 1985, Benjamin Cervantes was able to contact undersigned petitioner by phone informing
counsel that said Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be brought before the
Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently, another phone call was received by petitioning counsel informing
him that the appearance of Benjamin Cervantes et al. was to be at 2:00 P.M. When petitioning counsel arrived in the office of
Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet been received by any of the panel of three assistant
city fiscals, although the five persons under detention were already in the office of said assistant fiscal as early as 2:00 P.M. It was
only at 3:00 when a representative of the military arrived bringing with him alleged statements of complainants against Lino Broka
(sic) et al. for alleged inciting to sedition, whereupon undersigned counsel asked respondent Colonel Agapito Abad 'who ordered
the detained persons to be brought to the office of Assistant Fiscal Arturo Tugonon since there were no charges on file;' and said
Colonel Agapito Abad said aloud: 'I only received a telephone call from Colonel Arzaga about 11:00 A.M. to bring the detained
persons today — I am only the custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the charges
against Lino Broka (sic) had been officially received and he was informed that the said charges were never coursed through the
Records Office.
"7. Under the facts narrated above, respondents have conspired to use the strong arm of the law and hatched the nefarious scheme
to deprive Lino Broka (sic) et al. the right to bail because the utterances allegedly constituting inciting to sedition under Article 142
of the Revised Penal Code are, except for varying nuances, almost verbatim the same utterances which are the subject of Criminal
Cases No. 37783, 37787 and 37788 and for which said detained persons are entitled to be released on bail as a matter of
constitutional right. Among the utterances allegedly made by the accused and which the respondents claimed to be violative of
Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers, "Makiisa sa aming layunin, "Digmaang bayan ang sagot sa
kahirapan,' Itigil ang pakikialam ng imperyalismo sa Pilipinas,' 'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B)
"8. That when petitioning counsel and other members of the defense panel requested that they be given 7 days within which said
counsel may confer with their clients — the detained persons named above, the panel of assistant fiscals demanded that said
detained persons should sign a 'waiver' of their rights under Article 125 of the Revised Penal Code as a condition for the grant of
said request, which is a harassing requirement considering that Lino Broka (sic) et al. were already under the detention, albeit
illegally, and they could not have waived the right under Rule 125 which they did not enjoy at the time the ruling was made by the
panel of assistant city fiscals." (pp. 4-6, Rollo in G.R. 69848-50).
They were released provisionally on February 14, 1985, on orders of then President F. E. Marcos. The circumstances of their release
are narrated in Our resolution dated January 26, 1985, as quoted in the Solicitor General's Manifestation as follows:
"G.R. Nos. 69848-50 (Sedfrey A. Ordoñez, Petitioner, vs. Col. Julian Arzaga, et al., Respondents). — Petitioner Sedfrey A. Ordoñez
filed this petition for habeas corpus in behalf of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander Luzano, and Rodolfo
Santos, who were all detained under a Preventive Detention Action (PDA) issued by then President Ferdinand E. Marcos on January
28, 1985. They were charged in three separate informations of the crime of illegal assembly under Art. 146, paragraph 3 of the
Revised Penal Code, as amended by PD 1834. On February 7, 1985, the Honorable Miriam Defensor Santiago, Regional Trial Judge
of Quezon City, issued a resolution in the above criminal cases, directing the release of the five accused on bail of P6,000.00 for each
of them, and from which resolution the respondent fiscals took no appeal. Immediately thereafter, the accused filed their respective
bail bonds. This notwithstanding, they continued to be held in detention by order of the respondent colonels; and on February 11,
1985, these same accused were 'reinvestigated,' this time on charges of 'inciting to sedition' ** under Art. 142 of the Revised Penal
Code, following which corresponding cases were filed. The respondents complied with Our resolution requiring them, inter alia, to
make a RETURN of the writ of habeas corpus. In their RETURN, it appeared that all the accused had already been released, four of
them on February 15, 1985 and one February 8, 1985. The petitioner, nevertheless, argued that the petition has not become moot
and academic because the accused continue to be in the custody of the law under an invalid charge of inciting to sedition." (p. 395,
Rollo).
Hence, this petition.
Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient bases for enjoining their criminal
prosecution, aside from the fact that the second offense of inciting to sedition is illegal, since it is premised on one and the same act
of attending and participating in the ACTO jeepney strike. They maintain that while there may be a complex crime from a single act
(Art. 48, RTC), the law does not allow the splitting of a single act into two offenses and filing two informations therefor, further,
that they will be placed in double jeopardy.
The primary issue here is the legality of enjoining the criminal prosecution of a case, since the two other issues raised by Brocka,
et al. are matters of defense against the sedition charge.
We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting to sedition.
Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final. There are
however exceptions, among which are:
"a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272, January 25,
1967, 19 SCRA 95);
"b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions (Dimayuga, et al.
vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);
"d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);
"e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng
vs. Trinidad, 47 Phil. 385, 389);
"f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA 616);
"h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953], cited in Rañoa
vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf, Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied (Salonga
vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438).
"7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners
(Rodriguez vs. Castelo, L-6374, August 1, 1958)." (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In the petition before Us, Brocka, et al. have cited the circumstances to show that the criminal proceedings had become a case of
persecution, having been undertaken by state officials in bad faith.: nad
Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from detention (before their release on
orders of then Pres. Marcos). This PDA was, however, issued on January 28, 1985, but was invoked only on February 9, 1985 (upon
receipt of the trial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24 hours (in Metro Manila)
or 48 hours (outside Metro Manila). (Ilagan v. Enrile, G.R. No. 70748, October 28, 1985, 139 SCRA 349). Noteworthy also is Brocka,
et al.'s claim that, despite subpoenas for its production, the prosecution merely presented a purported xerox copy of the invoked
PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).
The foregoing circumstances were not disputed by the Solicitor General's office. In fact they found petitioner's plight "deplorable"
(par. 51, Manifestation, p. 396, Rollo).
The hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly betrays respondent's bad faith and
malicious intent to pursue criminal charges against Brocka, et al.
We have expressed Our view in the Ilagan case that "individuals against whom PDAs have been issued should be furnished with
the original, and the duplicate original, and a certified true copy issued by the official having official custody of the PDA, at the time
of the apprehension" (supra, p. 369).
We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however, believe that
this should not be a license to run roughshod over a citizen's basic constitutional lights, such as due process, or manipulate the law
to suit dictatorial tendencies.
We are impelled to point out a citizen's helplessness against the awesome powers of a dictatorship. Thus, while We agree with the
Solicitor General's observation and/or manifestation that Brocka, et al. should have filed a motion to quash the information, We,
however, believe that such a course of action would have been a futile move, considering the circumstances then prevailing. Thus,
the tenacious invocation of a spurious and inoperational PDA and the sham and hasty preliminary investigation were clear signals
that the prosecutors intended to keep Brocka, et al. in detention until the second offense of "Inciting to Sedition" could be facilitated
and justified without need of issuing a warrant of arrest anew. As a matter of fact the corresponding informations for this second
offense were hastily filed on February 11, 1985, or two days after Brocka, et al.'s release from detention was ordered by the trial
judge on February 9, 1985.
Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside to satisfy
perceived illusory visions of national grandeur.: nad
In the case of J. Salonga v. Cruz Paño, We point out:
"Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to
be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution . . ." (G.R. No. L-59524,
February 18, 1985, 134 SCRA 438-at p. 448).
We, therefore, rule that where there is manifest bad faith that accompanies the filing of criminal charges, as in the instant case
where Brocka, et al. were barred from enjoying provisional release until such time that charges were filed, and where a sham
preliminary investigation was hastily conducted, charges that are filed as a result should lawfully be enjoined.
ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED from proceeding in any manner with
the cases subject of the petition. No costs.
SO ORDERED.
-Ocampo et al. vs. Enriquez, G.R. Nos. 225973, November 2016 [x] Vigil - Provide vigil
[x] Bugler/Drummer
SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, [x] Firing Party
MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EXDETAINEES LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED [x] Military Host/Pallbearers
BY DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARIO, FELIX C. DALISAY, AND DANILO M. [x] Escort and Transportation
DELAFUENTE,* PETITIONERS, [x] Arrival/Departure Honors

VS. 2. His remains lie in state at Ilocos Norte

REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS CAPACITY AS THE DEPUTY CHIEF OF STAFF FOR RESERVIST AND RETIREE
AFFAIRS, ARMED FORCES OF THE PHILIPPINES), THE GRAVE SERVICES UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R. 3. Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Taguig City. Date: TBAL.
VISAYA (IN HIS CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES), DEFENSE SECRETARY DELFIN
LORENZANA, AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ 4. Provide all necessary military honors accorded for a President
MARCOS, RESPONDENTS.
5. POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA[2]
RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C. SAGUISAG III, INTERVENORS.
Dissatisfied with the foregoing issuance, the following were filed by petitioners:

PERALTA, J.:
In law, as much as in life, there is need to find closure. Issues that have lingered and festered for so long and which
unnecessarily divide the people and slow the path to the future have to be interred. To move on is not to forget the past.
It is to focus on the present and the future, leaving behind what is better left for history to ultimately decide. The Court
finds guidance from the Constitution and the applicable laws, and in the absence of clear prohibition against the exercise
of discretion entrusted to the political branches of the Government, the Court must not overextend its readings of what
may only be seen as providing tenuous connection to the issue before it.
Facts
During the campaign period for the 2016 Presidential Election, then candidate Rodrigo R. Duterte (Duterte) publicly announced
that he would allow the burial of former President Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga Bayani (LNMB). He won
the May 9, 2016 election, garnering 16,601,997 votes. At noon of June 30, 2016, he formally assumed his office at the Rizal Hall in
the Malacañan Palace.
1. Petition for Certiorari and Prohibition[3] filed by Saturnino Ocampo and several others,[4] in their capacities as human rights
advocates or human rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human Rights
Victims Reparation and Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention[5] filed by Rene A.V. Saguisag, Sr. and his son,[6] as members of the Bar and human rights
lawyers, and his grandchild.[7]
3. Petition for Prohibition[8] filed by Representative Edcel C. Lagman, in his personal capacity, as member of the House of
Representatives and as Honorary Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-registered
corporation and organization of victims and families of enforced disappearance, mostly during the martial law regime of the
former President Marcos, and several others,[9] in their official capacities as duly-elected Congressmen of the House of
Representatives of the Philippines.
4. Petition for Prohibition[10] filed by Loretta Ann Pargas-Rosales, former Chairperson of the Commission on Human Rights, and
several others,[11] suing as victims of State-sanctioned human rights violations during the martial law regime of Marcos.

On August 7, 2016, public respondent Secretary of National Defense Delfin N. Lorenzana issued a Memorandum to the public
respondent Chief of Staff of the Armed Forces of the Philippines (AFP), General Ricardo R. Visaya, regarding the interment of
Marcos at the LNMB, to wit:
Subject: Interment of the late Former President Ferdinand Marcos at LNMB
Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016.
In compliance to (sic) the verbal order of the President to implement his election campaign promise to have the remains of the
late former President Ferdinand E. Marcos be interred at the Libingan ng mga Bayani, kindly undertake all the necessary planning
and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security
requirements. Coordinate closely with the Marcos family regarding the date of interment and the transport of the late former
President's remains from Ilocos Norte to the LNMB.
5. Petition for Mandamus and Prohibition[12] filed by Heherson T. Alvarez, former Senator of the Republic of the Philippines, who
fought to oust the dictatorship of Marcos, and several others,[13] as concerned Filipino citizens and taxpayers.
6. Petition for Certiorari and Prohibition[14] filed by Zaira Patricia B. Baniaga and several others,[15] as concerned Filipino citizens
and taxpayers.
7. Petition for Certiorari and Prohibition[16] filed by Algamar A. Latiph, former Chairperson of the Regional Human Rights
Commission, Autonomous Region in Muslim Mindanao, by himself and on behalf of the Moro[17] who are victims of human rights
during the martial law regime of Marcos.
8. Petition for Certiorari and Prohibition[18] filed by Leila M. De Lima as member of the Senate of the Republic of the Philippines,
public official and concerned citizen.

The overall OPR for this activity will [be] the PVAO since the LNMB is under its supervision and administration. PVAO shall
Issues
designate the focal person for this activity who shall be the overall overseer of the event.
Procedural
Submit your Implementing Plan to my office as soon as possible.[1]
On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the Philippine Army (PA)
1. Whether President Duterte's determination to have the remains of Marcos interred at the LNMB poses a justiciable
Commanding General:
controversy.
SUBJECT: Funeral Honors and Service
2. Whether petitioners have locus standi to file the instant petitions.
TO: Commanding General, Philippine Army
Headquarters, Philippine Army
3. Whether petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts.
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9
1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July 1992, provide services, honors and other Substantive
courtesies for the late Former President Ferdinand E. Marcos as indicated:
1. Whether the respondents Secretary of National Defense and AFP Rear Admiral committed grave abuse of discretion, amounting
to lack or excess of jurisdiction, when they issued the assailed memorandum and directive in compliance with the verbal order of
President Duterte to implement his election campaign promise to have the remains of Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed memorandum and directive violate the Constitution, domestic and
international laws, particularly:
(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1 of Article XI, Section
3(2) of Article XIV, and Section 26 of Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political Rights;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law" of the United Nations (U.N.) General Assembly;
and
(g) The "Updated Set of Principles for Protection and Promotion of Human Rights through Action to Combat Impunity" of the U.N.
Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth from the Marcoses and their cronies, and the
pronouncements of the Court on the Marcos regime have nullified his entitlement as a soldier and former President to interment
at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of the remains of former President Marcos at the LNMB after
they entered into an agreement with the Government of the Republic of the Philippines as to the conditions and procedures by
which his remains shall be brought back to and interred in the Philippines.
Opinion
The petitions must be dismissed.
Procedural Grounds
Justiciable controversy
It is well settled that no question involving the constitutionality or validity of a law or governmental act may be heard and
decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the very lis mota of the case.[19] In this case, the absence of the first two requisites, which are the
most essential, renders the discussion of the last two superfluous.[20]
An "actual case or controversy" is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract difference or dispute. [21] There must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law and jurisprudence.[22] Related to the requisite of an actual
case or controversy is the requisite of "ripeness," which means that something had then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action.[23] Moreover, the limitation on the power of judicial review to actual
cases and controversies carries the assurance that the courts will not intrude into areas committed to the other branches of
government.[24] Those areas pertain to questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government.[25] As they are concerned with questions of policy and issues dependent upon the wisdom, not legality of a particular
measure,[26] political questions used to be beyond the ambit of judicial review. However, the scope of the political question
doctrine has been limited by Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to
determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
The Court agrees with the OSG that President Duterte's decision to have the remains of Marcos interred at the LNMB involves a
political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and the Executive
Order (E.O.) No. 292 (otherwise known as the Administrative Code of 1987) to allow the interment of Marcos at the LNMB, which
is a land of the public domain devoted for national military cemetery and military shrine purposes, President Duterte decided a
question of policy based on his wisdom that it shall promote national healing and forgiveness. There being no taint of grave abuse
in the exercise of such discretion, as discussed below, President Duterte's decision on that political question is outside the ambit
of judicial review.
Locus standi
Defined as a right of appearance in a court of justice on a given question,[27] locus standi requires that a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.[28] Unless a person has sustained or is
in imminent danger of sustaining an injury as a result of an act complained of, such proper party has no standing. [29] Petitioners,
who filed their respective petitions for certiorari, prohibition and mandamus, in their capacities as citizens, human rights
violations victims, legislators, members of the Bar and taxpayers, have no legal standing to file such petitions because they failed
to show that they have suffered or will suffer direct and personal injury as a result of the interment of Marcos at the LNMB.
Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being
deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional
law.[30] In this case, what is essentially being assailed is the wisdom behind the decision of the President to proceed with the
interment of Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement of public funds, without showing
that Marcos is disqualified to be interred at the LNMB by either express or implied provision of the Constitution, the laws or
jurisprudence.
Petitioners Saguisag, et al.,[31] as members of the Bar, are required to allege any direct or potential injury which the Integrated Bar
of the Philippines, as an institution, or its members may suffer as a consequence of the act complained of.[32] Suffice it to state that
the averments in their petition-in-intervention failed to disclose such injury, and that their interest in this case is too general and
shared by other groups, such that their duty to uphold the rule of law, without more, is inadequate to clothe them with requisite
legal standing.[33]
As concerned citizens, petitioners are also required to substantiate that the issues raised are of transcendental importance, of
overreaching significance to society, or of paramount public interest.[34] In cases involving such issues, the imminence and clarity
of the threat to fundamental constitutional rights outweigh the necessity for prudence.[35] In Marcos v. Manglapus,[36] the majority
opinion observed that the subject controversy was of grave national importance, and that the Court's decision would have a
profound effect on the political, economic, and other aspects of national life. The ponencia explained that the case was in a class
by itself, unique and could not create precedent because it involved a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country and who, within the short space of three years (from 1986),
sought to return to the Philippines to die.
At this point in time, the interment of Marcos at a cemetery originally established as a national military cemetery and declared a
national shrine would have no profound effect on the political, economic, and other aspects of our national life considering that
more than twenty-seven (27) years since his death and thirty (30) years after his ouster have already passed. Significantly,
petitioners failed to demonstrate a clear and imminent threat to their fundamental constitutional rights.
As human rights violations victims during the Martial Law regime, some of petitioners decry re-traumatization, historical
revisionism, and disregard of their state recognition as heroes. Petitioners' argument is founded on the wrong premise that the
LNMB is the National Pantheon intended by law to perpetuate the memory of all Presidents, national heroes and patriots. The
history of the LNMB, as will be discussed further, reveals its nature and purpose as a national military cemetery and national
shrine, under the administration of the AFP.
Apart from being concerned citizens and taxpayers, petitioners Senator De Lima, and Congressman Lagman, et al.[37] come before
the Court as legislators suing to defend the Constitution and to protect appropriated public funds from being used unlawfully. In
the absence of a clear showing of any direct injury to their person or the institution to which they belong, their standing as
members of the Congress cannot be upheld.[38] They do not specifically claim that the official actions complained of, i.e., the
memorandum of the Secretary of National Defense and the directive of the AFP Chief of Staff regarding the interment of Marcos at
the LNMB, encroach on their prerogatives as legislators.[39]
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. Under the doctrine of
exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court, one should have availed
first of all the means of administrative processes available.[40] If resort to a remedy within the administrative machinery can still
be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his
jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought. [41] For reasons of comity
and convenience, courts of justice shy away from a dispute until the system of administrative redress has been completed and
complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the
case.[42] While there are exceptions[43] to the doctrine of exhaustion of administrative remedies, petitioners failed to prove the
presence of any of those exceptions.
Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of law, petitioners should be faulted for
failing to seek reconsideration of the assailed memorandum and directive before the Secretary of National Defense. The Secretary
of National Defense should be given opportunity to correct himself, if warranted, considering that AFP Regulations G 161-375
was issued upon his order. Questions on the implementation and interpretation thereof demand the exercise of sound
administrative discretion, requiring the special knowledge, experience and services of his office to determine technical and
intricate matters of fact. If petitioners would still be dissatisfied with the decision of the Secretary, they could elevate the matter
before the Office of the President which has control and supervision over the Department of National Defense (DND).[44]
Hierarchy of Courts
In the same vein, while direct resort to the Court through petitions for the extraordinary writs of certiorari, prohibition and
mandamus are allowed under exceptional cases,[45] which are lacking in this case, petitioners cannot simply brush aside the
doctrine of hierarchy of courts that requires such petitions to be filed first with the proper Regional Trial Court (RTC). The RTC is
not just a trier of facts, but can also resolve questions of law in the exercise of its original and concurrent jurisdiction over
petitions for certiorari, prohibition and mandamus, and has the power to issue restraining order and injunction when proven
necessary.
In fine, the petitions at bar should be dismissed on procedural grounds alone. Even if We decide the case based on the merits, the
petitions should still be denied.
Substantive Grounds
There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed
whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias.[46] None is present in this case.
I For the perpetuation of their memory and for the inspiration and emulation of this generation and of generations still unborn,
The President's decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it has the effect of not just rewriting
history as to the Filipino people's act of revolting against an authoritarian ruler but also condoning the abuses committed during
the Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a "post-dictatorship charter" and a
"human rights constitution." For them, the ratification of the Constitution serves as a clear condemnation of Marcos' alleged
"heroism." To support their case, petitioners invoke Sections 2,[47] 11,[48] 13,[49] 23,[50] 26,[51] 27[52] and 28[53] of Article II, Sec. 17
of Art. VII,[54] Sec. 3(2) of Art. XIV,[55] Sec. 1 of Art. XI,[56] and Sec. 26 of Art. XVIII[57] of the Constitution.
There is no merit to the contention.
As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution is a product of our collective history as a
people, its entirety should not be interpreted as providing guiding principles to just about anything remotely related to the
Martial Law period such as the proposed Marcos burial at the LNMB.
Tañada v. Angara[58] already ruled that the provisions in Article II of the Constitution are not self-executing. Thus:
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this article in
the 1935 Constitution is called the "basic political creed of the nation" by Dean Vicente Sinco. These principles in Article II are not
intended to be self executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II x x x are not "self-executing
provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to implement them
x x x.
xxx
The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are sourced from basic
considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and economic policy
making."[59]
In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing provision considering that a law should be passed by
the Congress to clearly define and effectuate the principle embodied therein. As a matter of fact, pursuant thereto, Congress
enacted R.A. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials and Employees"), R.A. No. 6770 ("The
Ombudsman Act of 1989"), R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder), and Republic Act No. 9485 ("Anti--
Red Tape Act of 2007"). To complement these statutes, the Executive Branch has issued various orders, memoranda, and
instructions relative to the norms of behavior/code of conduct/ethical standards of officials and employees; workflow
charts/public transactions; rules and policies on gifts and benefits; whistle blowing and reporting; and client feedback program.
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is also misplaced. Sec. 3(2) of Art. XIV
refers to the constitutional duty of educational institutions in teaching the values of patriotism and nationalism and respect for
human rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders in relation to the recovery of
Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no direct or indirect prohibition to Marcos' interment
at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to "ensure that the laws be faithfully executed,"
which is identical to Sec. 1, Title I, Book III of the Administrative Code of 1987,[60] is likewise not violated by public respondents.
Being the Chief Executive, the President represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his or her department.[61] Under the Faithful Execution Clause, the President has the power to take
"necessary and proper steps" to carry into execution the law.[62] The mandate is self-executory by virtue of its being inherently
executive in nature and is intimately related to the other executive functions.[63] It is best construed as an imposed obligation, not
a separate grant of power.[64] The provision simply underscores the rule of law and, corollarily, the cardinal principle that the
President is not above the laws but is obliged to obey and execute them.[65]
Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution, the burial of Marcos at the LNMB does not
contravene R.A. No. 289, R.A. No. 10368, and the international human rights laws cited by petitioners.
A. On R.A. No. 289[66]
R.A. No. 289 authorized the construction of a National Pantheon as the burial place of the mortal remains of all the Presidents of
the Philippines, national heroes and patriots.[67] It also provided for the creation of a Board on National Pantheon to implement
the law.[68]
On May 12, 1953, President Elpidio R. Quirino approved the site of the National Pantheon at East Avenue, Quezon City. [69] On
December 23, 1953, he issued Proclamation No. 431 to formally "withdraw from sale or settlement and reserve as a site for the
construction of the National Pantheon a certain parcel of land located in Quezon City." However, on July 5, 1954, President
Magsaysay issued Proclamation No. 42 revoking Proclamation Nos. 422 and 431, both series of 1953, and reserving the parcels of
land embraced therein for national park purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which a person's mortal remains may be interred at the
LNMB, and that AFP Regulations G 161-375 merely implements the law and should not violate its spirit and intent. Petitioners
claim that it is known, both here and abroad, that Marcos' acts and deed - the gross human rights violations, the massive
corruption and plunder of government coffers, and his military record that is fraught with myths, factual inconsistencies, and lies
- are neither worthy of perpetuation in our memory nor serve as a source of inspiration and emulation of the present and future
generations. They maintain that public respondents are not members of the Board on National Pantheon, which is authorized by
the law to cause the burial at the LNMB of the deceased Presidents of the Philippines, national heroes, and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral arguments, they miserably failed to provide legal and
historical bases as to their supposition that the LNMB and the National Pantheon are one and the same. This is not at all
unexpected because the LNMB is distinct and separate from the burial place envisioned in R.A. No 289. The parcel of land subject
matter of President Quirino's Proclamation No. 431, which was later on revoked by President Magsaysay's Proclamation No. 42,
is different from that covered by Marcos' Proclamation No. 208. The National Pantheon does not exist at present. To date, the
Congress has deemed it wise not to appropriate any funds for its construction or the creation of the Board on National Pantheon.
This is indicative of the legislative will not to pursue, at the moment, the establishment of a singular interment place for the
mortal remains of all Presidents of the Philippines, national heroes, and patriots. Perhaps, the Manila North Cemetery, the Manila
South Cemetery, and other equally distinguished private cemeteries already serve the noble purpose but without cost to the
limited funds of the government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations must fail. To apply the standard that the
LNMB is reserved only for the "decent and the brave" or "hero" would be violative of public policy as it will put into question the
validity of the burial of each and every mortal remains resting therein, and infringe upon the principle of separation of powers
since the allocation of plots at the LNMB is based on the grant of authority to the President under existing laws and regulations.
Also, the Court shares the view of the OSG that the proposed interment is not equivalent to the consecration of Marcos' mortal
remains. The act in itself does not confer upon him the status of a "hero." Despite its name, which is actually a misnomer, the
purpose of the LNMB, both from legal and historical perspectives, has neither been to confer to the people buried there the title of
"hero" nor to require that only those interred therein should be treated as a "hero." Lastly, petitioners' repeated reference to a
"hero's burial" and "state honors," without showing proof as to what kind of burial or honors that will be accorded to the remains
of Marcos, is speculative until the specifics of the interment have been finalized by public respondents.
B. On R.A. No. 10368[70]
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly disqualifying Marcos' burial at the LNMB
because the legislature, which is a co-equal branch of the government, has statutorily declared his tyranny as a deposed dictator
and has recognized the heroism and sacrifices of the Human Rights Violations Victims (HRVVs)[71] under his regime. They insist
that the intended act of public respondents damages and makes mockery of the mandatory teaching of Martial Law atrocities and
of the lives and sacrifices of its victims. They contend that "reparation" under R.A. No. 10368 is non-judicial in nature but
a political action of the State through the Legislative and Executive branches by providing administrative relief for the
compensation, recognition, and memorialization of human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution, torture,
enforced or involuntary disappearance, and other gross human rights violations committed from September 21, 1972 to
February 25, 1986. To restore their honor and dignity, the State acknowledges its moral and legal obligation [72] to provide
reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they experienced.
In restoring the rights and upholding the dignity of HRVVs, which is part of the right to an effective remedy, R.A. No. 10368
entitles them to monetary and non-monetary reparation. Any HRVV qualified under the law[73] shall receive a monetary
reparation, which is tax-free and without prejudice to the receipt of any other sum from any other person or entity in any case
involving human rights violations.[74] Anent the non-monetary reparation, the Department of Health (DOH), the Department of
Social Welfare and Development (DSWD), the Department of Education (DepEd), the Commission on Higher Education (CHED),
the Technical Education and Skills Development Authority (TESDA), and such other government agencies are required to render
the necessary services for the HRVVs and/or their families, as may be determined by the Human Rights Victims' Claims Board
(Board) pursuant to the provisions of the law.[75]
Additionally, R.A. No. 10368 requires the recognition of the violations committed against the HRVVs, regardless of whether they
opt to seek reparation or not. This is manifested by enshrining their names in the Roll of Human Rights Violations Victims (Roll)
prepared by the Board.[76] The Roll may be displayed in government agencies designated by the HRVV Memorial Commission
(Commission).[77] Also, a Memorial/Museum/Library shall be established and a compendium of their sacrifices shall be prepared
and may be readily viewed and accessed in the internet.[78] The Commission is created primarily for the establishment,
restoration, preservation and conservation of the Memorial/Museum/ Library/Compendium.[79]
To memorialize[80] the HRVVs, the Implementing Rules and Regulations of R.A. No. 10368 further mandates that: (1) the database
prepared by the Board derived from the processing of claims shall be turned over to the Commission for archival purposes, and
made accessible for the promotion of human rights to all government agencies and instrumentalities in order to prevent
recurrence of similar abuses, encourage continuing reforms and contribute to ending impunity;[81] (2) the lessons learned from
Martial Law atrocities and the lives and sacrifices of HRVVs shall be included in the basic and higher education curricula, as well
as in continuing adult learning, prioritizing those most prone to commit human rights violations;[82] and (3) the Commission shall
publish only those stories of HRVVs who have given prior informed consent.[83]
This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No. 10368 are not exclusive as it includes
the prohibition on Marcos' burial at the LNMB. It would be undue to extend the law beyond what it actually contemplates. With
its victim-oriented perspective, our legislators could have easily inserted a provision specifically proscribing Marcos' interment at
the LNMB as a "reparation" for the HRVVs, but they did not. As it is, the law is silent and should remain to be so. This Court cannot
read into the law what is simply not there. It is irregular, if not unconstitutional, for Us to presume the legislative will by
supplying material details into the law. That would be tantamount to judicial legislation.
Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will surely not be impaired by the
interment of Marcos at the LNMB. As opined by the OSG, the assailed act has no causal connection and legal relation to the law.
The subject memorandum and directive of public respondents do not and cannot interfere with the statutory powers and
functions of the Board and the Commission. More importantly, the HRVVs' entitlements to the benefits provided for by R.A. No
10368 and other domestic laws are not curtailed. It must be emphasized that R.A. No. 10368 does not amend or repeal, whether
express or implied, the provisions of the Administrative Code or AFP Regulations G 161-375:
It is a well-settled rule of statutory construction that repeals by implication are not favored. In order to effect a repeal by
implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be made
to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may be drawn, for
inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character. The language used in
the later statute must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short
of that standard does not suffice. x x x[84]
C. On International Human Rights Laws
Petitioners argue that the burial of Marcos at the LNMB will violate the rights of the HRVVs to "full" and "effective" reparation,
which is provided under the International Covenant on Civil and Political Rights (ICCPR),[85] the Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law[86] adopted by the U.N. General Assembly on December 16, 2005, and the Updated Set of
Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity[87] dated February 8, 2005 by the
U.N. Economic and Social Council.
We do not think so. The ICCPR,[88] as well as the U.N. principles on reparation and to combat impunity, call for the enactment of
legislative measures, establishment of national programmes, and provision for administrative and judicial recourse, in
accordance with the country's constitutional processes, that are necessary to give effect to human rights embodied in treaties,
covenants and other international laws. The U.N. principles on reparation expressly states:
Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal
obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations
under international human rights law and international humanitarian law which are complementary though different as to their
norms[.][Emphasis supplied]
The Philippines is more than compliant with its international obligations. When the Filipinos regained their democratic
institutions after the successful People Power Revolution that culminated on February 25, 1986, the three branches of the
government have done their fair share to respect, protect and fulfill the country's human rights obligations, to wit:
The 1987 Constitution contains provisions that promote and protect human rights and social justice.
As to judicial remedies, aside from the writs of habeas corpus, amparo,[89] and habeas data,[90] the Supreme Court promulgated on
March 1, 2007 Administrative Order No. 25-2007,[91] which provides rules on cases involving extra-judicial killings of political
ideologists and members of the media. The provision of the Basic Principles and Guidelines on the prevention of the victim's re-
traumatization applies in the course of legal and administrative procedures designed to provide justice and reparation.[92]
On the part of the Executive Branch, it issued a number of administrative and executive orders. Notable of which are the
following:
1. A.O. No. 370 dated December 10, 1997 (Creating the Inter-Agency Coordinating Committee on Human Rights)
2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a National Committee on the Culture of Peace)
3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every 12th Day of August Thereafter as
International Humanitarian Law Day)
4. E.O. No. 404 dated January 24, 2005 (Creating the Government of the Republic of the Philippines Monitoring
Committee [GRPMC] on Human Rights and International Humanitarian Law)
5. A.O. No. 157 dated August 21, 2006 (Creating an Independent Commission to Address Media and Activist Killings)
 6. A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing the Membership of the Presidential Human
Rights Committee, and Expanding Further the Functions of Said Committee)[93]
7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and Coordination Between the National Prosecution
Service and Other Concerned Agencies of Government for the Successful Investigation and Prosecution of Political
and Media Killings)
8. A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination with PHRC Sub-committee on Killings and
Disappearances)
9. A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against Political Violence)
10. A.O. No. 249 dated December 10, 2008 (Further Strengthening Government Policies, Plans, and Programs for the
Effective Promotion and Protection of Human Rights on the Occasion of the 60th Anniversary of the Universal
Declaration of Human Rights)
11. E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-Military-Liaison Committee to Formulate and
Implement a Comprehensive Program to Establish Strong Partnership Between the State and the Church on Matters
Concerning Peace and Order and Human Rights)
12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-Agency Committee on Extra-Legal Killings, Enforced
Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons)
14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of 2012)
15. Republic Act No. 10368 (Human Rights Victims Reparation And Recognition Act of 2013)
16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)
Contrary to petitioners' postulation, our nation's history will not be instantly revised by a single resolve of President Duterte,
acting through the public respondents, to bury Marcos at the LNMB. Whether petitioners admit it or not, the lessons of Martial
Law are already engraved, albeit in varying degrees, in the hearts and minds of the present generation of Filipinos. As to the
unborn, it must be said that the preservation and popularization of our history is not the sole responsibility of the Chief
Executive; it is a joint and collective endeavor of every freedom-loving citizen of this country.
Notably, complementing the statutory powers and functions of the Human Rights Victims' Claims Board and the HRVV Memorial
Commission in the memorialization of HRVVs, the National Historical Commission of the Philippines (NHCP), formerly known as
the National Historical Institute (NHI),[94] is mandated to act as the primary government agency responsible for history and is
authorized to determine all factual matters relating to official Philippine history. [95] Among others, it is tasked to: (a) conduct and
support all kinds of research relating to Philippine national and local history; (b) develop educational materials in various media,
implement historical educational activities for the popularization of Philippine history, and disseminate, information regarding
Philippine historical events, dates, places and personages; and (c) actively engage in the settlement or resolution of controversies
or issues relative to historical personages, places, dates and events.[96] Under R.A. Nos. 10066 (National Cultural Heritage Act of
2009)[97] and 10086 (Strengthening Peoples' Nationalism Through Philippine History Act),[98] the declared State policy is to
conserve, develop, promote, and popularize the nation's historical and cultural heritage and resources. [99] Towards this end,
means shall be provided to strengthen people's nationalism, love of country, respect for its heroes and pride for the people's
accomplishments by reinforcing the importance of Philippine national and local history in daily life with the end in view of raising
social consciousness.[100] Utmost priority shall be given not only with the research on history but also its popularization. [101]

13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task Force on Violations of the Right to Life, Liberty
II.
and Security of the Members of the Media)
The President's decision to bury Marcos at the LNMB is not done whimsically, capriciously or arbitrarily, out of malice,
Finally, the Congress passed the following laws affecting human rights:
ill will or personal bias
1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodia/Investigation
as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations
Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a sacred and hallowed place and a revered
Thereof)
national shrine where the mortal remains of our country's great men and women are interred for the inspiration and emulation
of the present generation and generations to come. They erred.
2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)
A. National Shrines
3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002)
As one of the cultural properties of the Philippines, national historical shrines (or historical shrines) refer to sites or structures
hallowed and revered for their history or association as declared by the NHCP.[102] The national shrines created by law and
4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
presidential issuance include, among others: Fort Santiago (Dambana ng Kalayaan) in Manila;[103] all battlefield areas in
Corregidor and Bataan;[104] the site of First Mass in the Philippines in Magallanes, Limasawa, Leyte;[105] Aguinaldo Shrine or
5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004) Freedom Shrine in Kawit, Cavite;[106] Fort San Antonio Abad National Shrine in Malate, Manila;[107] Tirad Pass National Shrine in
Ilocos Sur;[108] Ricarte Shrine[109] and Aglipay Shrine[110] in Batac, Ilocos Norte; Liberty Shrine in Lapu-Lapu, Cebu;[111] "Red
6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) Beach" or the landing point of General Douglas MacArthur and the liberating forces in Baras, Palo, Leyte; [112] Dapitan City as a
National Shrine City in Zamboanga Del Norte;[113] General Leandro Locsin Fullon National Shrine in Hamtic, Antique;[114] and
Mabini Shrine in Polytechnic University of the Philippines - Mabini Campus, Sta. Mesa, Manila.[115] As sites of the birth, exile,
7. Republic Act No. 9372 (Human Security Act of 2007) imprisonment, detention or death of great and eminent leaders of the nation, it is the policy of the Government to hold and keep
the national shrines as sacred and hallowed place.[116] P.O. No. 105[117] strictly prohibits and punishes by imprisonment and/or
8. Republic Act No. 9710 (The Magna Carta of Women) fine the desecration of national shrines by disturbing their peace and serenity through digging, excavating, defacing, causing
unnecessary noise, and committing unbecoming acts within their premises. R.A. No. 10066 also makes it punishable to
9. Republic Act No. 9745 (Anti-Torture Act of 2009) intentionally modify, alter, or destroy the original features of, or undertake construction or real estate development in any
national shrine, monument, landmark and other historic edifices and structures, declared, classified, and marked by the NHCP as
such, without the prior written permission from the National Commission for Culture and the Arts (NCAA).[118]
10. Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity) As one of the cultural agencies attached to the NCAA,[119] the NHCP manages, maintains and administers national shrines,
monuments, historical sites, edifices and landmarks of significant historico-cultural value.[120] In particular, the NHCP Board has
11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act of 2010) the power to approve the declaration of historic structures and sites, such as national shrines, monuments, landmarks and
heritage houses and to determine the manner of their identification, maintenance, restoration, conservation, preservation and
protection.[121]
12. Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012)
Excluded, however, from the jurisdiction of the NHCP are the military memorials and battle monuments declared as national
13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012) shrines, which have been under the administration, maintenance and development of the Philippine Veterans Affairs Office
(PVAO) of the DND. Among the military shrines are: Mt. Samat National Shrine in Pilar, Bataan;[122] Kiangan War Memorial Shrine
in Linda, Kiangan, Ifugao;[123] Capas National Shrine in Capas, Tarlac;[124] Ricarte National Shrine in Malasin, Batac, Ilocos
Norte;[125] Balantang Memorial Cemetery National Shrine in Jaro, Iloilo; [126] Balete Pass National Shrine in Sta. Fe, Nueva
Vizcaya;[127] USAFIP, NL Military Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;[128] and the LNMB in Taguig City, Metro
Manila.[129]
B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for the death of thousands of Filipinos. Several places served as
grounds for the war dead, such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other places throughout
the country. The Republic Memorial Cemetery, in particular, was established in May 1947 as a fitting tribute and final resting
place of Filipino military personnel who died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77, which ordered "the remains of the war dead interred
at the Bataan Memorial Cemetery, Bataan Province, and at other places in the Philippines, be transferred to, and reinterred at, the
Republic Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to minimize the expenses for the maintenance and
upkeep, and to make the remains accessible to the widows, parents, children, relatives, and friends.
On October 27, 1954, President Magsaysay issued Proclamation No. 86, which changed the name of Republic Memorial Cemetery
to Libingan Ng Mga Bayani to symbolize "the cause for which our soldiers have died" and to "truly express the nations esteem and
reverence for her war dead."[130]
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under the
administration of the AFP Chief of Staff, the land where LNMB is located. The LNMB was part of a military reservation site then
known as Fort Wm McKinley (now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the LNMB from the Fort Bonifacio military reservation
and reserved the LNMB for national shrine purposes under the administration of the National Shrines Commission (NSC) under
the DND.
On September 24, 1972, Marcos, in the exercise of his powers as the AFP Commander-in-Chief, and pursuant to Proclamation No.
1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, as amended, issued Presidential Decree
(P.D.) No. 1 which reorganized the Executive Branch of the National Government through the adoption of the Integrated
Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished the NSC and its functions together with
applicable appropriations, records, equipment, property and such personnel as may be necessary were transferred to the NHI
under the Department of Education (DEC). The NHI was responsible for promoting and preserving the Philippine cultural
heritage by undertaking, inter alia, studies on Philippine history and national heroes and maintaining national shrines and
monuments.[131]
Pending the organization of the DEC, the functions relative to the administration, maintenance and development of national
shrines tentatively integrated into the PVAO in July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article XV, Chapter I, Part XII of the IRP was repealed on
the grounds that "the administration, maintenance and development of national shrines consisting of military memorials or battle
monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the
latter s greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter
or significance of said national shrines." Henceforth, the PVAO through the Military Shrines Service (MSS), which was created to
perform the functions of the abolished NSC - would administer, maintain and develop military memorials and battle monuments
proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code retains PVAO under the supervision and
control of the Secretary of National Defense.[132] Among others, PVAO shall administer, develop and maintain military
shrines.[133] With the approval of PVAO Rationalization Plan on June 29, 2010, pursuant to E.O. No. 366 dated October 4, 2004,
MSS was renamed to Veterans Memorial and Historical Division, under the supervision and control of PVAO, which is presently
tasked with the management and development of military shrines and the perpetuation of the heroic deeds of our nation's
veterans.
As a national military shrine, the main features, structures, and facilities of the LNMB are as follows:
1. Tomb of the Unknown Soldiers - The main structure constructed at the center of the cemetery where wreath
laying ceremonies are held when Philippine government officials and foreign dignitaries visit the LNMB. The
following inscription is found on the tomb: "Here lies a Filipino soldier whose name is known only to God." Behind
the tomb are three marble pillars representing the three main island groups of the Philippines - Luzon, Visayas
and Mindanao. Buried here were the remains of 39,000 Filipino soldiers who were originally buried in Camp
O'Donnell Concentration Camp and Fort Santiago, Intramuros, Manila.
2. Heroes Memorial Gate - A structure shaped in the form of a large concrete tripod with a stairway leading to an
upper view deck and a metal sculpture at the center. This is the first imposing structure one sees upon entering
the grounds of the cemetery complex.
3. Black Stone Walls - Erected on opposite sides of the main entrance road leading to the Tomb of the Unknown
Soldiers and just near the Heroes Memorial are two 12-foot high black stone walls which bear the words, "I do not
know the dignity of his birth, but I do know the glory of his death." that General Douglas MacArthur made during
his sentimental journey to the Philippines in 1961.
4. Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated on April 5, 1977 by Secretary Renato S. De
Villa in memory of the defenders of Bataan and Corregidor during World War II. This monument is dedicated as
an eternal acknowledgment of their valor and sacrifice in defense of the Philippines.
5. Korean Memorial Pylon - A towering monument honoring the 112 Filipino officers and men who, as members
of the Philippine Expeditionary Forces to Korea (PEFTOK), perished during the Korean War.
6. Vietnam Veterans Memorial Pylon - Dedicated to the members of the Philippine contingents and Philippine
civic action groups to Vietnam (PHILCON-V and PHILCAG-V) who served as medical, dental, engineering
construction, community and psychological workers, and security complement. They offered tremendous
sacrifices as they alleviated human suffering in war-ravaged Vietnam from 1964-1971. Inscribed on the memorial
pylon are the words: "To build and not to destroy, to bring the Vietnamese people happiness and not sorrow, to
develop goodwill and not hatred."
7. Philippine World War II Guerillas Pylon - Erected by the Veterans Federation of the Philippines as a testimony
to the indomitable spirit and bravery of the Filipino guerillas of World War II who refused to be cowed into
submission and carried on the fight for freedom against an enemy with vastly superior arms and under almost
insurmountable odds. Their hardship and sufferings, as well as their defeats and victories, are enshrined in this
memorial.[134]
Contrary to the dissent, P.D. No. 105[135] does not apply to the LNMB. Despite the fact that P.D. No. 208 predated P.D. No.
105,[136] the LNMB was not expressly included in the national shrines enumerated in the latter.[137] The proposition that the
LNMB is implicitly covered in the catchall phrase "and others which may be proclaimed in the future as National Shrines" is
erroneous because:
(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem generis,[138] the LNMB is not a site "of the birth, exile,
imprisonment, detention or death of great and eminent leaders of the nation." What P.D. No. 105 contemplates are the following
national shrines: Fort Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan, the site of First Mass in
the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass National Shrine, Ricarte
Shrine, Aglipay Shrine, Liberty Shrine, "Red Beach" or the landing point of General Douglas MacArthur and the liberating forces,
Dapitan City, General Leandro Locsin Fullon National Shrine, and Mabini Shrine. Excluded are the military memorials and battle
monuments declared as national shrines under the PVAO, such as: Mt. Samat National Shrine, Kiangan War Memorial Shrine,
Capas National Shrine, Ricarte National Shrine, Balantang Memorial Cemetery National Shrine, Balete Pass National Shrine;
USAFIP, NL Military Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of the PVAO. While P.D. No. 1 dated
September 24, 1972 transferred the administration, maintenance and development of national shrines to the NHI under the DEC,
it never actually materialized. Pending the organization of the DEC, its functions relative to national shrines were tentatively
integrated into the PVAO in July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No. 1076. The PVAO, through the MSS,
was tasked to administer, maintain, and develop military memorials and battle monuments proclaimed as national shrines. The
reasons being that "the administration, maintenance and development of national shrines consisting of military memorials or battle
monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the
latter's greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter
or significance of said national shrines."
The foregoing interpretation is neither narrow and myopic nor downright error. Instead, it is consistent with the letter and intent
of P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed" refer to the LNMB as a place and not to
each and every mortal remains interred therein. Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a
revered and respected ground. Neither does it negate the presumed individual or collective "heroism" of the men and women
buried or will be buried therein. The "nations esteem and reverence for her war dead," as originally contemplated by President
Magsaysay in issuing Proclamation No. 86, still stands unaffected. That being said, the interment of Marcos, therefore, does not
constitute a violation of the physical, historical, and cultural integrity of the LNMB as a national military shrine.
At this juncture, reference should be made to Arlington National Cemetery (Arlington), which is identical to the LNMB in terms of
its prominence in the U.S. It is not amiss to point that our armed forces have been patterned after the U.S. and that its military
code produced a salutary effect in the Philippines' military justice system.[139] Hence, relevant military rules, regulations, and
practices of the U.S. have persuasive, if not the same, effect in this jurisdiction.
As one of the U.S. Army national military cemeteries,[140] the Arlington is under the jurisdiction of the Department of the
Army.[141] The Secretary of the U.S. Army has the responsibility to develop, operate, manage, administer, oversee, and fund the
Army national military cemeteries in a manner and to standards that fully honor the service and sacrifices of the deceased
members of the armed forces buried or inurned therein, and shall prescribe such regulations and policies as may be necessary to
administer the cemeteries.[142] In addition, the Secretary of the U.S. Army is empowered to appoint an advisory committee, which
shall make periodic reports and recommendations as well as advise the Secretary with respect to the administration of the
cemetery, the erection of memorials at the cemetery, and master planning for the cemetery.[143]
Similar to the Philippines, the U.S. national cemeteries are established as national shrines in tribute to the gallant dead who have
served in the U.S. Armed Forces.[144] The areas are protected, managed and administered as suitable and dignified burial grounds
and as significant cultural resources.[145] As such, the authorization of activities that take place therein is limited to those that are
consistent with applicable legislation and that are compatible with maintaining their solemn commemorative and historic
character.[146]
The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to administer, develop, and
maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is under the Office of the President.
The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and
does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature.[147] This is
why President Duterte is not bound by the alleged 1992 Agreement[148] between former President Ramos and the Marcos family
to have the remains of Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free to amend, revoke or rescind
political agreements entered into by his predecessors, and to determine policies which he considers, based on informed judgment
and presumed wisdom, will be most effective in carrying out his mandate.
Moreover, under the Administrative Code, the President has the power to reserve for public use and for specific public purposes
any of the lands of the public domain and that the reserved land shall remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation.[149] At present, there is no law or executive issuance specifically excluding the land in
which the LNMB is located from the use it was originally intended by the past Presidents. The allotment of a cemetery plot at the
LNMB for Marcos as a former President and Commander-in-Chief,[150] a legislator,[151] a Secretary of National Defense,[152] a
military personnel,[153] a veteran,[154] and a Medal of Valor awardee,[155] whether recognizing his contributions or simply his
status as such, satisfies the public use requirement. The disbursement of public funds to cover the expenses incidental to the
burial is granted to compensate him for valuable public services rendered.[156] Likewise, President Duterte's determination to
have Marcos' remains interred at the LNMB was inspired by his desire for national healing and reconciliation. Presumption of
regularity in the performance of official duty prevails over petitioners' highly disputed factual allegation that, in the guise of
exercising a presidential prerogative, the Chief Executive is actually motivated by utang na loob (debt of gratitude) and bayad
utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the factual
basis of their claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who may and may not be interred at the LNMB underscores the
nature and purpose of the LNMB as an active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of the President and by order of the Secretary of
National Defense, issued General Orders No. 111, which constituted and activated, as of said date, the Graves Registration Platoon
as a unit of the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-371
(Administrative and Special Staff Services, Grave Registration Service), which provided that the following may be interred in the
LNMB: (a) World War II dead of the AFP and recognized guerillas; (b) Current dead of the AFP; (c) Retired military personnel of
the AFP; (d) Remains of former members of the AFP who died while in the active service and in the Retired List of the AFP now
interred at different cemeteries and other places throughout the Philippines or the Secretary of National Defense; and (e) Others
upon approval of the Congress of the Philippines, the President of the Philippines or the Secretary of National Defense. The
regulation also stated that the AFP Quartermaster General will be responsible for, among other matters, the efficient operation of
the Graves Registration Service; the interment, disinterment and reinterment of the dead mentioned above; and preservation of
military cemeteries, national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-372
(Administration and Operation of AFP Graves Registration Installations), which superseded AFP Regulations G 161-371. It
provided that the following may be interred in the LNMB: (a) Deceased Veterans of the Philippine Revolution of 1896/World War
I; (b) Deceased World War II members of the AFP and recognized guerillas; (c) Deceased military personnel of the AFP who died
while in the active duty; (d) Deceased retired military personnel of the AFP; (e) Deceased military personnel of the AFP interred
at different cemeteries and other places outside the LNMB; and (f) Such remains of persons as the Commander-in-Chief of the
AFP may direct. The remains of the following were not allowed to be interred in the LNMB: (a) The spouse of an active, or retired,
deceased military personnel, recognized guerillas who himself/herself is not a military personnel; and (b) AFP personnel who
were retireable but separated/reverted/discharged for cause, or joined and aided the enemy of the Republic of the Philippines, or
were convicted of capital or other criminal offenses, involving moral turpitude. The regulation also stated that the Quartermaster
General shall be responsible for, among other matters, the efficient operation of the AFP graves registration installations; the
interment, disinterment and reinterment of deceased military personnel mentioned above; and the preservation of military
cemeteries, proper marking and official recording of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense Minister, issued AFP Regulations G 161-373
(Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-372. It enumerated a list
of deceased person who may be interred at the LNMB, namely: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-
Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired
military personnel of the AFP; (g) Veterans of Philippine Revolution of 1896, WWI, WWII and recognized guerillas; and (h)
Government Dignitaries, Statesmen, National Artist and other deceased persons whose interment or reinterment has been
approved by the Commander-in-Chief, Batasang Pambansa or the Minister of National Defense. The regulation also stated that
the Quartermaster General shall be responsible for the allocation of specific section/areas for the said deceased persons, while
the Commanding Officer of the Quartermaster Graves Registration Company shall be charged with the preparation of grave sites,
supervision of burials at LNMB and the registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-374
(Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-373. It provided that the
following may be interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-inChief, AFP; (c) Secretaries
of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the
AFP; (g) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (h) Government Dignitaries, Statesmen,
National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief,
Congress or Secretary of National Defense; and (i) Former Presidents, Secretaries of Defense, CSAFP, Generals/Flag Officers,
Dignitaries, Statesmen, National Artists, widows of former Presidents, Secretaries of National Defense and Chief of Staff. The
remains of the following were not allowed to be interred in the LNMB: (a) Personnel who were dishonorably
separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an
offense involving moral turpitude. Like AFP Regulations G 161-373, it stated that the Quartermaster General shall be responsible
for the allocation of specific section/areas for the deceased persons, whereas the Commanding Officer of the Quartermaster
Graves Registration Unit shall be charged with the preparation of grave sites, supervision of burials, and the registration of
graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of National Defense, issued AFP Regulations G
161-375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-374. The
regulation stated that the Chief of Staff shall be responsible for the issuance of interment directive for all active military
personnel for interment, authorized personnel (such as those former members of the AFP who laterally entered or joined the
Philippine Coast Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans and reservists enumerated therein.
The Quartermaster General is tasked to exercise over-all supervision in the implementation of the regulation and the Commander
ASCOM, PA through the Commanding Officer of Grave Services Unit is charged with the registration of the deceased/graves, the
allocation of specific section/area at the LNMB for interment of deceased, the preparation of grave sites, and the supervision of
burials.
Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a) Medal of Valor Awardees; (b)
Presidents or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of
the AFP; (f) Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active
reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities; (g) Former members of
the AFP who laterally entered or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890, WWI, WWII and
recognized guerillas; (i) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or
reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and G) Former
Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National
Defense and Chief of Staff. Similar to AFP Regulations G 161-374, the following are not qualified to be interred in the LNMB: (a)
Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were
convicted by final judgment of an offense involving moral turpitude.
In the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole authority in
determining who are entitled and disqualified to be interred at the LNMB. Interestingly, even if they were empowered to do so,
former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who were themselves aggrieved at the Martial Law, did
not revise the rules by expressly prohibiting the burial of Marcos at the LNMB. The validity of AFP Regulations G 161-375 must,
therefor, be sustained for having been issued by the AFP Chief of Staff acting under the direction of the Secretary of National
Defense, who is the alter ego of the President.
x x x In Joson v. Torres, we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limit
in this wise:
Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.) [157]
It has been held that an administrative regulation adopted pursuant to law has the force and effect of law and, until set aside, is
binding upon executive and administrative agencies, including the President as the chief executor of laws. [158]
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the absence of clear and unmistakable showing that it has been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction. Neither could it be considered ultra vires for
purportedly providing incomplete, whimsical, and capricious standards for qualification for burial at the LNMB.
To compare, We again refer to the U.S. Army regulations on Arlington. In the U.S., the Secretary of the Army, with the approval of
the Secretary of Defense, determines eligibility for interment or inurnment in the Army national military cemeteries. [159] Effective
October 26, 2016, the rule[160] is as follows:
Only those who qualify as a primarily eligible person or a derivatively eligible person are eligible for interment in Arlington
National Cemetery, unless otherwise prohibited as provided for in §§ 553.19 [161]-553.20,[162] provided that the last period of
active duty of the service member or veteran ended with an honorable discharge.
(a) Primarily eligible persons. The following are primarily eligible persons for purposes of interment:
(1) Any service member who dies on active duty in the U.S. Armed Forces (except those service members serving on active duty
for training only), if the General Courts Martial Convening Authority grants a certificate of honorable service.
(2) Any veteran retired from a Reserve component who served a period of active duty (other than for training), is carried on the
official retired list, and is entitled to receive military retired pay.
(3) Any veteran retired from active military service and entitled to receive military retired pay.
(4) Any veteran who received an honorable discharge from the Armed Forces prior to October 1, 1949, who was discharged for a
permanent physical disability, who served on active duty (other than for training), and who would have been eligible for
retirement under the provisions of 10 U.S.C. 1201 had the statute been in effect on the date of separation.
(5) Any veteran awarded one of the following decorations:
(i) Medal of Honor;[163]
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;
(iii) Distinguished Service Medal;
(iv) Silver Star; or
(v) Purple Heart.
(6) Any veteran who served on active duty (other than active duty for training) and who held any of the following positions:
(i) President or Vice President of the United States;
(ii) Elected member of the U.S. Congress;
(iii) Chief Justice of the Supreme Court of the United States or Associate Justice of the Supreme Court of the United States;
(iv) A position listed, at the time the person held the position, in 5 U.S.C. 5312 [164] or 5313[165] (Levels I and II of the Executive
Schedule); or
(v) Chief of Mission of a Category 4, 5, or post if the Department of State classified that post as a Category 4, 5, or 5+ post during
the person's tenure as Chief of Mission.
(7) Any former prisoner of war who, while a prisoner of war, served honorably in the active military service, and who died on or
after November 30, 1993.
(b) Derivatively eligible persons. The following individuals are derivatively eligible persons for purposes of interment who may
be interred if space is available in the gravesite of the primarily eligible person:
(1) The spouse of a primarily eligible person who is or will be interred in Arlington National Cemetery. A former spouse of a
primarily eligible person is not eligible for interment in Arlington National Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible veteran, who was:
(i) Lost or buried at sea, temporarily interred overseas due to action by the Government, or officially determined to be missing in
action;
(ii) Buried in a U.S. military cemetery maintained by the American Battle Monuments Commission; or
(iii) Interred in Arlington National Cemetery as part of a group burial (the derivatively eligible spouse may not be buried in the
group burial gravesite).
(3) The parents of a minor child or a permanently dependent adult child, whose remains were interred in Arlington National
Cemetery based on the eligibility of a parent at the time of the child's death, unless eligibility of the non-service connected parent
is lost through divorce from the primarily eligible parent.
(4) An honorably discharged veteran who does not qualify as a primarily eligible person, if the veteran will be buried in the same
gravesite as an already interred primarily eligible person who is a close relative, where the interment meets the following
conditions:
(i) The veteran is without minor or unmarried adult dependent children;
(ii) The veteran will not occupy space reserved for the spouse, a minor child, or a permanently dependent adult child;
(iii) All other close relatives of the primarily eligible person concur with the interment of the veteran with the primarily eligible
person by signing a notarized statement;
(iv) The veteran's spouse waives any entitlement to interment in Arlington National Cemetery, where such entitlement might be
based on the veteran's interment in Arlington National Cemetery. The Executive Director may set aside the spouse's waiver,
provided space is available in the same gravesite, and all close relatives of the primarily eligible person concur;

(v) Any cost of moving, recasketing, or revaulting the remains will be paid from private funds.
There is a separate list of eligible with respect to the inurnment of cremated remains in the Columbarium, [166] interment of
cremated remains in the Unmarked Area,[167] and group burial.[168] As a national military cemetery, eligibility standards for
interment, inurnment, or memorialization in Arlington are based on honorable military service.[169] Exceptions to the eligibility
standards for new graves, which are rarely granted, are for those persons who have made significant contributions that
directly and substantially benefited the U.S. military.[170]
Judging from the foregoing, it is glaring that the U.S. Army regulations on Arlington and the AFP Regulations G 161-375 on the
LNMB, as a general rule, recognize and reward the military services or military related activities of the deceased. Compared with
the latter, however, the former is actually less generous in granting the privilege of interment since only the spouse or parent,
under certain conditions, may be allowed "if space is available in the gravesite of the primarily eligible person."
It is not contrary to the "well-established custom," as the dissent described it, to argue that the word "bayani" in the LNMB has
become a misnomer since while a symbolism of heroism may attach to the LNMB as a national shrine for military memorial, the
same does not automatically attach to its feature as a military cemetery and to those who were already laid or will be laid therein.
As stated, the purpose of the LNMB, both from the legal and historical perspectives, has neither been to confer to the people
buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." In fact, the privilege
of internment at the LNMB has been loosen up through the years. Since 1986, the list of eligible includes not only those who
rendered active military service or military-related activities but also non-military personnel who were recognized for their
significant contributions to the Philippine society (such as government dignitaries, statesmen, national artists, and other
deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of
National Defense). In 1998, the widows of former Presidents, Secretaries of National Defense and Chief of Staff were added to the
list. Whether or not the extension of burial privilege to civilians is unwarranted and should be restricted in order to be consistent
with the original purpose of the LNMB is immaterial and irrelevant to the issue at bar since it is indubitable that Marcos had
rendered significant active military service and military-related activities.
Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of National
Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and corrupt
practices, we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to be
acknowledged based on the other positions he held or the awards he received. In this sense, We agree with the proposition that
Marcos should be viewed and judged in his totality as a person. While he was not all good, he was not pure evil either. Certainly,
just a human who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No. 9049 [171] declares the policy of the State
"to consistently honor its military heroes in order to strengthen the patriotic spirit and nationalist consciousness of the
military."[172] For the "supreme self-sacrifice and distinctive acts of heroism and gallantry,"[173] a Medal of Valor awardee or his/her
dependents/heirs/beneficiaries are entitled to the following social services and financial rewards:
1. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos (P20,000.00), which is separate and distinct
from any salary or pension that the awardee currently receives or will receive from the government of the
Philippines;[174]
2. Precedence in employment in government agencies or government-owned or controlled corporation, if the job
qualifications or requirements are met;
3. Priority in the approval of the awardee's housing application under existing housing programs of the
government;
4. Priority in the acquisition of public lands under the Public Land Act and preferential right in the lease of pasture
lands and exploitation of natural resources;
5. Privilege of obtaining loans in an aggregate amount not exceeding Five Hundred Thousand Pesos (P500,000.00)
from governmentowned or controlled financial institutions without having to put up any collateral or constitute
any pledge or mortgage to secure the payment of the loan;
6. Twenty (20%) percent discount from all establishments relative to utilization of transportation services, hotels
and similar lodging establishments, restaurants, recreation and sport centers and purchase of medicine
anywhere in the country;
7. Twenty (20%) percent discount on admission fees charged by theaters, cinema houses and concert halls,
circuses, carnivals and other similar places of culture, leisure and amusement;
8. Free medical and dental services and consultation in hospital and clinics anywhere in the country;
9. Exemption from the payment of tuition and matriculation fees in public or private schools, universities, colleges
and other educational institutions in any pre-school, baccalaureate or post graduate courses such as or including
course leading to the degree of Doctor of Medicine (MD), Bachelor of Laws (LLB), and Bachelor of Science in
Nursing (BSN) or allied and similar courses; and
10. If interested and qualified, a quota is given to join the cadet corps of the Philippine Military Academy or otherwise
priority for direct commission, call to active duty (CAD) and/or enlistment in regular force of the AFP.
On the other hand, in recognizing their patriotic services in times of war and peace for the cause of freedom and democracy; for
the attainment of national unity, independence, and socioeconomic advancement; and for the maintenance of peace and
order,[175] R.A. No. 6948, as amended,[176] grants our veterans[177] and their dependents or survivors with pension (old age,
disability, total administrative disability, and death) and non-pension (burial, education, hospitalization, and medical care and
treatment) benefits as well as provisions from the local governments. Under the law, the benefits may be withheld if the
Commission on Human Rights certifies to the AFP General Headquarters that the veteran has been found guilty by final
judgment of a gross human rights violation while in the service, but this factor shall not be considered taken against his next of
kin.[178]
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed none of the disqualifications stated in AFP Regulations G 161-
375. He was neither convicted by final judgment of the offense involving moral turpitude nor dishonorably
separated/reverted/discharged from active military service.
Petitioners, however, protest that a narrow interpretation of the AFP regulations disregards historical context and the rule on
statutory construction. They urge the Court to construe statutes not literally but according to their spirit and reason.
It is argued that Marcos committed offenses involving moral turpitude for his gross human rights violations, massive graft and
corruption, and dubious military records, as found by foreign and local courts as well as administrative agencies. By going into
exile, he deliberately evaded liability for his actions. And by allowing death to overtake him, he inevitably escaped the prospect of
facing accountability for his crimes. They also contend that his removal in the 1986 popular uprising is a clear sign of his
discharge from the AFP. The People Power Revolution was the direct exercise of the Filipinos' power to overthrow an illegitimate
and oppressive regime. As a sovereign act, it necessarily includes the power to adjudge him as dishonorably discharged from the
AFP.
Furthermore, according to petitioners, to limit the application of the disqualifying provisions of AFP Regulations G 161-375 only
to soldiers would be unfair (since, unlike Presidents, soldiers have an additional cause for disqualification) and lead to absurd
results (because soldiers who were dishonorably discharged would be disqualified for acts that are less atrocious than that
committed by Marcos). Also, the AFP regulations would place Marcos in the same class as the other Philippine Presidents when in
fact he is a class of his own, sui generis. The other Presidents were never removed by People Power Revolution and were never
subject of laws declaring them to have committed human rights violations. Thus, the intended burial would be an act of similarly
treating persons who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of any
offense involving moral turpitude. No less than the 1987 Constitution mandates that a person shall not be held to answer for a
criminal offense without due process of law and that, "[i]n all criminal prosecutions, the accused shall be presum innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his behalf."[179] Even the U.N. principles on
reparation and to combat impunity cited by petitioners unequivocally guarantee the rights of the accused, providing that:
XIII. Rights of others
27. Nothing in this document is to be construed as derogating from internationally or nationally protected rights of others, in
particular the right of an accused person to benefit from applicable standards of due process.
xxx
 instance, to divine the exact implications or significance of the number of votes obtained in elections, or the message from the
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED number of participants in public assemblies. If the Court is not to fall into the pitfalls of getting embroiled in political and
oftentimes emotional, if not acrimonious, debates, it must remain steadfast in abiding by its recognized guiding stars - clear
Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees: constitutional and legal rules - not by the uncertain, ambiguous and confusing messages from the actions of the people.

(a) The commission must try to corroborate information implicating individuals before they are named publicly;
(b) The individuals implicated shall be afforded an opportunity to provide a statement setting forth their version of the facts
either at a hearing convened by the commission while conducting its investigation or through submission of a document
equivalent to a right of reply for inclusion in the commission's file.
To note, in the U.S., a person found to have committed a Federal or State capital crime (i.e., a crime which a sentence of
imprisonment for life or death penalty may be imposed) but who has not been convicted by reason of not being available for trial
due to death or flight to avoid prosecution, may be ineligible for interment, inurnment, or memorialization in an Army national
military cemetery. Nevertheless, such ineligibility must still observe the procedures specified in § 553.21.[180]
The various cases cited by petitiOners, which were decided with finality by courts here and abroad, have no bearing in this case
since they are merely civil in nature; hence, cannot and do not establish moral turpitude.
Also, the equal protection clause is not violated. Generally, there is no property right to safeguard because even if one is eligible to
be buried at the LNMB, such fact would only give him or her the privilege to be interred therein. Unless there is a favorable
recommendation from the Commander-in-Chief, the Congress or the Secretary of National Defense, no right can be said to have
ripen. Until then, such inchoate right is not legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of equal protection clause are not met.[181] In this case, there is a
real and substantial distinction between a military personnel and a former President. The conditions of dishonorable discharge
under the Articles of War[182] attach only to the members of the military. There is also no substantial distinction between Marcos
and the three Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia, and Macapagal). All of them were not
convicted of a crime involving moral turpitude. In addition, the classification between a military personnel and a former
President is germane to the purposes of Proclamation No. 208 and P.D. No. 1076. While the LNMB is a national shrine
for military memorials, it is also an active military cemetery that recognizes the status or position held by the persons interred
therein.
Conclusion
In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or
excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the
judgment of another branch. Truly, the President's discretion is not totally unfettered. "Discretion is not a freespirited stallion
that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, 'discretion is not
unconfined and vagrant' but 'canalized within banks that keep it from overflowing.'"[186] At bar, President Duterte, through the
public respondents, acted within the bounds of the law and jurisprudence. Notwithstanding the call of human rights advocates,
the Court must uphold what is legal and just. And that is not to deny Marcos of his rightful place at the LNMB. For even the
Framers of our Constitution intend that full respect for human rights is available at any stage of a person's development, from the
time he or she becomes a person to the time he or she leaves this earth.[187]
There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in
accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the
sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the
country must mov'e on and let this issue rest.
WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the Status Quo Ante Order is hereby LIFTED.

Likewise, Marcos was honorably discharged from military service. PVAO expressly recognized him as a retired veteran pursuant
to R.A. No. 6948, as amended. Petitioners have not shown that he was dishonorably discharged from military service under AFP
Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term of Enlistment) for violating Articles 94, 95 and
97 of the Articles of War.[183] The NHCP study[184] is incomplete with respect to his entire military career as it failed to cite and
include the official records of the AFP.

With respect to the phrase "[p]ersonnel who were dishonorably separated/reverted/discharged from the service," the same should
be viewed in light of the definition provided by AFP Regulations G 161-375 to the term "active service" which is "[s]ervice
rendered by a military person as a Commissioned Officer, enlisted man/woman, probationary officer, trainee or draftee in the Armed
Forces of the Philippines and service rendered by him/her as a civilian official or employee in the Philippine Government prior to the
date of his/her separation or retirement from the Armed Forces of the Philippines, for which military and/or civilian service he/she
shall have received pay from the Philippine Government, and/or such others as may be hereafter be prescribed by law as active
service (PD 1638, as amended)."[185] To my mind, the word "service" should be construed as that rendered by a military person in
the AFP, including civil service, from the time of his/her commission, enlistment, probation, training or drafting, up to the date of
his/her separation or retirement from the AFP. Civil service after honorable separation and retirement from the AFP is outside
the context of "service" under AFP Regulations G 161-375.

Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during the EDSA Revolution is tantamount to
his dishonorable separation, reversion or discharge from the military service. The fact that the President is the Commander-in-
Chief of the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian authority over the military. Not
being a military person who may be prosecuted before the court martial, the President can hardly be deemed "dishonorably
separated/reverted/discharged from the service" as contemplated by AFP Regulations G 161-375. Dishonorable discharge through
a successful revolution is an extra-constitutional and direct sovereign act of the people which is beyond the ambit of judicial
review, let alone a mere administrative regulation.

It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said
political act of the people should not be automatically given a particular legal meaning other than its obvious consequence- that
of ousting him as president. To do otherwise would lead the Court to the treacherous and perilous path of having to make choices
from multifarious inferences or theories arising from the various acts of the people. It is not the function of the Court, for
Carino vs. Insular Government 212 U.S. 449 (1909)
Writ of error is the general, and appeal the exceptional, method of bringing Cases to this Court. The latter method is in the main
confined to equity cases, and the former is proper to bring up a judgment of the Supreme Court of the Philippine Islands affirming
a judgment of the Court of Land Registration dismissing an application for registration of land.
Although a province may be excepted from the operation of Act No. 926 of 1903 of the Philippine Commission which provides for
the registration and perfecting of new titles, one who actually owns property in such province is entitled to registration under Act
No. 496 of 1902, which applies to the whole archipelago.
While, in legal theory and as against foreign nations, sovereignty is absolute, practically it is a question of strength and of varying
degree, and it is for a new sovereign to decide how far it will insist upon theoretical relations of the subject to the former
sovereign and how far it will recognize actual facts.
Page 212 U. S. 450
The acquisition of the Philippines was not for the purpose of acquiring the lands occupied by the inhabitants, and under the
Organic Act of July 1, 1902, c. 1369, 32 Stat. 691, providing that property rights are to be administered for the benefit of the
inhabitants, one who actually owned land for many years cannot be deprived of it for failure to comply with certain ceremonies
prescribed either by the acts of the Philippine Commission or by Spanish law.
The Organic Act of the Philippines made a bill of rights embodying safeguards of the Constitution, and, like the Constitution,
extends those safeguards to all.
Every presumption of ownership is in favor of one actually occupying land for many years, and against the government which
seeks to deprive him of it, for failure to comply with provisions of a subsequently enacted registration act.
Title by prescription against the crown existed under Spanish law in force in the Philippine Islands prior to their acquisition by
the United States, and one occupying land in the Province of Benguet for more than fifty years before the Treaty of Paris is
entitled to the continued possession thereof.
7 Phil. 132 reversed.
The facts are stated in the opinion.
Page 212 U. S. 455
MR. JUSTICE HOLMES delivered the opinion of the Court.
This was an application to the Philippine Court of Land Registration for the registration of certain land. The application was
granted by the court on March 4, 1904. An appeal was taken to the Court of First Instance of the Province of Benguet on behalf of
the government of the Philippines, and also on behalf of the United States, those governments having taken possession of the
property for public and military purposes. The Court of First Instance found the facts and dismissed the application upon grounds
of law. This judgment was affirmed by the supreme court, 7 Phil. 132, and the case then was brought here by writ of error.
The material facts found are very few. The applicant and plaintiff in error is an Igorot of the Province of Benguet, where the land
lies. For more than fifty years before the Treaty of
Page 212 U. S. 456
Paris, April 11, 1899, as far back as the findings go, the plaintiff and his ancestors had held the land as owners. His grandfather
had lived upon it, and had maintained fences sufficient for the holding of cattle, according to the custom of the country, some of
the fences, it seems, having been of much earlier date. His father had cultivated parts and had used parts for pasturing cattle, and
he had used it for pasture in his turn. They all had been recognized as owners by the Igorots, and he had inherited or received the
land from his father in accordance with Igorot custom. No document of title, however, had issued from the Spanish Crown, and
although, in 1893-1894 and again in 1896-1897, he made application for one under the royal decrees then in force, nothing
seems to have come of it, unless, perhaps, information that lands in Benguet could not be conceded until those to be occupied for
a sanatorium, etc., had been designated -- a purpose that has been carried out by the Philippine government and the United
States. In 1901, the plaintiff filed a petition, alleging ownership, under the mortgage law, and the lands were registered to him,
that process, however, establishing only a possessory title, it is said.
Before we deal with the merits, we must dispose of a technical point. The government has spent some energy in maintaining that
this case should have been brought up by appeal, and not by writ of error. We are of opinion, however, that the mode adopted
was right. The proceeding for registration is likened to bills in equity to quiet title, but it is different in principle. It is a
proceeding in rem under a statute of the type of the Torrens Act, such as was discussed in Tyler v. Court of Registration, 175 Mass.
71. It is nearer to law than to equity, and is an assertion of legal title; but we think it unnecessary to put it into either pigeon hole.
A writ of error is the general method of bringing cases to this Court, an appeal the exception, confined to equity in the main. There
is no reason for not applying the general rule to this case. Ormsby v. Webb, 134 U. S. 47, 134 U. S. 65; Campbell v. Porter, 162 U. S.
478; Metropolitan R. Co. v. District of Columbia, 195 U. S. 322.
Page 212 U. S. 457
Another preliminary matter may as well be disposed of here. It is suggested that, even if the applicant have title, he cannot have it
registered, because the Philippine Commission's Act No. 926, of 1903, excepts the Province of Benguet among others from its
operation. But that act deals with the acquisition of new titles by homestead entries, purchase, etc., and the perfecting of titles
begun under the Spanish law. The applicant's claim is that he now owns the land, and is entitled to registration under the
Philippine Commission's Act No. 496, of 1902, which established a court for that purpose with jurisdiction "throughout the
Philippine Archipelago," § 2, and authorized in general terms applications to be made by persons claiming to own the legal estate
in fee simple, as the applicant does. He is entitled to registration if his claim of ownership can be maintained.
We come, then, to the question on which the case was decided below -- namely, whether the plaintiff owns the land. The position
of the government, shortly stated, is that Spain assumed, asserted, and had title to all the land in the Philippines except so far as it
saw fit to permit private titles to be acquired; that there was no prescription against the Crown, and that, if there was, a decree of
June 25, 1880, required registration within a limited time to make the title good; that the plaintiff's land was not registered, and
therefore became, if it was not always, public land; that the United States succeeded to the title of Spain, and so that the plaintiff
has no rights that the Philippine government is bound to respect.
If we suppose for the moment that the government's contention is so far correct that the Crown of Spain in form asserted a title to
this land at the date of the Treaty of Paris, to which the United States succeeded, it is not to be assumed without argument that
the plaintiff's case is at an end. It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were
held from the Crown, and perhaps the general attitude of conquering nations toward people not recognized as entitled to the
treatment accorded to those
Page 212 U. S. 458
in the same zone of civilization with themselves. It is true also that, in legal theory, sovereignty is absolute, and that, as against
foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is
a question of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects
to the head in the past, and how far it shall recognize actual facts, are matters for it to decide.
The Province of Benguet was inhabited by a tribe that the Solicitor General, in his argument, characterized as a savage tribe that
never was brought under the civil or military government of the Spanish Crown. It seems probable, if not certain, that the Spanish
officials would not have granted to anyone in that province the registration to which formerly the plaintiff was entitled by the
Spanish laws, and which would have made his title beyond question good. Whatever may have been the technical position of
Spain, it does not follow that, in the view of the United States, he had lost all rights and was a mere trespasser when the present
government seized his land. The argument to that effect seems to amount to a denial of native titles throughout an important part
of the island of Luzon, at least, for the want of ceremonies which the Spaniards would not have permitted and had not the power
to enforce.
The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may
have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land. It is
obvious that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that,
so far as consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the
natives, not to exploit their country for private gain. By the Organic Act of July 1, 1902, c. 1369, § 12, 32 Stat. 691, all the property
and rights acquired there by the
Page 212 U. S. 459
United States are to be administered "for the benefit of the inhabitants thereof." It is reasonable to suppose that the attitude thus
assumed by the United States with regard to what was unquestionably its own is also its attitude in deciding what it will claim for
its own. The same statute made a bill of rights, embodying the safeguards of the Constitution, and, like the Constitution, extends
those safeguards to all. It provides that
"no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws."
§ 5. In the light of the declaration that we have quoted from § 12, it is hard to believe that the United States was ready to declare
in the next breath that "any person" did not embrace the inhabitants of Benguet, or that it meant by "property" only that which
had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to
treat as public land what they, by native custom and by long association -- one of the profoundest factors in human thought --
regarded as their own.
It is true that, by § 14, the government of the Philippines is empowered to enact rules and prescribe terms for perfecting titles to
public lands where some, but not all, Spanish conditions had been fulfilled, and to issue patents to natives for not more than
sixteen hectares of public lands actually occupied by the native or his ancestors before August 13, 1898. But this section perhaps
might be satisfied if confined to cases where the occupation was of land admitted to be public land, and had not continued for
such a length of time and under such circumstances as to give rise to the understanding that the occupants were owners at that
date. We hesitate to suppose that it was intended to declare every native who had not a paper title a trespasser, and to set the
claims of all the wilder tribes afloat. It is true again that there is excepted from the provision that we have quoted as to the
administration of the property and rights acquired by the United States such land and property as shall be designated by the
President for military or other reservations,
Page 212 U. S. 460
as this land since has been. But there still remains the question what property and rights the United States asserted itself to have
acquired.
Whatever the law upon these points may be, and we mean to go no further than the necessities of decision demand, every
presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper and sufficient to
say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private
ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been
public land. Certainly, in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give the applicant the
benefit of the doubt. Whether justice to the natives and the import of the organic act ought not to carry us beyond a subtle
examination of ancient texts, or perhaps even beyond the attitude of Spanish law, humane though it was, it is unnecessary to
decide. If, in a tacit way, it was assumed that the wild tribes of the Philippines were to be dealt with as the power and inclination
of the conqueror might dictate, Congress has not yet sanctioned the same course as the proper one "for the benefit of the
inhabitants thereof."
If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by that law as to
satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the counsel for the plaintiff in error
seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of any royal grant. In other
words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers, or even into tenants at will.
For instance, Book 4, Title 12, Law 14 of the Recopilacion de Leyes de las Indias, cited for a contrary conclusion in Valenton v.
Murciano, 3 Phil. 537, while it commands viceroys and others, when it seems proper, to call for the exhibition of grants, directs
them to confirm those who hold by good grants or justa prescripcion. It is true that it
Page 212 U. S. 461
begins by the characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors. That was
theory and discourse. The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond this
recognition in their books.
Prescription is mentioned again in the royal cedula of October 15, 1754, cited in 3 Phil. 546:
"Where such possessors shall not be able to produce title deeds, it shall be sufficient if they shall show that ancient possession, as
a valid title by prescription."
It may be that this means possession from before 1700; but, at all events, the principle is admitted. As prescription, even against
Crown lands, was recognized by the laws of Spain, we see no sufficient reason for hesitating to admit that it was recognized in the
Philippines in regard to lands over which Spain had only a paper sovereignty.
The question comes, however, on the decree of June 25, 1880, for the adjustment of royal lands wrongfully occupied by private
individuals in the Philippine Islands. This begins with the usual theoretic assertion that, for private ownership, there must have
been a grant by competent authority; but instantly descends to fact by providing that, for all legal effects, those who have been in
possession for certain times shall be deemed owners. For cultivated land, twenty years, uninterrupted, is enough. For
uncultivated, thirty. Art. 5. So that, when this decree went into effect, the applicant's father was owner of the land by the very
terms of the decree. But, it is said, the object of this law was to require the adjustment or registration proceedings that it
described, and in that way to require everyone to get a document of title or lose his land. That purpose may have been
entertained, but it does not appear clearly to have been applicable to all. The regulations purport to have been made "for the
adjustment of royal lands wrongfully occupied by private individuals." (We follow the translation in the government's brief.) It
does not appear that this land ever was royal land or wrongfully occupied. In Article 6, it is provided that
"interested parties not included within the two preceding
Page 212 U. S. 462
articles [the articles recognizing prescription of twenty and thirty years] may legalize their possession, and thereby acquire the
full ownership of the said lands, by means of adjustment proceedings, to be conducted in the following manner."
This seems, by its very terms, not to apply to those declared already to be owners by lapse of time. Article 8 provides for the case
of parties not asking an adjustment of the lands of which they are unlawfully enjoying the possession, within one year, and
threatens that the treasury "will reassert the ownership of the state over the lands," and will sell at auction such part as it does
not reserve. The applicant's possession was not unlawful, and no attempt at any such proceedings against him or his father ever
was made. Finally, it should be noted that the natural construction of the decree is confirmed by the report of the council of state.
That report puts forward as a reason for the regulations that, in view of the condition of almost all property in the Philippines, it
is important to fix its status by general rules on the principle that the lapse of a fixed period legalizes completely all possession,
recommends in two articles twenty and thirty years, as adopted in the decree, and then suggests that interested parties not
included in those articles may legalize their possession and acquire ownership by adjustment at a certain price.
It is true that the language of Articles 4 and 5 attributes title to those "who may prove" possession for the necessary time, and we
do not overlook the argument that this means may prove in registration proceedings. It may be that an English conveyancer
would have recommended an application under the foregoing decree, but certainly it was not calculated to convey to the mind of
an Igorot chief the notion that ancient family possessions were in danger, if he had read every word of it. The words "may prove"
(acrediten), as well, or better, in view of the other provisions, might be taken to mean when called upon to do so in any litigation.
There are indications that registration was expected from all, but none sufficient to show that, for want of it, ownership actually
gained would be lost.
Page 212 U. S. 463
The effect of the proof, wherever made, was not to confer title, but simply to establish it, as already conferred by the decree, if not
by earlier law. The royal decree of February 13, 1894, declaring forfeited titles that were capable of adjustment under the decree
of 1880, for which adjustment had not been sought, should not be construed as a confiscation, but as the withdrawal of a
privilege. As a matter of fact, the applicant never was disturbed. This same decree is quoted by the Court of Land Registration for
another recognition of the common law prescription of thirty years as still running against alienable Crown land.
It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties for courts of a
different legal tradition. We have deemed it proper on that account to notice the possible effect of the change of sovereignty and
the act of Congress establishing the fundamental principles now to be observed. Upon a consideration of the whole case, we are of
opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what, by
the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten
law of Spain.
Judgment reversed.
-Ermita-Malate Hotel and Motel Operators v. City Mayor of Manila, 20 SCRA 849
G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-
appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance No.
4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it "unconstitutional,
and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be reversed, there being a failure
of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and
Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and general
manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as such
"charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the
faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is
dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels and motels,
characterized as legitimate businesses duly licensed by both national and city authorities, regularly paying taxes, employing and
giving livelihood to not less than 2,500 person and representing an investment of more than P3 million."1 (par. 2). It was then
alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963
by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being beyond the
powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground that in the revised
charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per
annum for first class motels and P4,500.00 for second class motels; that the provision in the same section which would require
the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining or
accepting any guest or customer or letting any room or other quarter to any person or persons without his filling up the
prescribed form in a lobby open to public view at all times and in his presence, wherein the surname, given name and middle
name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and the number of companions in
the room, if any, with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as
well as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up and
affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with such registration
forms and records kept and bound together, it also being provided that the premises and facilities of such hotels, motels and
lodging houses would be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process grounds, not only for being arbitrary, unreasonable or
oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the right to privacy and the
guaranty against self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring
the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or, restaurant
and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive, a conclusion
which applies to the portion of the ordinance requiring second class motels to have a dining room; that the provision of Section 2
of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels, motels, lodging
houses, tavern or common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner,
manager, keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice
every 24 hours, runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive
character; and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction
would, cause the automatic cancellation of the license of the offended party, in effect causing the destruction of the business and
loss of its investments, there is once again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and void
and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to refrain
from enforcing said Ordinance No. 4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent Mayor
and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the provisions of the
cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth that the
petition did fail to state a cause of action and that the challenged ordinance bears a reasonable relation, to a proper purpose,
which is to curb immorality, a valid and proper exercise of the police power and that only the guests or customers not before the
court could complain of the alleged invasion of the right to privacy and the guaranty against self incrimination, with the assertion
that the issuance of the preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and the
dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964, which
reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are duly
organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner Go
Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of
Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of Manila
charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders
for the faithful execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and Ermita
districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was approved
on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the absence of the
respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the
ordinances of the City of Manila besides inserting therein three new sections. This ordinance is similar to the one
vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15, 1963
(Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed ordinance
(now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105 hotels
and motels (including herein petitioners) operating in the City of Manila.1äwphï1.ñët
Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the validity
of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party who assails it,
citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted point by point
the arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4, 1965, the memorandum
for petitioners was filed reiterating in detail what was set forth in the petition, with citations of what they considered to be
applicable American authorities and praying for a judgment declaring the challenged ordinance "null and void and
unenforceable" and making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged
constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a question of
law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court."
It does appear obvious then that without any evidence submitted by the parties, the decision passed upon the alleged infirmity on
constitutional grounds of the challenged ordinance, dismissing as is undoubtedly right and proper the untenable objection on the
alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No.
4760 of the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the preliminary
injunction issued against respondent Mayor and his agents "to restrain him from enforcing the ordinance in question." Hence this
appeal.
As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental character
ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its decision
cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional adjudication, in
both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that
attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor
of validity x x x . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the
very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances
which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice
that the regulations are essential to the well being of the people x x x . The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under the guise of police regulation. 2
It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable,
unless the statute or ordinance is void on its face which is not the case here. The principle has been nowhere better expressed
than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice
Brandeis tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject clearly within the
scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the resumption of constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute." No such factual foundation being laid in the present case, the lower court
deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment
against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due
process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover petitioners.
This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such
imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to
unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and
the least limitable of powers,4 extending as it does "to all the great public needs."5 It would be, to paraphrase another leading
decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to
promote public health, public morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent and
plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society. 7
There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public
morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the
alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels,
which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for
prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and
guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in
a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy
that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to
discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the
income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the
validity of the ordinance, argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy and
classifying a pimp or procurer as a vagrant;8 provide a license tax for and regulating the maintenance or operation of public dance
halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of panguingui on days other than Sundays
or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any person from keeping, conducting or
maintaining an opium joint or visiting a place where opium is smoked or otherwise used,15 all of which are intended to protect
public morals.
On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which, it
cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety
and general welfare of the people. In view of the requirements of due process, equal protection and other applicable
constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical,
unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for
correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due
process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the governmental
action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a substantive requisite to free the challenged ordinance, or
any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its doom? It is responsiveness to
the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in
sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings
for justice" and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical conception with fixed content
unrelated to time, place and circumstances,"19 decisions based on such a clause requiring a "close and perceptive inquiry into
fundamental principles of our society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to
form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body
considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that what should
be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the face of an admitted
deterioration of the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the need for a
remedial measure. It provided it with the enactment of the challenged ordinance. A strong case must be found in the records, and,
as has been set forth, none is even attempted here to attach to an ordinance of such character the taint of nullity for an alleged
failure to meet the due process requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners'
indictment of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for motels and hotels,
the curtailment of the area of freedom to contract, and, in certain particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for hotels and
motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee and
second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license fees could be
classified into those imposed for regulating occupations or regular enterprises, for the regulation or restriction of non-useful
occupations or enterprises and for revenue purposes only.22 As was explained more in detail in the above Cu Unjieng case: (2)
Licenses for non-useful occupations are also incidental to the police power and the right to exact a fee may be implied from the
power to license and regulate, but in fixing amount of the license fees the municipal corporations are allowed a much wider
discretion in this class of cases than in the former, and aside from applying the well-known legal principle that municipal
ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such
discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful
enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. Hence
license fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for the sale of
liquors. In fact, in the latter cases the fees have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the American
Supreme Court that taxation may be made to implement the state's police power. Only the other day, this Court had occasion to
affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently
plenary to cover a wide range of subjects with the only limitation that the tax so levied is for public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for revenue, it
has been explicitly held in one case that "much discretion is given to municipal corporations in determining the amount," here the
license fee of the operator of a massage clinic, even if it were viewed purely as a police power measure. 26 The discussion of this
particular matter may fitly close with this pertinent citation from another decision of significance: "It is urged on behalf of the
plaintiffs-appellees that the enforcement of the ordinance could deprive them of their lawful occupation and means of livelihood
because they can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage
meat, the sale of which outside the city markets under certain conditions is permitted x x x . And surely, the mere fact, that some
individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent
the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and
interest be affected by the exercise of the police power embark in these occupations subject to the disadvantages which may
result from the legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner,
manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to lease or
rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, call
for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command of due process. It is
neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which
such premises could be, and, according to the explanatory note, are being devoted. How could it then be arbitrary or oppressive
when there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt
at correction. Moreover, petitioners cannot be unaware that every regulation of conduct amounts to curtailment of liberty which
as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs through all these different conceptions of
liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by law.' Implied
in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the
general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual
is necessarily subject to reasonable restraint by general law for the common good x x x The liberty of the citizen may be
restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police
power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said law, and the
state in order to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this fundamental aim of our Government the rights of the individual are subordinated.
Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery.
The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so
that there may be established the resultant equilibrium, which means peace and order and happiness for all. 29
It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to
contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to some extent given
way to the assumption by the government of the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard
for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights
of property, the permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of vagueness or
uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the alleged grievance is
that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however, point to the requirement
that a guest should give the name, relationship, age and sex of the companion or companions as indefinite and uncertain in view
of the necessity for determining whether the companion or companions referred to are those arriving with the customer or guest
at the time of the registry or entering the room With him at about the same time or coming at any indefinite time later to join him;
a proviso in one of its sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent upon the
discretion of its owners or operators; another proviso which from their standpoint would require a guess as to whether the "full
rate of payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may be asked, do
these allegations suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to
answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has been consistently upheld that
what makes a statute susceptible to such a charge is an enactment either forbidding or requiring the doing of an act that men of
common intelligence must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A
citation from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws with
what they omit but there is no canon against using common sense in construing laws as saying what they obviously mean." 35
That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and
determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it. Respect for
constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the
appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs.
-Ang Tibay v. CIR, 69 Phil 635
G.R. No. L-46496 February 27, 1940
ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and
NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.
Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.
LAUREL, J.:
The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed a motion for
reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the
majority opinion of this Court:
1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una
determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago
de los salarios segun costumbre en la localidad o cunado se termine la obra;
2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin
tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la
cual tarbajan, dejan de ser empleados u obreros de la misma;
3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de
duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como
consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la
Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un
determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato
en virtud del paro.
The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority
of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers:
1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making
it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and
unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather.
2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent
the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.
3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles
from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his
CONTRACT with the Philippine Army.
4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio
Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.)
5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation
are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)
6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous
civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a
modern labor legislation of American origin where the industrial peace has always been the rule.
7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor
Union, Inc., and unjustly favoring the National Workers' Brotherhood.
8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence
they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations.
9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission
would necessarily mean the modification and reversal of the judgment rendered herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union,
Inc.
In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent
National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the
Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this,
however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in
cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and
emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the
entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial
evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken
contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing
counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of
counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation
(Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not
intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when
its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of
Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises
judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the
determination of disputes between employers and employees but its functions are far more comprehensive and expensive. It has
jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute
arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and
in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention,
arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising
from differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between
landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved
exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of
the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as
existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the
dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable
agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all
industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for
such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the
"inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of
industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official
investigation and compulsory arbitration in order to determine specific controversies between labor and capital industry and in
agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of
the separation of governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to
joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point
out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to
"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 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." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the
specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award,
order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the
dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy,
appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this
Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said
to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely
ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative
character. There are primary rights which must be respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304
U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the
rudimentary requirements of fair play.
the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may
delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem
necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a
decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies
coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing
examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our
case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that
the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The
performance of this duty is inseparable from the authority conferred upon it.
In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement
between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst
for a factual basis upon which to predicate, in a national way, a conclusion of law.

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union,
the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically
U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in Edwards vs. McCoy, 22 Phil., 598, "the discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the
right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National
conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and
consideration." functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his
substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be
(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to
be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and
vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By
anywhere. Law is both a grant and a limitation upon power. and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the
movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be
relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new.
(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. The failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result.
45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall be
Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be
965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered.
Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v.
Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98
F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be
controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion
of technical rules so that the mere admission of matter which would be deemed incompetent inn judicial proceedings
would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct.
563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct.
185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this
assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in
evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial
evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p.
131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and
disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57
Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be
protected in their right to know and meet the case against them. It should not, however, detract from their duty
actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence
and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the
purpose of investigating and determining the facts in any given case, but their report and decision are only advisory.
(Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural
dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of
-Rubi vs. Provincial Board Mindoro, G.R. No. L-14078, March 7, 1919
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs,
vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief
Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words
which, with a slight change in phraseology, can be made to introduce the present opinion — This cause, in every point of view in
which it can be placed, is of the deepest interest. The legislative power of state, the controlling power of the constitution and laws,
the rights if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now
to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues,
next to give a history of the so called "non-Christians," next to compare the status of the "non-Christians" with that of the
American Indians, and, lastly, to resolve the constitutional questions presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the
Maguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the
custody of the provincial sheriff in the prison at Calapan for having run away form the reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:
"Whereas several attempts and schemes have been made for the advancement of the non-Christian people
of Mindoro, which were all a failure,
"Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work
of this province, no successful result will be obtained toward educating these people.
"Whereas it is deemed necessary to obliged them to live in one place in order to make a permanent
settlement,
"Whereas the provincial governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and
approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most
convenient for the Mangyanes to live on, Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on
Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the
Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead
applications are previously recommended by the provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the
Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of
Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the Secretary of the Interior, on
February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the provisions of section
2145 of the revised Administrative Code, do hereby direct that all the Mangyans in the townships of
Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and
Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than
December 31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed
in sixty days, in accordance with section 2759 of the revised Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the
governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes
of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among
them.
5. That Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are
liable to be punished in accordance with section 2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he
is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to
take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved by the
provincial board. The action was taken in accordance with section 2145 of the Administrative Code of 1917, and was duly
approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of
the Administrative Code. This, therefore, becomes the paramount question which the court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. — With the prior approval of the
Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized,
when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their
habitation on sites on unoccupied public lands to be selected by him an approved by the provincial board.
In connection with the above-quoted provisions, there should be noted section 2759 of the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-Christian who shall refuse to comply
with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-
five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisonment
for a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine law. The genealogical tree of this section, if we
may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act No. 1397;
section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No.
387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in
varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand
the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of
all to set down a skeleton history of the attitude assumed by the authorities towards these "non-Christians," with particular
regard for the legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the
following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II at Toledo, on February 19,
1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the
poblaciones of 1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they
may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a
civilized manner, it has always been endeavored, with great care and special attention, to use all the means most
convenient to the attainment of these purposes. To carry out this work with success, our Council of the Indies and
other religious persons met at various times; the prelates of new Spain assembled by order of Emperor Charles V of
glorious memory in the year one thousand five hundred and forty-six — all of which meetings were actuated with a
desire to serve God an our Kingdom. At these meetings it was resolved that indios be made to live in communities, and
not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of
all spiritual and temporal benefits and wherein they cannot profit from the aid of our ministers and from that which
gives rise to those human necessities which men are obliged to give one another. Having realized that convenience of
this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys, presidents,
and governors to execute with great care and moderation the concentration of the indios into reducciones; and to deal
with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would
not presently settle and who would see the good treatment and the protection of those already in settlements would,
of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is
ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the
same be complied with in all the remaining parts of the Indies, and the encomederos shall entreat compliance thereof
in the manner and form prescribed by the laws of this title.
xxx xxx xxx
LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.
The places wherein the pueblos and reducciones shall be formed should have the facilities of waters. lands, and
mountains, ingress and egress, husbandry and passageway of one league long, wherein the indios can have their live
stock that they may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be
deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change
shall be made in this respect, and that they be allowed to retain the lands held by them previously so that they may
cultivate them and profit therefrom.
xxx xxx xxx
LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove the pueblos or
the reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal
district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by
offering or giving information to that en. And, because these claims are often made for private interests and not for
those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered
fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the judge or encomendero who
should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE "INDIOS."
We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be
more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if the town be a big
one, there should, nevertheless, be more than two mayors and four aldermen, If there be less than eighty indios but
not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine
others, in the presence of the priests , as is the practice in town inhabited by Spaniards and indios.
LAW XXI.
 Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10,
1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law
and the one following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in the reducciones and towns
and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the
indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to
avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and
mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness,
and also some of their blunders and vices which may corrupt and pervert the goal which we desire to reach with
regard to their salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon the
commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys,
presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the
cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds
(zambaigos), who are children of indias and born among them, and who are to inherit their houses and haciendas, they
all not be affected by this law, it appearing to be a harsh thing to separate them from their parents. (Law of the Indies,
vol. 2, pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced
inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the
Philippine Islands of January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a
nation should respect and obey the laws in force therein; while, on other hand, it is the duty to conscience and to
humanity for all governments to civilize those backward races that might exist in the nation, and which living in the
obscurity of ignorance, lack of all the nations which enable them to grasp the moral and material advantages that may
be acquired in those towns under the protection and vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the non-
Christian races from the social life of the civilized and Christian towns; to allow any longer the commission of
depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of
the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves with this most important question,
and that much has been heretofore accomplished with the help and self-denial of the missionary fathers who have
even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but
the means and the preaching employed to allure them have been insufficient to complete the work undertaken.
Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded
against, thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige
which the country demands and the inevitable duty which every government has in enforcing respect and obedience
to the national laws on the part of all who reside within the territory under its control, I have proceeded in the
premises by giving the most careful study of this serious question which involves important interests for civilization,
from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local
authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous
conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial
prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the
Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable
necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the
manner and the only form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be governed by the common law,
save those exceptions prescribed in this decree which are bases upon the differences of instructions, of the customs,
and of the necessities of the different pagan races which occupy a part of its territory.
2. The diverse rules which should be promulgated for each of these races — which may be divided into three classes;
one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made
up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain
and rebellious pagans — shall be published in their respective dialects, and the officials, priests, and missionaries of
the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These
rules shall have executive character, beginning with the first day of next April, and, as to their compliance, they must
be observed in the manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which
their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlement already
subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for
the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as
regards the administrative organization of the said towns or settlements, that this be finished before the first day of
next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the
remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to
render personal services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands appropriate for cultivation, the inhabitants
thereof shall not be obliged to move their dwelling-houses; and only in case of absolute necessity shall a new
residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the
least their interest; and, in either of these cases, an effort must be made to establish their homes with the reach of the
sound of the bell.
5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of
native Christian, the organization and service of which shall be determined in a regulations based upon that of the
abolished Tercios de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting
them and the liberty which they have as to where and now they shall till their lands and sell the products thereof, with
the only exception of the tobacco which shall be bought by the Hacienda at the same price and conditions allowed
other producers, and with the prohibition against these new towns as well as the others from engaging in commerce
of any other transaction with the rebellious indios, the violation of which shall be punished with deportation.
7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indios shall be
fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever
convenient.
8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all by this fact
along be exempt for eight years from rendering personal labor.
9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountains igorrots the
following advantages in returns for their voluntary submission: to live in towns; unity among their families;
concession of good lands and the right to cultivate them in the manner they wish and in the way them deem most
productive; support during a year, and clothes upon effecting submission; respect for their habits and customs in so
far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be
Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect,
and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from
contributions and tributes for ten years and from the quintas (a kind of tax) for twenty years; and lastly, that those
who are governed by the local authorities as the ones who elect such officials under the direct charge of the
authorities of the province or district.
 10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have
the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place
them in communication with one another and with the Christians; provided, the location of these towns be distant
from their actual residences, when the latter do not have the good conditions of location and cultivations, and
provided further the putting of families in a place so selected by them be authorized in the towns already constituted.
11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace,
protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing
from now on the crimes and vexations against the Christian towns; and for the this purposes, the Captain General's
Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards
(cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their
dwelling-houses, labors, and implements, and confiscate their products and cattle. Such a punishment shall
necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a
detachment of the military staff to study the zones where such operations shall take place and everything conducive to
the successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates to my authorities, local
authorities, and other subordinates to may authority, civil as well as military authorities, shall give the most effective
aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each.
13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the
Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent
commission which shall attend to and decide all the questions relative to the application of the foregoing regulations
that may be brought to it for consultations by the chiefs of provinces and priests and missionaries.
15. The secondary provisions which may be necessary, as a complement to the foregoing, in brining about due
compliance with this decree, shall be promulgated by the respective official centers within their respective
jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the
primitive inhabitants has been a perplexing one.
1. Organic law.
The first order of an organic character after the inauguration of the American Government in the Philippines was President
McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine
Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional
legislation. One paragraph of particular interest should here be quoted, namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by
Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government
and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which
they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent
barbarous practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose
of section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the
organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine
Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine Commission was to retain exclusive
jurisdiction of that part of said Islands inhabited by Moros or other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly
known as the Jones Law. This transferred the exclusive legislative jurisdiction and authority theretofore exercised by the
Philippine Commission, to the Philippine Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts,
the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu.
The Governor-General of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at
the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16).
The law establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision over the
public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between the territory not inhabited by Moros or other
non-Christian tribes, and the territory which Moros or other non-Christian tribes, and the territory which is inhabited by Moros
or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The
most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no.
83, the Provincial Government Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization
and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township
Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio charger; and Act No. 2408,
the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the
Administrative Codes of 1916 an d1917.
Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No.
387, sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of
Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the
provinces of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya,
Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the
Manguianes, we insert Act No. 547:
No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE
MANGUIANES IN THE PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed sufficiently in civilization to
make it practicable to bring them under any form of municipal government, the provincial governor is authorized,
subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from
among them, to fix their designations and badges of office, and to prescribe their powers and duties: Provided, That
the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act
Numbered Three hundred and eighty-seven entitled "An Act providing for the establishment of local civil
Governments in the townships and settlements of Nueva Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he
deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation
on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who
refuse to comply with such directions shall upon conviction be imprisonment for a period not exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and
experience necessary for successful local popular government, and his supervision and control over them shall be
exercised to this end, an to the end that law and order and individual freedom shall be maintained.
 SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced
sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven,
inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such
township shall be fixed by the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in
accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of
laws,' passed September twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and 1397. The last named Act
incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of
1916. The two Administrative Codes retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and consistent practice with
reference to the methods to be followed for their advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in section 7 of
the Philippine Bill and in section 22 of the Jones Law. They are also to be found in Act No. 253 of the Philippines Commission,
establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-
705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be
mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of
the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in sections 2076,
2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts
Nos. 2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission.
The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576,
Administrative Code of 1917; sec. 2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving to it a religious
signification. Obviously, Christian would be those who profess the Christian religion, and non-Christians, would be those who do
not profess the Christian religion. In partial corroboration of this view, there could also be cited section 2576 of the last
Administrative Code and certain well-known authorities, as Zuñiga, "Estadismo de las Islas Filipinas," Professor Ferdinand
Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson,
"The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning.
In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus,
according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not
inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the
twelfth senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines Legislature has,
time and again, adopted acts making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or
other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding
section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized
provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the
Philippine Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide
with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical
description.
It is well-known that within the specially organized provinces, there live persons some of who are Christians and some of whom
are not Christians. In fact, the law specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception is likewise inadquate. The reason it that the
motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location,
but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The so-called
non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his
jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly
known as the 'non-Christian tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third
Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United States as to the future political
status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the
Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative,
judicial, and executive authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et seq, and sections 2422 et seq, of
the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic
investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing
about their advancement in civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29,
Phil., 434). The question here arose as to the effect of a tribal marriage in connection with article 423 of the Penal code
concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following
language:
. . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called non-Christians or
members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by
General Orders no. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of
a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked
extenuating circumstance.
Of much more moment is the uniform construction of execution officials who have been called upon to interpret and enforce the
law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called
Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906,
this official addressed a letter to all governor of provinces, organized under the Special Provincial Government Act, a letter which
later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows:
 Sir: Within the past few months, the question has arisen as to whether people who were originally non-Christian but
have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of
Act 1396 and 1397, to be considered Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in
civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it
is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'non-
Christians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people
having any particular religious belief as for those lacking sufficient advancement so that they could, to their own
advantage, be brought under the Provincial Government Act and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has
attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of so-
called "wild tribes" of your province the benefit of the doubt even though they may recently have embraced
Christianity.
The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly
organized municipalities or what form of government shall be afforded to them should be the degree of civilization to
which they have attained and you are requested to govern yourself accordingly.
I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed
and who will have the necessary instructions given to the governors of the provinces organized under the Provincial
Government Act. (Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as
yet been made the present classification should be allowed to stand . . . I believe the term carries the same meaning as
the expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the
degree of civilization rather than of religious denomination, for the hold that it is indicative of religious denomination
will make the law invalid as against that Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question
arose for ruling relatives to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior
was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This
Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue, dated
June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the payment of cedula taxes. The Collector
of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of
Christian worship are alone subject to the cedula tax, and that all other person are exempt; he has interpreted it to
mean that all persons preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula
tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as
they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a
man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more
dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member
thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief,
but throwing his lot and living with a non-Christian tribe, would or would not be subject to the cedula tax. On one
occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he
was not a Christian. This Office, however, continued to collect cedula taxes from all the Jews, East Indians, Arabs,
Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men
belonging to the nationalities mentioned. Chinamen, Arabs and other s are quite widely scattered throughout the
Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula
taxes are therefore being collected by this Office in all parts of these Islands on the broad ground that civilized people
are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance
and Justice, to all provincial treasurers. This letter in part reads:
In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from
members of non-Christian tribes when they come in from the hills for the purposes of settling down and becoming
members of the body politic of the Philippine Islands, the following clarification of the laws governing such questions
and digest of rulings thereunder is hereby published for the information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess
Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the
Philippine Islands classed as members of non-Christian tribes may be divided into three classes in so far as the cedula
tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal
relations he may have had and attaches himself civilized community, belonging a member of the body politic, he
thereby makes himself subject to precisely the same law that governs the other members of that community and from
and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as
from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply
to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of
such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and
without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining whether or not a man is subject to the
regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of
or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of
advancement in civilization and connection or lack of connection with some civilized community. For this reason so
called "Remontados" and "Montescos" will be classed by this office as members of non-Christian tribes in so far as the
application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their
mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of
other recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by
Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa,
Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of Constabulary request the opinion of the
Attorney-General as to the status of a non-Christian who has been baptized by a minister of the Gospel. The precise questions
were these: "Does he remain non-Christian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors,
does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?"
The opinion of Attorney-General Avanceña, after quoting the same authorities hereinbefore set out, concludes:
 In conformity with the above quoted constructions, it is probable that is probable that the person in question remains
a non-Christian, so that, in purchasing intoxicating liquors both he and the person selling the same make themselves
liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions
place upon the law until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative
code which we are studying, we submit that said phrase does not have its natural meaning which would include all
non-Christian inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but simply refers to
those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence,
roam in the mountains, beyond the reach of law and order . . .
The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in
tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life,
did not intended to establish a distinction based on the religious beliefs of the individual, but, without dwelling on the
difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation
employed to designate the uncivilized portion of the inhabitants of the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act No. 2657 (articles 2145
and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because
this is the evident intention of the law, but because to give it its lateral meaning would make the law null and
unconstitutional as making distinctions base the religion of the individual.
The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows, then "Chief of the Bureau of
non-Christian Tribes," divides the population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the
Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the
classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing Gazetteer
and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a sub-division
under the title non-Christian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently
shows that the terms refers to culture and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the
proposition that the term "non-Christian" refers, not to religious belief, but, in a way , to geographical area, and, more directly, to
natives of the Philippine Islands of a law grade of civilization, usually living in tribal relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The Philippine Census of 1903 divided them into four
classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro." It may be that the use of
this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants
of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it to-day, but
its employed in three Filipino languages shows that the radical ngian had in all these languages a sense to-day
forgotten. In Pampango this ending still exists and signifies "ancient," from which we can deduce that the name was
applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the
modern invaders, in whose language they were called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in
civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number approximately 15,000. The manguianes
have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in
civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine (Islands
[1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE — THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy adopted by the United States for the Indian
Tribes. The methods followed by the Government of the Philippines Islands in its dealings with the so-called non-Christian people
is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian
tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized
relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the
Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in
1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on —
"This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to
effect this object by civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United States vs. Kagama ([1886], 118 U.S., 375). Reference
is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign
nations, and among the several States, and with the Indian tribes." The court then proceeds to indicate a brief history of the
position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to
the people of the United States, has always been an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of American towards the Indians who were found
here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a
possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted
an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or
peoples without the consent of this paramount authority. When a tribe wished to dispose of its lands, or any part of it,
or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be
done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty
or otherwise. With the Indians themselves these relation are equally difficult to define. They were, and always have
been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as
nation not a possessed of the fall attributes of sovereignty, but as a separate people, with the power of regulating their
internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits
they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of
the nation. The are communities dependent on the United States. dependent largely for their daily food. Dependent for
their political rights. They owe no allegiance to the States, and receive from the no protection. Because of the local ill
feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and
helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it
has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the
Executive and by Congress, and by this court, whenever the question has arisen . . . The power of the General
Government over these remnants of race once powerful, now weak and diminished in numbers, is necessary to their
protection, as well as to the safety of those among whom they dwell. it must exist in that government, because it never
has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States,
because it has never been denied, and because it alone can enforce its laws on all the tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered was whether the status of the
Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the reports of the different superintendent
charged with guarding their interests and founds that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of
the pueblos were treated as wards requiring special protection, where subjected to restraints and official supervisions in the
alienation of their property." And finally, we not the following: "Not only does the Constitution expressly authorize Congress to
regulate commerce with the Indians tribes, but long-continued legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a
fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or
territory subsequently acquired, and whether within or without the limits of a state."
With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment
of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the
judicial department of the government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278;
U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871], 11 Wall,
616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553;
Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221 U.S.,
286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the
United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such
measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U.S. vs. Thomas
[1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that
of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against
Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of
Indians. The petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians,
now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their
tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves
by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and
without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of
the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and
connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits
of the Indian Territory — had departed therefrom without permission from the Government; and, at the request of the Secretary
of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to
their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha
Indian Territory.
The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question,
of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of
being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court
reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court
said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the
Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the
reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of
Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the
exercise of the power must be upheld." The decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue
out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in
custody under color of authority of the United States or where he is restrained of liberty in violation of the
constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the military department of the Platte, has the
custody of the relators, under color of authority of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent
has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the
inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on
forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the
relators must be discharged from custody, and it is so ordered.
As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian
petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as
such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical. But even admitting similarity
of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different
parts of the country and placed on these reservation, without any previous consultation as to their own wishes, and that, when
once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If
any lesson can be drawn form the Indian policy of the United States, it is that the determination of this policy is for the legislative
and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a
carefully planned governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for the
segregation of the different Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial
authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full
responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An
understanding of the rule will, however, disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude
of case, namely: "The true distinction therefore is between the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R.
Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard
([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make
decisions of executive departments of subordinate official thereof, to whom t has committed the execution of certain acts, final on
questions of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give prominence to the
"necessity" of the case.
Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section 21454 of the Administrative
Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the
Department Head, discretionary authority as to the execution of the law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the Secretary of the Interior to
approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the
Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian
Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out to the Indian relations." Justice Holmes said:
"We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this
language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned.
The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was
necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian
Department." (See also as corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the
previous decisions of the United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An exception to the general rule. sanctioned by
immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine
Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the
provincial board.
Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to
judge "when such as course is deemed necessary in the interest of law and order?" As officials charged with the administration of
the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most
favorable for improving the people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature
to provincial official and a department head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that — "The
statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it
provides for the segregation of 'non-Christians' and none other." The inevitable result, them, is that the law "constitutes an
attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently,
unconstitutional."
Counsel's premise once being conceded, his arguments is answerable — the Legislature must be understood to mean what it has
plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has
violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long
continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the
court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the
Philippines Islands of a low grade of civilization, and that section 2145 of the Administrative Code of 1917, does not discriminate
between individuals an account of religious differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the
Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This
constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution — and these provisions, it
has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual
is then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every
other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That
authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization,
which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint;
the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from
injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do
desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only
freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in
Crowley vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from
restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any
other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a
law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the
operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his
person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which
the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human
government — especially of any free government existing under a written Constitution — to interfere with the
exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the
safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great
dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public
may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience
of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the
peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist and
the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array
of authorities including epoch-making decisions of the United States Supreme Court, Liberty includes the right of the citizens to
be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue
any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out
these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's
employment, the right to labor, and the right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There
can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179
U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in
democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual
and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every
man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for
the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other
citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the
citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper
scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189
Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in
the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of
"due process of law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general
rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always
necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left
to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.)
Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether
sanctioned by age and customs, or newly devised in the discretion of the legislative power, in furtherance of the public good,
which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California
[1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the
general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third,
that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to
all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States
Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the
situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of
a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be made later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution
particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall
involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite
possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force
in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268
to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary
servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another."
(Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any
servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910],
219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a
description of the police power under which the State must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the farreaching scope of the
power, that it has become almost possible to limit its weep, and that among its purposes is the power to prescribe regulations to
promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the
State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U.S., 27.) What we are not
interested in is the right of the government to restrain liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with self-protection, and is not inaptly termed the
'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried
onward by the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative discretion, provided
the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily
interfere with the right of the individual.
The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the
promotion of the general welfare and the public interest. "There can be not doubt that the exercise of the police power of the
Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those
fundamental principles which lie at the foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915],
32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional
provision has indeed been violated by section 2145 of the Administrative Code, we should endeavor to ascertain the intention of
the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered,
assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the non-Christian
people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a
permanent settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the protection of the
public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the
Interior on June 10 to 13, 1918, made a trip to the place. There he found that the site selected is a good one; that
creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be
encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with
enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly
unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during
the period of less than one year since the beginning of the institution definitely justify its continuance and
development.
Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the
Secretary of the Interior, upon his return to Manila, made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade
the influence of civilization. The Government will follow its policy to organize them into political
communities and to educate their children with the object of making them useful citizens of this country.
To permit them to live a wayfaring life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they will be subject to involuntary
servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian people, has adopted as the
polaris of his administration — "the advancement of the non-Christian elements of our population to equality and unification
with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild
habitat and settle in organized communities.
(b) The extension of the public school system and the system of public health throughout the regions inhabited by the
non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to facilitate their development and the
extention of government control.
(d) Construction of roads and trials between one place and another among non-Christians, to promote social and
commercial intercourse and maintain amicable relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially agriculture.
( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of
Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued among the non-Christian people. These
people are being taught and guided to improve their living conditions in order that they may fully appreciate the
benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild
habitat and settle in organized settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent communities, thus bringing them under the
control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate
their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are
being impressed with the purposes and objectives of the Government of leading them to economic, social, and political
equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for
1917.)
The fundamental objective of governmental policy is to establish friendly relations with the so-called non-Christians, and to
promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos.
2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards
the non-Christian people in the following unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of
the region inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and
complete manner the moral, material, economic, social, and political development of those regions, always having in
view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and
non-Christian elements populating the provinces of the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the
fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be
advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these
people?
In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of
Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the
ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by
bringing than into a reservation was to gather together the children for educational purposes, and to improve the health and
morals — was in fine, to begin the process of civilization. this method was termed in Spanish times, "bringing under the bells."
The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the
same class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live
under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really
constitutes protection for the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely
accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate
brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. And true, indeed, they are
Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the
progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the
executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory
men, or they will leave the country. It is no argument to say that such crimes are punished by the Penal Code, because these
penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the
resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to
guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not
conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law
of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization, they (the manguianes) are engaged in
the works of destruction — burning and destroying the forests and making illegal caiñgins thereon. Not bringing any
benefit to the State but instead injuring and damaging its interests, what will ultimately become of these people with
the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a
heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not
they will be subjected to involuntary servitude by those who may want to abuse them.
There is no doubt in my mind that this people a right conception of liberty and does not practice liberty in a rightful
way. They understand liberty as the right to do anything they will — going from one place to another in the
mountains, burning and destroying forests and making illegal caiñgins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being
deprived thereof without due process of law?
xxx xxx xxx
But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply
to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It
will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people should be let along in the mountains and
in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble
sense.
In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of
either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more
in accord with humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended more and more towards the education and
civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the
Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will
become useful citizens. In the light of what has already been accomplished which has been winning the gratitude of
most of the backward people, shall we give up the noble work simply because a certain element, believing that their
personal interests would be injured by such a measure has come forward and challenged the authority of the
Government to lead this people in the pat of civilization? Shall we, after expending sweat, treasure, and even blood
only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been
erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without
due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the
Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus
left in a permanent state of savagery and become a vulnerable point to attack by those who doubt, nay challenge, the
ability of the nation to deal with our backward brothers.
The manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to
improve their living conditions. They are being made to understand that they object of the government is to organize
them politically into fixed and permanent communities. They are being aided to live and work. Their children are
being educated in a school especially established for them. In short, everything is being done from them in order that
their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao
does not make them slaves or put them in a condition compelled to do services for another. They do not work for
anybody but for themselves. There is, therefore, no involuntary servitude.
 But they are compelled to live there and prohibited from emigrating to some other places under penalty of
imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life,
do not have permanent individual property. They move from one place to another as the conditions of living warrants,
and the entire space where they are roving about is the property of the nation, the greater part being lands of public
domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to
concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire
territory? This measure is necessary both in the interest of the public as owner of the lands about which they are
roving and for the proper accomplishment of the purposes and objectives of the government. For as people
accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless
a penalty is provinced for, you can not make them live together and the noble intention of the Government of
organizing them politically will come to naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could be not, however, be
kept away from certain localities ? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U.S.
Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law
provided for the apprehension of marauding Indians. Without any doubt, this law and other similar were accepted and followed
time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the
mercy of unscrupulous official. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally
be that the official into whose hands are given the enforcement of the law would have little or not motive to oppress these people;
on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and
patriotically. If, indeed, they did ill-treat any person thus confined, there always exists the power of removal in the hands of
superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is
generally challenged and no particular case of oppression is called to the attention of the courts, it would seems that the Judiciary
should not unnecessarily hamper the Government in the accomplishment of its laudable purpose.
The question is above all one of sociology. How far, consistently with freedom, may the right and liberties of the individual
members of society be subordinated to the will of the Government? It is a question which has assailed the very existence of
government from the beginning of time. Now purely an ethical or philosophical subject, nor now to be decided by force, it has
been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very
existence of government renders imperatives a power to restrain the individual to some extent, dependent, of course, on the
necessities of the class attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in
interfering with the rights of the citizen, this is, and for a along time to come will be, impossible for the courts to determine.
We can seen objection to the application of public policy as a ratio decidendi. Every really new question that comes before the
courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or
line of cases, or by the aid of analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip
the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle.
But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies.
Distinctions must be made from time to time as sound reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has been in vain, if we fail to
realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea to
unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before
the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be
populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with
a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for
a time, as we have said, for their own good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be
exercised. The whole tendency of the best considered case is toward non-interference on the part of the courts whenever political
ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional
law, like other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in the final decision of the
many grave questions which this case presents, the courts must take "a chance," it should be with a view to upholding the law,
with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no
narrow and bigoted sense, but with that broad conception which will make the courts as progressive and effective a force as are
the other departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative Code does not deprive a person of his liberty
without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in
accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that section
2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the
United States. Section 2145 of the Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the true
ruling of the court. Costs shall be taxes against petitioners. So ordered.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the
past. The modern period has shown as widespread belief in the amplest possible demonstration of governmental activity. The
courts unfortunately have sometimes seemed to trial after the other two branches of the government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its
rightful authority. it is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the
Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that
due process of law has not been followed. To go back to our definition of due process of law and equal protection of the law, there
exists a law ; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it
applies alike to all of a class.

As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that
section 2145 is valid. it the attitude which the courts should assume towards the settled policy of the Government. In a late
decision with which we are in full accord, Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice
of the Supreme Court of Tennessee writes:
-Ichong v. Hernandez, 101 Phil. 1155 (1957)
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely
affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of Manila, respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental
and far-reaching in significance. The enactment poses questions of due process, police power and equal protection of the laws. It
also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually
exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and
country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national
aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into
a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the
country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify
the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The
main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations,
partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on
May 15, 1954, who are allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until
their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on nationalization,
control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the
establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified
statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and
their offices and principal offices of judicial entities; and (7) a provision allowing the heirs of aliens now engaged in the retail
business who die, to continue such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships adversely affected by
the provisions of Republic Act. No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and
to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the
equal protection of the laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is
not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the
Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession,
and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate
the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of
the police power of the State, which exercise is authorized in the Constitution in the interest of national economic survival; (2)
the Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards
hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is
only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this
instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before
proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the
guarantees of due process and equal protection of the laws. What is the scope of police power, and how are the due process and
equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of the
courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be
brought forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit its sweep. As it derives
its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co-
extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of
nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless,
just as the fields of public interest and public welfare have become almost all-embracing and have transcended human foresight.
Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and
progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State
seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of
the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the
equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law, nor any person be
denied the equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to
citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of
nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or
the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or
by territory within which is to operate. It does not demand absolute equality among residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies
alike to all persons within such class, and reasonable grounds exists for making a distinction between those who fall within such
class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power. Is there public
interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's
purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used,
or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process
test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more
apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall
it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no
absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean
license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and
persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or
standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a
reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first
place, that the legislature, which is the constitutional repository of police power and exercises the prerogative of determining the
policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any
law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a
reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has been a clear,
patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override
legitimate policy, and courts never inquire into the wisdom of the law.
cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly
peddler, the owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a part of day-to-
day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country in the bigger centers of population (Time there was when he
was unknown in provincial towns and villages). Slowly but gradually be invaded towns and villages; now he predominates in the
cities and big centers of population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable
fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and
the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent neighbors and
customers are made in his face, but he heeds them not, and he forgets and forgives. The community takes note of him, as he
appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position
that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the
residents mostly through him. In big cities and centers of population he has acquired not only predominance, but apparent
control over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and
scores of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and
the Acefa, his control over principal foods and products would easily become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is
unfounded and the threat is imagined; in another, it is charged that the law is merely the result of radicalism and pure and
unabashed nationalism. Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business
make control virtually impossible. The first argument which brings up an issue of fact merits serious consideration. The others
are matters of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide.

V. Economic problems sought to be remedied The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional
convention year (1935), when the fear of alien domination and control of the retail trade already filled the minds of our leaders
with fears and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), official statistics
With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade, as witness the following
were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative tables:
power. But it goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as old as society itself, which from the immemorial has always
been open to residents, irrespective of race, color or citizenship. Assets Gross Sales
Year and Retailers No.- Per cent Per cent
Pesos Pesos
a. Importance of retail trade in the economy of the nation. — Nationality Establishments Distribution Distribution
1941:
In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is Filipino .......... 106,671 200,323,138 55.82 174,181,924 51.74
unknown. But as group life develops and families begin to live in communities producing more than what they consume and Chinese ........... 15,356 118,348,692 32.98 148,813,239 44.21
needing an infinite number of things they do not produce, the dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's importance is enhanced. Under modern conditions and Others ............ 1,646 40,187,090 11.20 13,630,239 4.05
standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes 1947:
as essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life are placed within the
Filipino .......... 111,107 208,658,946 65.05 279,583,333 57.03
easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food
and supplies are ministered to members of the communities comprising the nation. Chinese ........... 13,774 106,156,218 33.56 205,701,134 41.96
Others ........... 354 8,761,260 .49 4,927,168 1.01
There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's 1948: (Census)
daily needs, food in all its increasing forms, and the various little gadgets and things needed for home and daily life. He provides
Filipino .......... 113,631 213,342,264 67.30 467,161,667 60.51
his customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has
 Chinese .......... 12,087 93,155,459 29.38 294,894,227 38.20 Chinese ............................................. 7,707 33,207
Others .......... 422 10,514,675 3.32 9,995,402 1.29
Others ............................................... 24,824 22,033
1949:
Filipino .......... 113,659 213,451,602 60.89 462,532,901 53.47
Chinese .......... 16,248 125,223,336 35.72 392,414,875 45.36 (Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners, Benchmark: 1948
Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.)
Others .......... 486 12,056,365 3.39 10,078,364 1.17
1951:
The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include
Filipino ......... 119,352 224,053,620 61.09 466,058,052 53.07 mere market vendors, whose capital is necessarily small..
Chinese .......... 17,429 134,325,303 36.60 404,481,384 46.06
Others .......... 347 8,614,025 2.31 7,645,327 87 The above figures reveal that in percentage distribution of assests and gross sales, alien participation has steadily increased
during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up for the
numerical gap through their assests and gross sales which average between six and seven times those of the very many Filipino
retailers. Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times
more, and gains much more. The same official report, pointing out to the known predominance of foreign elements in the retail
trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents, the
AVERAGE native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply.
ASSETS AND GROSS SALES PER ESTABLISHMENT
d. Alien control and threat, subject of apprehension in Constitutional convention. —
Item
Year and Retailer's Gross Sales
Assets
Nationality (Pesos)
(Pesos) It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization would never have been adopted. The framers of our Constitution also believed in the
1941: existence of this alien dominance and control when they approved a resolution categorically declaring among other things, that
"it is the sense of the Convention that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The
Filipino ............................................. 1,878 1,633 Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the events
since then have not been either pleasant or comforting. Dean Sinco of the University of the Philippines College of Law,
Chinese .............................................. 7,707 9,691 commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the
general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the
Others ............................................... 24,415 8,281 commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern
of the members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic
1947: provisions of the Constitution, he says:
Filipino ............................................. 1,878 2,516
But there has been a general feeling that alien dominance over the economic life of the country is not desirable and
Chinese ........................................... 7,707 14,934 that if such a situation should remain, political independence alone is no guarantee to national stability and strength.
Filipino private capital is not big enough to wrest from alien hands the control of the national economy. Moreover, it is
Others .............................................. 24,749 13,919 but of recent formation and hence, largely inexperienced, timid and hesitant. Under such conditions, the government
as the instrumentality of the national will, has to step in and assume the initiative, if not the leadership, in the struggle
1948: (Census) for the economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom.
Thus . . . it (the Constitution) envisages an organized movement for the protection of the nation not only against the
Filipino ............................................. 1,878 4,111 possibilities of armed invasion but also against its economic subjugation by alien interests in the economic field. (Phil.
Political Law by Sinco, 10th ed., p. 476.)
Chinese ............................................. 7,707 24,398

Others ..............................................
1949:
Filipino .............................................
Chinese ..............................................
24,916 23,686 Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen, manufacturers and
producers believe so; they fear the dangers coming from alien control, and they express sentiments of economic independence.
Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a
similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in
1,878 4,069 the street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not
only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official
7,707 24,152 statistics, and felt by all the sections and groups that compose the Filipino community.

Others .............................................. 24,807 20,737

e. Dangers of alien control and dominance in retail. —
1951:
But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a
Filipino ............................................. 1,877 3,905 prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and
action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital
matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even
the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national
economy and of the complete subservience of national economy and of the consuming public are not entirely unfounded.
Nationals, producers and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose an article of
daily use is desired to be prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or
because a new competing article offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the
first article, eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its consumers, find the article
suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would
suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice,
creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to
the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice
and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they have violated price
control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No.
1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations
among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott
honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and
enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that
they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in
the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own
lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above
practices.
The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of
the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war
or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what
we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities
and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis
or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even
become the potential enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial
hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the people, thru their
authorized representatives, to free the nation from the economic situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national security itself, and indisputably
falls within the scope of police power, thru which and by which the State insures its existence and security and the supreme
welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that now poses solution is, Does the law deny the equal
protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien
and the national as a trader. The alien resident owes allegiance to the country of his birth or his adopted country; his stay here is
for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate
nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and
makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from
taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his
beloved country and his beloved kin and countrymen. The experience of the country is that the alien retailer has shown such
utter disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt the
legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and
wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not invested in industries that
would help the country's economy and increase national wealth. The alien's interest in this country being merely transient and
temporary, it would indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of
stocks of commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the
people of the nation of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of
the trade by the nationals, show the existence of real and actual, positive and fundamental differences between an alien and a
national which fully justify the legislative classification adopted in the retail trade measure. These differences are certainly a valid
reason for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality were
we to hold that no reason or ground for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish
sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree with the wisdom of
the legislature's classification. To this we answer, that this is the prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the
classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its legitimate
prerogative and it can not declare that the act transcends the limit of equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied
by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of
the constitutional limitation only when the classification is without reasonable basis. In addition to the authorities we have
earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly
defined the application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in
the adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what
is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some
reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or
because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any
state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law
was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing
that it does not rest upon any reasonable basis but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided
in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where
the validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of
vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus denying
the right to aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine Bill of
Rights. The legislature in enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the safety
for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are in
favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in coastwise
trade to citizens of the Philippines does not violate the equal protection of the law and due process or law clauses of the
Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case
of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses,
retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an
 extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the
shipping of other nations. Almost every commercial nation reserves to its own subjects a monopoly of its coasting
trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the
United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect
has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contra
distinguished from foreign; and to preserve the Government from fraud by foreigners; in surreptitiously intruding
themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this
whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because
the limitation of the class falls along the lines of nationality. That would be requiring a higher degree of protection for
aliens as a class than for similar classes than for similar classes of American citizens. Broadly speaking, the difference
in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power. (2
Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which
provided that no one can obtain a license unless he is, or has declared his intention, to become a citizen of the United States, was
held valid, for the following reason: It may seem wise to the legislature to limit the business of those who are supposed to have
regard for the welfare, good order and happiness of the community, and the court cannot question this judgment and conclusion.
In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from engaging in
the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but
was based on the belief that an alien cannot be sufficiently acquainted with "our institutions and our life as to enable him to
appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke
vs. Deckebach, 274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the city of
Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational discrimination
against aliens is prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a relation to
a legitimate object of legislation as to be made the basis of permitted classification, and that it could not state that the legislation
is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the legislative
choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to
the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn brooking was considered as
having tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar statute denying
aliens the right to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also
in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests,
knowledge, attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of
pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the
reason for the decision was the court's findings that the exercise of the business by the aliens does not in any way affect the
morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947),
a California statute banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void, because
the law conflicts with Federal power over immigration, and because there is no public interest in the mere claim of ownership of
the waters and the fish in them, so there was no adequate justification for the discrimination. It further added that the law was
the outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices dissented on the theory that fishing
rights have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897),
a state law which imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was
declared void because the court found that there was no reason for the classification and the tax was an arbitrary deduction from
the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between
aliens and citizens is not a valid ground for classification. But in this decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no question
of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court
declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or
any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be
no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of
their right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief
that no public benefit would be derived from the operations of the law and on the other hand it would deprive Chinese of
something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an ordinance conferring
powers on officials to withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the
court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the
administration and implementation of the law, and that the motive thereof was mere racial hostility. In State vs. Montgomery, 47
A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination
bore no reasonable and just relation to the act in respect to which the classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the
sympathetic consideration and regard for the customers with whom they come in daily contact, nor the patriotic desire to help
bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to
the land. These limitations on the qualifications of the aliens have been shown on many occasions and instances, especially in
times of crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive
home the reality and significance of the distinction between the alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are without the intimate knowledge of
our laws, customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of
different psychology from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that the
foreign born, whose allegiance is first to their own country, and whose ideals of governmental environment and
control have been engendered and formed under entirely different regimes and political systems, have not the same
inspiration for the public weal, nor are they as well disposed toward the United States, as those who by citizenship,
are a part of the government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot
be affirmed with absolute confidence that the Legislature was without plausible reason for making the classification,
and therefore appropriate discriminations against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive. —
We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the
United States that:
. . . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable,
arbitrary or capricious, and that the means selected shall have a real and substantial relation to the subject sought to
be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is
free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that
policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it
is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and
judicial determination to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of the police power in a
constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to
inquire whether the restriction it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and
not whether it imposes any restrictions on such rights. . . .
xxx xxx xxx
 . . . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must
not be for the annoyance of a particular class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-
1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of
the public generally, as distinguished from those of a particular class, require such interference; and second, that the
means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. .
..
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the
operation of a business, is or is not constitutional, one of the first questions to be considered by the court is whether
the power as exercised has a sufficient foundation in reason in connection with the matter involved, or is an arbitrary,
oppressive, and capricious use of that power, without substantial relation to the health, safety, morals, comfort, and
general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as
essential to the orderly pursuant of happiness by free men; that it is a gainful and honest occupation and therefore beyond the
power of the legislature to prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect
assumption and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has been so engaged by him,
by the alien in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate
danger to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that
the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs and practices, that he now
enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the
national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but
this, Is the exclusion in the future of aliens from the retail trade unreasonable. Arbitrary capricious, taking into account the
illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the
answer is clear. The law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free
national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and
privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not
merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of
reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into
law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the
Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our
economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to our free
institutions, and who have no permanent stake in our people's welfare, we are not really the masters of our destiny.
All aspects of our life, even our national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the
Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not
citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our
national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom
and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of
their own race or country. The removal and eradication of the shackles of foreign economic control and domination, is one of the
noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can
infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond
the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —
The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the
attainment of such a noble motive as freedom from economic control and domination, thru the exercise of the police power. The
fathers of the Constitution must have given to the legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue now before us, they expressly made their voice
clear; they adopted a resolution expressing their belief that the legislation in question is within the scope of the legislative power.
Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstain
from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because
it is convinced that the National Assembly is authorized to promulgate a law which limits to Filipino and American
citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on
pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble,
a principle objective is the conservation of the patrimony of the nation and as corollary the provision limiting to citizens of the
Philippines the exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided
that "no franchise, certificate, or any other form of authorization for the operation of the public utility shall be granted except to
citizens of the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective policy laid
down as a primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit underlying
many of the provisions of the Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measures
is, therefore, fully justified. It would have been recreant to its duties towards the country and its people would it view the sorry
plight of the nationals with the complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face
the problem and meet, through adequate measures, the danger and threat that alien domination of retail trade poses to national
economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law
is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during
the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is
denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the
fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision
would defeat the law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to judicial review. It
is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative
judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every
presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable.
These principles also answer various other arguments raised against the law, some of which are: that the law does not promote
general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination
of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general
breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed
wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as
it conceals the real purpose of the bill which is to nationalize the retail business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than one subject which shall be expressed in the title of
the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators or the public of the
nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the
two main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit the sale of
intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the
tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the
sale of such liquors to minors and to persons in the habit of getting intoxicated; such matters being properly included
within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually
done in connection with the thing to be regulated. While word regulate does not ordinarily convey meaning of
prohibit, there is no absolute reason why it should not have such meaning when used in delegating police power in
connection with a thing the best or only efficacious regulation of which involves suppression. (State vs. Morton, 162
So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the
entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the
Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also
contains other rules for the regulation of the retail trade which may not be included in the terms "nationalization" or
"prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions
not falling within the scope of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in
accord with the principle governing the drafting of statutes, under which a simple or general term should be adopted in the title,
which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of
the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have received the
notice, action and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have been
appraised of the nature of the law, especially the nationalization and the prohibition provisions. The legislators took active
interest in the discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The
objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United
Nations and of the Declaration of the Human Rights adopted by the United Nations General Assembly. We find no merit in the
Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of
the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere
recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the
United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations
Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world
laws against foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be
violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same
terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all
other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from
engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or
restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to
national economy posed by alien dominance and control of the retail business and free citizens and country from dominance and
control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its
own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution
because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the
due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in
the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear
to us to be plainly evident — as a matter of fact it seems not only appropriate but actually necessary — and that in any case such
matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the
Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity
and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed
conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be
curtailed or surrendered by any treaty or any other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on
the aliens. Thus it is stated that the more time should have been given in the law for the liquidation of existing businesses when
the time comes for them to close. Our legal duty, however, is merely to determine if the law falls within the scope of legislative
authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies
against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
-Garcia vs. Drilon G.R. No. 179267 (2013)
G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE
JAYPE-GARCIA, for herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all
surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent of a total population of
93.3 million – adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as their own bodies
just as Christ loved the church and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence
against Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that, for the years 2000-
2003, "female violence comprised more than 90o/o of all forms of abuse and violence and more than 90% of these reported cases
were committed by the women's intimate partners such as their husbands and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted Republic Act (R.A.) No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004. 4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children (VAWC)
perpetrated by women's intimate partners, i.e, husband; former husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child.5 The law provides for protection orders from the barangay and the
courts to prevent the commission of further acts of VAWC; and outlines the duties and responsibilities of barangay officials, law
enforcers, prosecutors and court personnel, social workers, health care providers, and other local government officials in
responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the equal protection and due
process clauses, and an undue delegation of judicial power to barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of marital infidelity on the part of petitioner, with threats of
deprivation of custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years her senior. They have
three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner but whom private respondent
adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately isolated her from her friends. When she took up law, and even
when she was already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at
home. He was often jealous of the fact that his attractive wife still catches the eye of some men, at one point threatening that he
would have any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair when private respondent confronted him about it in 2004. He
even boasted to the household help about his sexual relations with said bank manager. Petitioner told private respondent,
though, that he was just using the woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and shook her with such force that caused bruises and hematoma.
At another time, petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned
his ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times. When private respondent decided to leave petitioner, Jo-Ann
begged her mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the small boys are aware of private
respondent's sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of his cruelty to
private respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of despair. On December 17, 2005, while at
home, she attempted suicide by cutting her wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private respondent was hospitalized for about seven (7) days in which time petitioner never
bothered to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing therapy almost
every week and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's Bank that she intends to file charges against the bank
manager, petitioner got angry with her for jeopardizing the manager's job. He then packed his things and told private respondent
that he was leaving her for good. He even told private respondent's mother, who lives with them in the family home, that private
respondent should just accept his extramarital affair since he is not cohabiting with his paramour and has not sired a child with
her.13
Private respondent is determined to separate from petitioner but she is afraid that he would take her children from her and
deprive her of financial support. Petitioner had previously warned her that if she goes on a legal battle with him, she would not
get a single centavo.14
Petitioner controls the family businesses involving mostly the construction of deep wells. He is the President of three
corporations – 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation – of which he and private
respondent are both stockholders. In contrast to the absolute control of petitioner over said corporations, private respondent
merely draws a monthly salary of ₱20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than ₱200,000.00 a month are paid for by private respondent through the use of credit cards, which, in
turn, are paid by the same corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of ₱60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited
cash advances and other benefits in hundreds of thousands of pesos from the corporations.16 After private respondent confronted
him about the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said businesses. Until the filing of the
petition a quo, petitioner has not given private respondent an accounting of the businesses the value of which she had helped
raise to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the private respondent and her children exists
or is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24 hours from
receipt of the Temporary Restraining Order and if he refuses, ordering that he be removed by police officers from the
conjugal dwelling; this order is enforceable notwithstanding that the house is under the name of 236 Realty Holdings
Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides to return to
the conjugal dwelling to remove things, the Petitioner shall be assisted by police officers when re-entering the family
home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of the danger
that the Respondent will attempt to take her children from her when he arrives from Manila and finds out about this
suit.
b) To stay away from the petitioner and her children, mother and all her household help and driver from a distance of
1,000 meters, and shall not enter the gate of the subdivision where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly her children, mother and household help, nor send gifts, cards,
flowers, letters and the like. Visitation rights to the children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the Provincial Director of the PNP to cancel all the Respondent's
firearm licenses. He should also be ordered to surrender any unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the corporations
from 1 January 2006 up to 31 March 2006, which himself and as President of the corporations and his Comptroller,
must submit to the Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be reported to
the court by the Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect
Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and considering the financial
resources of the Respondent and his threat that if the Petitioner sues she will not get a single centavo, the Respondent
is ordered to put up a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO,20 effective for thirty
(30) days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the Starex Van
which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in Parañaque, the continued use of the
Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty Thousand Pesos (Php
150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the matter of
support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of the
TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1) comply with the three-day notice rule, and
(2) contain a notice of hearing. He further asked that the TPO be modified by (1) removing one vehicle used by private
respondent and returning the same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the
amount of the bond from ₱5,000,000.00 to a more manageable level at ₱100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following modifications prayed for by
private respondent:
a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her children to
Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in Pitimini St.,
Capitolville Subdivision, Bacolod City within 24 hours from receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the Temporary Protection Order by his counsel, and that he
cannot return until 48 hours after the petitioners have left, so that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an inventory of the household furniture, equipment and other things
in the conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for clothes of the
three petitioners (sic) children within 24 hours from receipt of the Temporary Protection Order by his counsel,
otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24 hours from
receipt of the Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of payment of
such expenses.23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with the TPO; and committed
new acts of harassment against her and their children, private respondent filed another application 24 for the issuance of a TPO ex
parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol and Starex Van used by private respondent and the children. A
writ of replevin was served upon private respondent by a group of six or seven policemen with long firearms that scared the two
small boys, Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap him, which incident
traumatized the boy resulting in his refusal to go back to school. On another occasion, petitioner allegedly grabbed their daughter,
Jo-Ann, by the arm and threatened her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal
complaint against her father for violation of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the conjugal home of a
complaint for kidnapping and illegal detention against private respondent. This came about after private respondent, armed with
a TPO, went to said home to get her and her children's belongings. Finding some of her things inside a housemaid's (Sheryl
Jamola) bag in the maids' room, private respondent filed a case for qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another, acts of violence against the
offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the
offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the Petitioners
Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype, cook Novelita
Caranzo, driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance of 1,000 meters, and shall not enter the gate of the subdivision
where the Petitioners are temporarily residing, as well as from the schools of the three children; Furthermore, that
respondent shall not contact the schools of the children directly or indirectly in any manner including, ostensibly to
pay for their tuition or other fees directly, otherwise he will have access to the children through the schools and the
TPO will be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for the period
from August 6 to September 6, 2006; and support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with Plate No. FFD
991 and should the respondent fail to deliver said vehicles, respondent is ordered to provide the petitioner another
vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal assets, or those real
properties in the name of Jesus Chua Garcia only and those in which the conjugal partnership of gains of the Petitioner
Rosalie J. Garcia and respondent have an interest in, especially the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other properties which are conjugal assets or those in which the conjugal
partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I-
1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or disposition of these above-cited
properties to any person, entity or corporation without the personal presence of petitioner Rosalie J. Garcia, who shall
affix her signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that her signature will
be forged in order to effect the encumbrance or sale of these properties to defraud her or the conjugal partnership of
gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten (10) days, and gave
petitioner a period of five (5) days within which to show cause why the TPO should not be renewed, extended, or modified. Upon
petitioner's manifestation,30 however, that he has not received a copy of private respondent's motion to modify/renew the TPO,
the trial court directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an
Order32 dated a day earlier, October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent portion is
quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection Order issued on August
23, 2006 is hereby renewed and extended for thirty (30) days and continuously extended and renewed for thirty (30) days, after
each expiration, until further orders, and subject to such modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted the required comment to private
respondent's motion for renewal of the TPO arguing that it would only be an "exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition 34 for prohibition (CA-
G.R. CEB-SP. No. 01698), with prayer for injunction and temporary restraining order, challenging (1) the constitutionality of R.A.
9262 for being violative of the due process and the equal protection clauses, and (2) the validity of the modified TPO issued in the
civil case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the enforcement of the TPO,
the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial court constituted a
collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the Resolution 37 dated August 14, 2007,
petitioner is now before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF CONSTITUTIONALITY
WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO
PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL
BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262, we shall first tackle the
propriety of the dismissal by the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the trial court, it will not be considered on appeal.39 Courts will not
anticipate a question of constitutional law in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City, petitioner argues that the
Family Court has limited authority and jurisdiction that is "inadequate to tackle the complex issue of constitutionality." 41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial Courts. Under R.A.
8369, otherwise known as the "Family Courts Act of 1997," family courts have exclusive original jurisdiction to hear and decide
cases of domestic violence against women and children.42 In accordance with said law, the Supreme Court designated from
among the branches of the Regional Trial Courts at least one Family Court in each of several key cities identified. 43 To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family
Courts shall have original and exclusive jurisdiction over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of
violence against women and their children under this law. In the absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option
of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a
statute,45 "this authority being embraced in the general definition of the judicial power to determine what are the valid and
binding laws by the criterion of their conformity to the fundamental law." 46 The Constitution vests the power of judicial review or
the power to declare the constitutionality or validity of a law, treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v.
CA48 that, "plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments
and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been raised at the earliest
opportunity in his Opposition to the petition for protection order before the RTC of Bacolod City, which had jurisdiction to
determine the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new kind of procedure
requiring the respondent to file an opposition to the petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an opposition to the petition which he himself shall verify. It must
be accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not
be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but any cause of action
which could be the subject thereof may be litigated in a separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and third-party complaint are to
be excluded from the opposition, the issue of constitutionality cannot likewise be raised therein. A counterclaim is defined as any
claim for money or other relief which a defending party may have against an opposing party. 50 A cross-claim, on the other hand, is
any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein.51 Finally, a third-party complaint is a claim that a defending party may, with leave of
court, file against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.52 As pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of
action that could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from
being raised in the opposition in view of the familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of private respondent to a
protection order is founded solely on the very statute the validity of which is being attacked53 by petitioner who has sustained, or
will sustain, direct injury as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and
purposes, a valid cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner from raising the same
in his Opposition. The question relative to the constitutionality of a statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal
issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue an order containing
the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent possible,
within the 30-day period of the effectivity of the temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary, Section 26 (b) of A.M. No.
04-10-11-SC provides that if a temporary protection order issued is due to expire, the trial court may extend or renew the said
order for a period of thirty (30) days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without necessarily running afoul of the very purpose for
the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer for injunction and
temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he finds
succor in a superior court, he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly
disallows the filing of a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court.
Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO, the amended TPOs and other
orders pursuant thereto was improper, and it effectively hindered the case from taking its normal course in an expeditious and
summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if the appeal of a
judgment granting permanent protection shall not stay its enforcement,55 with more reason that a TPO, which is valid only for
thirty (30) days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the
community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even
though alleged to be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary
powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of the case. It bears
stressing, however, that protection orders are granted ex parte so as to protect women and their children from acts of violence.
To issue an injunction against such orders will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and again, discharged our solemn duty as final arbiter of constitutional
issues, and with more reason now, in view of private respondent's plea in her Comment 59 to the instant Petition that we should
put the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not enough basis to deprive the husband/father of the remedies
under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had originally proposed what she called a "synthesized
measure"62 – an amalgamation of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 – providing protection to "all family members, leaving no one in isolation" but at the same time
giving special attention to women as the "usual victims" of violence and abuse, 64 nonetheless, it was eventually agreed that men
be denied protection under the same measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic violence apart from against women as well as other members of
the household, including children or the husband, they fear that this would weaken the efforts to address domestic violence of
which the main victims or the bulk of the victims really are the wives, the spouses or the female partners in a relationship. We
would like to place that on record. How does the good Senator respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in Intimate Relationship.
They do not want to include men in this domestic violence. But plenty of men are also being abused by women. I am playing safe
so I placed here members of the family, prescribing penalties therefor and providing protective measures for victims. This
includes the men, children, live-in, common-law wives, and those related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit this to women and not to families which was
the issue of the AWIR group. The understanding that I have is that we would be having a broader scope rather than just women, if
I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong. However, I believe that there is a
need to protect women's rights especially in the domestic environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file a case against their
spouses, their live-in partners after years, if not decade, of battery and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses, then it would not equalize the already difficult situation for
women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the men in this Chamber
who love their women in their lives so dearly will agree with this representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women are, we are not given equal opportunities especially in the
domestic environment where the macho Filipino man would always feel that he is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the family members have
been included in this proposed measure since the other members of the family other than women are also possible victims of
violence. While women are most likely the intended victims, one reason incidentally why the measure focuses on women, the fact
remains that in some relatively few cases, men also stand to be victimized and that children are almost always the helpless
victims of violence. I am worried that there may not be enough protection extended to other family members particularly
children who are excluded. Although Republic Act No. 7610, for instance, more or less, addresses the special needs of abused
children. The same law is inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing that they may use this law to
justify their abusive behavior against women. However, we should also recognize that there are established procedures and
standards in our courts which give credence to evidentiary support and cannot just arbitrarily and whimsically entertain baseless
complaints.
Mr. President, this measure is intended to harmonize family relations and to protect the family as the basic social institution.
Though I recognize the unequal power relations between men and women in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband and wife and their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members as a critical input arrived at after a
series of consultations/meetings with various NGOs, experts, sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be removing the "men and
children" in this particular bill and focus specifically on women alone. That will be the net effect of that proposed amendment.
Hearing the rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is
inclined to accept the proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept this, I will propose an amendment to the
amendment rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent of the amendment. As a
matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede
na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very much abused. As a matter of fact, it is not limited to minors. The
abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old children being abused by their fathers, even by
their mothers. And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will update that. It will enhance and
hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as amended, is approved. 66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute. 67 Hence, we dare not
venture into the real motivations and wisdom of the members of Congress in limiting the protection against violence and abuse
under R.A. 9262 to women and children only. No proper challenge on said grounds may be entertained in this proceeding.
Congress has made its choice and it is not our prerogative to supplant this judgment. The choice may be perceived as erroneous
but even then, the remedy against it is to seek its amendment or repeal by the legislative. By the principle of separation of
powers, it is the legislative that determines the necessity, adequacy, wisdom and expediency of any law. 68 We only step in when
there is a violation of the Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred
and responsibilities imposed. The oft-repeated disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union 69 is
instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation
on persons merely as such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity
of rights. The Constitution does not require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is
limited either in the object to which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments
of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which
make for real differences; that it must be germane to the purpose of the law; that it must not be limited to existing conditions
only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid classification as shall
hereinafter be discussed and, as such, did not violate the equal protection clause by favoring women over men as victims of
violence and abuse to whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more likely than men to be victims of
violence; and the widespread gender bias and prejudice against women all make for real differences justifying the classification
under the law. As Justice McIntyre succinctly states, "the accommodation of differences ... is the essence of true equality." 70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked with the unequal power relationship between women and men
otherwise known as "gender-based violence". Societal norms and traditions dictate people to think men are the leaders, pursuers,
providers, and take on dominant roles in society while women are nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining more power over women. With power comes the need to
control to retain that power. And VAW is a form of men's expression of controlling women to retain power.71
The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on December 20, 1993 stating that "violence against women is a manifestation of
historically unequal power relations between men and women, which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and developments in
advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last
October 27, 2004, the pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The patriarch of a family was accorded the right
to use force on members of the family under his control. I quote the early studies:
Traditions subordinating women have a long history rooted in patriarchy – the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and intellectually. In ancient Western societies, women whether
slave, concubine or wife, were under the authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered his property right over
her. Judaism, Christianity and other religions oriented towards the patriarchal family strengthened the male dominated structure
of society.
English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one was the husband. However, in the late 1500s and through the
entire 1600s, English common law began to limit the right of husbands to chastise their wives. Thus, common law developed the
rule of thumb, which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal punishment ceased.
Even then, the preservation of the family was given more importance than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in her face or kick her about
the floor, or to inflict upon her like indignities, is not now acknowledged by our law... In person, the wife is entitled to the same
protection of the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became more organized. The temperance leagues initiated it. These
leagues had a simple focus. They considered the evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated and
picketed saloons, bars and their husbands' other watering holes. Soon, however, their crusade was joined by suffragette
movements, expanding the liberation movement's agenda. They fought for women's right to vote, to own property, and more.
Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No less than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past
year. The [American Medical Association] views these figures as "marked underestimates," because the nature of these incidents
discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English
well, and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner violence is probably double the above estimates; or four
million severely assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-
partner during their lifetime... Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their
male partners. Many of these incidents involve sexual assault... In families where wife beating takes place, moreover, child abuse
is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also common.
Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative...Many
abused women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of
income... Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent
of all homicide victims in the United States are killed by their spouses...Thirty percent of female homicide victims are killed by
their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the role and rights of women have
been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a Commission on the Status of
Women.
The Philippines has been in cadence with the half – and full – steps of all these women's movements. No less than Section 14,
Article II of our 1987 Constitution mandates the State to recognize the role of women in nation building and to ensure the
fundamental equality before the law of women and men. Our Senate has ratified the CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties
therefor and for other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
 victims of violence.
RA 9208 17 11 16 24 34 152 190 62
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and children show that –

Abduction
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases reported (9,903). And 16 34 23 28 18 25 22
/Kidnapping 29
for the first semester of 2003, there were 2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he total
number of women in especially difficult circumstances served by the Department of Social Welfare and Development (DSWD) for
the year 2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD Unjust Vexation 90 50 59 59 83 703 183 155
cases out of a total number of 3,471 cases for the first semester of 2003. Female violence comprised more than 90% of all forms
of abuse and violence and more than 90% of these reported cases were committed by the women's intimate partners such as
their husbands and live-in partners.73
Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

Recently, the Philippine Commission on Women presented comparative statistics on violence against women across an eight-year
period from 2004 to August of 2011 with violations under R.A. 9262 ranking first among the different VAW categories since its
implementation in 2004,74 thus: *2011 report covers only from January to August

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011* Source: Philippine National Police – Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the Philippines because
Reported incidents thereof are relatively low and, perhaps, because many men will not even attempt to report the situation. In the United
2004 2005 2006 2007 2008 2009 2010 2011 Kingdom, 32% of women who had ever experienced domestic violence did so four or five (or more) times, compared with 11% of
Cases
the smaller number of men who had ever experienced domestic violence; and women constituted 89% of all those who had
experienced 4 or more incidents of domestic violence.75 Statistics in Canada show that spousal violence by a woman against a
man is less likely to cause injury than the other way around (18 percent versus 44 percent). Men, who experience violence from
Rape 997 927 659 837 811 770 1,042 832 their spouses are much less likely to live in fear of violence at the hands of their spouses, and much less likely to experience
sexual assault. In fact, many cases of physical violence by a woman against a spouse are in self-defense or the result of many years
of physical or emotional abuse.76
Incestuous Rape 38 46 26 22 28 27 19 23

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the same cannot
render R.A. 9262 invalid.
Attempted Rape 194 148 185 147 204 167 268 201

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to pick up, gather and
Acts of deposit in receptacles the manure emitted or discharged by their vehicle-drawing animals in any public highways, streets, plazas,
580 536 382 358 445 485 745 625 parks or alleys, said ordinance was challenged as violative of the guaranty of equal protection of laws as its application is limited
Lasciviousness
to owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but similarly pass through the
same streets.
Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-drawing animals that also
traverse the city roads, "but their number must be negligible and their appearance therein merely occasional, compared to the
rig-drawing ones, as not to constitute a menace to the health of the community." 77 The mere fact that the legislative classification
Sexual may result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for
53 37 38 46 18 54 83 63
Harassment regulation by law produces inequality in some degree, but the law is not thereby rendered invalid.78

C. Gender bias and prejudices

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently
Threats 319 223 199 182 220 208 374 213 and less seriously than other crimes. This was argued by then United States Senator Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the U.S. has
Seduction 62 19 29 30 19 19 25 15 institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to "double victimization" – first
at the hands of the offender and then of the legal system.79

Concubinage 121 102 93 109 109 99 158 128 Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that "(w)henever violence occurs in
the family, the police treat it as a private matter and advise the parties to settle the conflict themselves. Once the complainant
brings the case to the prosecutor, the latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of
response or reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often serious nature
of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling her as
"only a live-in partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even
called her a "prostitute," and accused her of being motivated by "insatiable greed" and of absconding with the contested
property.81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women does not discriminate against men.82 Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law
deserves scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to
modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the character of
domestic violence from a private affair to a public offense will require the development of a distinct mindset on the part of the
police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence committed against
women and children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State values the dignity of women and children and guarantees full
respect for human rights. The State also recognizes the need to protect the family and its members particularly women and
children, from violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981. Subsequently, the
Optional Protocol to the CEDAW was also ratified by the Philippines on October 6, 2003. 86 This Convention mandates that State
parties shall accord to women equality with men before the law87 and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two protocols. 89 It is, thus, bound by
said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to future conditions
as well, for as long as the safety and security of women and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not
limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body,
forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home
or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such
as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse
and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a
member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or
to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not
limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession,
occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious
and moral grounds as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are attributable to research that has exposed the
dimensions and dynamics of battery. The acts described here are also found in the U.N. Declaration on the Elimination of Violence
Against Women.90 Hence, the argument advanced by petitioner that the definition of what constitutes abuse removes the
difference between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate contrast between the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited, and need
not guess at its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or threatening to
deprive the woman or her child of a legal right," "solely controlling the conjugal or common money or properties," "marital
infidelity," and "causing mental or emotional anguish" are so vague that they make every quarrel a case of spousal abuse.
However, we have stressed that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be
upheld – not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid
merely because it might have been more explicit in its wordings or detailed in its provisions. 93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit. As defined above,
VAWC may likewise be committed "against a woman with whom the person has or had a sexual or dating relationship." Clearly,
the use of the gender-neutral word "person" who has or had a sexual or dating relationship with the woman encompasses even
lesbian relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the
Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim,
were held to be proper respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's husband)
had community of design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring
her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections afforded by the due process
clause of the Constitution. Says he: "On the basis of unsubstantiated allegations, and practically no opportunity to respond, the
husband is stripped of family, property, guns, money, children, job, future employment and reputation, all in a matter of seconds,
without an inkling of what happened."95
A protection order is an order issued to prevent further acts of violence against women and their children, their family or
household members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies
necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to
accord the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator
from committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary
custody of minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their
financial support."97
The rules require that petitions for protection order be in writing, signed and verified by the petitioner 98 thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since "time is of the essence in cases of VAWC if further violence is to
be prevented,"99 the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim
from the immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is required not only to
verify the allegations in the petition, but also to attach her witnesses' affidavits to the petition. 101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ of preliminary
attachment which is issued without notice and hearing because the time in which the hearing will take could be enough to enable
the defendant to abscond or dispose of his property,102 in the same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and possibly even death, if notice and hearing were required before such
acts could be prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process must yield
to the necessities of protecting vital public interests,103 among which is protection of women and children from violence and
threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be immediately given to
the respondent directing him to file an opposition within five (5) days from service. Moreover, the court shall order that notice,
copies of the petition and TPO be served immediately on the respondent by the court sheriffs. The TPOs are initially effective for
thirty (30) days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the notice upon the
respondent requiring him to file an opposition to the petition within five (5) days from service. The date of the preliminary
conference and hearing on the merits shall likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent protection order should not be issued.106
It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of the charges
imputed to him and afforded an opportunity to present his side. Thus, the fear of petitioner of being "stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an inkling of what happened" is
a mere product of an overactive imagination. The essence of due process is to be found in the reasonable opportunity to be heard
and submit any evidence one may have in support of one's defense. "To be heard" does not only mean verbal arguments in court;
one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO
that was granted only two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his children. Still, the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not to file the
required comment arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal of the
questioned TPO was only for a limited period (30 days) each time, and that he could prevent the continued renewal of said order
if he can show sufficient cause therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied
due process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a "blank check" issued to the wife to claim any property as her conjugal
home.108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the residence,
either temporarily for the purpose of protecting the offended party, or permanently where no property rights are violated. If the
respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until the respondent has gathered his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of ownership, only
temporarily for the purpose of protecting the latter. Such removal and exclusion may be permanent only where no property
rights are violated. How then can the private respondent just claim any property and appropriate it for herself, as petitioner
seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and counseling, the law has
done violence to the avowed policy of the State to "protect and strengthen the family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a mediator. The reason
behind this provision is well-explained by the Commentary on Section 311 of the Model Code on Domestic and Family Violence as
follows:110
This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order for protection.
Mediation is a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the
issue at hand. Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with the person against whom the protection order
has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
impartial, and that the chances of acquittal are nil. As already stated, assistance by barangay officials and other law enforcement
agencies is consistent with their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict with the Constitution,
not merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the
Court. In other words, the grounds for nullity must be beyond reasonable doubt.116 In the instant case, however, no concrete
evidence and convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A. 9262,
which is an act of Congress and signed into law by the highest officer of the co-equal executive department. As we said in Estrada
v. Sandiganbayan, 117 courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers,
and passed laws with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the
majority.

Petitioner contends that protection orders involve the exercise of judicial power which, under the Constitution, is placed upon the We reiterate here Justice Puno's observation that "the history of the women's movement against domestic violence shows that
"Supreme Court and such other lower courts as may be established by law" and, thus, protests the delegation of power to one of its most difficult struggles was the fight against the violence of law itself. If we keep that in mind, law will not again be a
barangay officials to issue protection orders.111 The pertinent provision reads, as follows: hindrance to the struggle of women for equality but will be its fulfillment." 118 Accordingly, the constitutionality of R.A. 9262 is, as
it should be, sustained.
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. – Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
(b) of this Act.1âwphi1 A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant
on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay SO ORDERED.
Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable
at the time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.112 On the other hand, executive power "is
generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his unavailability, by any
available Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child;
and (2) threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely
executive in nature, in pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to
"maintain public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain facts and to apply the
law thereto in order to determine what his official conduct shall be and the fact that these acts may affect private rights do not
constitute an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding "whether there is
reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof," the Punong
Barangay must determine reasonable ground to believe that an imminent danger of violence against the woman and her children
exists or is about to recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by the
prosecutor is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law enforcement agencies are
required to extend assistance to victims of violence and abuse, it would be very unlikely that they would remain objective and
-Cruz vs. NCIP, G.R. No. 135385. (December 6, 2000) (Flavier, et. al), filed their Motion for Leave to Intervene. They join the NCIP in defending the constitutionality of IPRA and
praying for the dismissal of the petition.
G.R. No. 135385 December 6, 2000
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene and/or to Appear as Amicus
Curiae. The CHR asserts that IPRA is an expression of the principle of parens patriae and that the State has the responsibility to
ISAGANI CRUZ and CESAR EUROPA, petitioners, protect and guarantee the rights of those who are at a serious disadvantage like indigenous peoples. For this reason it prays that
vs. the petition be dismissed.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET AND MANAGEMENT and CHAIRMAN
and COMMISSIONERS OF THE NATIONAL COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI MANSAYANGAN, BASILIO WANDAG, On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon Foundation for the
EVELYN DUNUAN, YAOM TUGAS, ALFREMO CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to Intervene with attached Comment-in-Intervention.
DALUPINES, BAI KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-ANTONIO D. They agree with the NCIP and Flavier, et al. that IPRA is consistent with the Constitution and pray that the petition for prohibition
LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, DATU EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON and mandamus be dismissed.
BAYAAN, TIMUAY JOSE ANOY, TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG MALANAW
VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY DAYA-MELINDA S. REYMUNDO, BAI
The motions for intervention of the aforesaid groups and organizations were granted.
TINANGHAGA HELINITA T. PANGAN, DATU MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY,
VICKY MAKAY, LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA GRACE L. GIRON,
ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES, LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their respective memoranda in which
BUGNAY, CARLING DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA G. DESCAGA, they reiterate the arguments adduced in their earlier pleadings and during the hearing.
LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO VALONES, PEPE H. ATONG, OFELIA T. DAVI,
PERFECTO B. GUINOSAO, WALTER N. TIMOL, MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA,
ALFREDO ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO A. LINDAHAY, ROEL S. Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing Rules on the ground that they
MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY, HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, amount to an unlawful deprivation of the State’s ownership over lands of the public domain as well as minerals and other natural
JIMMY UGYUB, SALVADOR TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID, resources therein, in violation of the regalian doctrine embodied in Section 2, Article XII of the Constitution:
MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO MANGCAL, FELAY DIAMILING,
SALOME P. SARZA, FELIPE P. BAGON, SAMMY SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, "(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b) which, in turn, defines ancestral
SR., JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M. GERARDA, ELIZABETH L. MENDI, lands;
MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS MARICEL MALID, represented by her father CORNELIO MALID,
MARCELINO M. LADRA, represented by her father MONICO D. LADRA, JENNYLYN MALID, represented by her father TONY
MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA, EDWARD M. EMUY, SR., SUSAN BOLANIO, "(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable public lands, bodies of
OND, PULA BATO B'LAAN TRIBAL FARMER'S ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN FORUM- water, mineral and other resources found within ancestral domains are private but community property of the indigenous
WESTERN VISAYAS, intervenors. peoples;
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION OF NATURAL RESOURCES,
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains and ancestral lands;
INC., intervenor.

"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the ancestral domains;
RESOLUTION

(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the ancestral lands;
PER CURIAM:

"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting, extraction, development or
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as citizens and taxpayers, assailing the
exploration of minerals and other natural resources within the areas claimed to be their ancestral domains, and the right to enter
constitutionality of certain provisions of Republic Act No. 8371 (R.A. 8371), otherwise known as the Indigenous Peoples Rights
into agreements with nonindigenous peoples for the development and utilization of natural resources therein for a period not
Act of 1997 (IPRA), and its Implementing Rules and Regulations (Implementing Rules).
exceeding 25 years, renewable for not more than 25 years; and

In its resolution of September 29, 1998, the Court required respondents to comment.1 In compliance, respondents Chairperson
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect and conserve the ancestral
and Commissioners of the National Commission on Indigenous Peoples (NCIP), the government agency created under the IPRA to
domains and portions thereof which are found to be necessary for critical watersheds, mangroves, wildlife sanctuaries,
implement its provisions, filed on October 13, 1998 their Comment to the Petition, in which they defend the constitutionality of
wilderness, protected areas, forest cover or reforestation."2
the IPRA and pray that the petition be dismissed for lack of merit.

Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains" and "ancestral lands" which
On October 19, 1998, respondents Secretary of the Department of Environment and Natural Resources (DENR) and Secretary of
might even include private lands found within said areas, Sections 3(a) and 3(b) violate the rights of private landowners. 3
the Department of Budget and Management (DBM) filed through the Solicitor General a consolidated Comment. The Solicitor
General is of the view that the IPRA is partly unconstitutional on the ground that it grants ownership over natural resources to
indigenous peoples and prays that the petition be granted in part. In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the NCIP and making
customary law applicable to the settlement of disputes involving ancestral domains and ancestral lands on the ground that these
provisions violate the due process clause of the Constitution.4
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors of the IPRA, Mr. Ponciano
Bennagen, a member of the 1986 Constitutional Commission, and the leaders and members of 112 groups of indigenous peoples
These provisions are:
 "(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of ancestral domains and which Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a separate opinion expressing the view
vest on the NCIP the sole authority to delineate ancestral domains and ancestral lands; that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions of R.A. 8371 are unconstitutional. He reserves judgment on the
constitutionality of Sections 58, 59, 65, and 66 of the law, which he believes must await the filing of specific cases by those whose
rights may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view that Sections 3(a), 7,
"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is an ancestral domain and and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena, Gonzaga-Reyes, and De Leon join in the separate opinions
upon notification to the following officials, namely, the Secretary of Environment and Natural Resources, Secretary of of Justices Panganiban and Vitug.
Interior and Local Governments, Secretary of Justice and Commissioner of the National Development Corporation, the
jurisdiction of said officials over said area terminates;
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case was redeliberated upon.
However, after redeliberation, the voting remained the same. Accordingly, pursuant to Rule 56, Section 7 of the Rules of Civil
"(3) Section 63 which provides the customary law, traditions and practices of indigenous peoples shall be applied first Procedure, the petition is DISMISSED.
with respect to property rights, claims of ownership, hereditary succession and settlement of land disputes, and that
any doubt or ambiguity in the interpretation thereof shall be resolved in favor of the indigenous peoples;
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug, Kapunan, Mendoza, and
Panganiban.
"(4) Section 65 which states that customary laws and practices shall be used to resolve disputes involving indigenous
peoples; and
SO ORDERED.
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes involving rights of the indigenous
peoples."5 Davide, Jr., C.J., Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Puno, Vitug, Kapunan, Mendoza and Panganiban JJ., see separate opinion
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order No. 1, series of 1998, which
provides that "the administrative relationship of the NCIP to the Office of the President is characterized as a lateral but
autonomous relationship for purposes of policy and program coordination." They contend that said Rule infringes upon the
President’s power of control over executive departments under Section 17, Article VII of the Constitution. 6
Footnotes
Petitioners pray for the following:
1 Rollo, p. 114.
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related provisions of R.A. 8371
are unconstitutional and invalid; 2 Petition, Rollo, pp. 16-23.

"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the NCIP to cease and desist 3 Id.
from implementing the assailed provisions of R.A. 8371 and its Implementing Rules; at 23-25.

4 Section1, Article III of the Constitution states: "No person shall be deprived of life, liberty or property without due
"(3) The issuance of a writ of prohibition directing the Secretary of the Department of Environment and Natural
Resources to cease and desist from implementing Department of Environment and Natural Resources Circular No. 2, process of law, nor shall any person be denied the equal protection of the laws."
series of 1998;
5 Rollo, pp. 25-27.
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management to cease and desist from
disbursing public funds for the implementation of the assailed provisions of R.A. 8371; and 6 Id. at 27-28.

"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and Natural Resources to comply 7 Transcript of Stenographic Notes of the hearing held on April 13, 1999, pp. 5-6.
with his duty of carrying out the State’s constitutional mandate to control and supervise the exploration, development,
utilization and conservation of Philippine natural resources." 7

The Lawphil Project - Arellano Law Foundation

After due deliberation on the petition, the members of the Court voted as follows:

Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice and Justices Bellosillo,
Quisumbing, and Santiago join, sustaining the validity of the challenged provisions of R.A. 8371. Justice Puno also filed a separate
opinion sustaining all challenged provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative SEPARATE OPINION
Order No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the IPRA which he contends
should be interpreted as dealing with the large-scale exploitation of natural resources and should be read in conjunction with
Section 2, Article XII of the 1987 Constitution. On the other hand, Justice Mendoza voted to dismiss the petition solely on the PUNO, J.:
ground that it does not raise a justiciable controversy and petitioners do not have standing to question the constitutionality of
R.A. 8371. PRECIS
A classic essay on the utility of history was written in 1874 by Friedrich Nietzsche entitled "On the Uses and Disadvantages of (a) Cariño v. Insular Government
History for Life." Expounding on Nietzsche's essay, Judge Richard Posner1 wrote:2
(b) Indian Title to land
"Law is the most historically oriented, or if you like the most backward-looking, the most 'past-dependent,' of the professions. It
venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom,
seniority, gerontocracy, and interpretation conceived of as a method of recovering history. It is suspicious of innovation, (c) Why the Cariño doctrine is unique
discontinuities, 'paradigm shifts,' and the energy and brashness of youth. These ingrained attitudes are obstacles to anyone who
wants to re-orient law in a more pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms 3. The option of securing a torrens title to the ancestral land
with history."

B. The right of ownership and possession by the ICCs/IPs to their ancestral domains is a limited form of ownership
When Congress enacted the Indigenous Peoples Rights Act (IPRA), it introduced radical concepts into the Philippine legal and does not include the right to alienate the same.
system which appear to collide with settled constitutional and jural precepts on state ownership of land and other natural
resources. The sense and subtleties of this law cannot be appreciated without considering its distinct sociology and the labyrinths
of its history. This Opinion attempts to interpret IPRA by discovering its soul shrouded by the mist of our history. After all, the 1. The indigenous concept of ownership and customary law
IPRA was enacted by Congress not only to fulfill the constitutional mandate of protecting the indigenous cultural communities'
right to their ancestral land but more importantly, to correct a grave historical injustice to our indigenous people. C. Sections 7 (a), 7 (b) and 57 of the IPRA do not violate the Regalian Doctrine enshrined in Section 2, Article XII of the
1987 Constitution.
This Opinion discusses the following:
1. The rights of ICCs/IPs over their ancestral domains and lands
I. The Development of the Regalian Doctrine in the Philippine Legal System.
2. The right of ICCs/IPs to develop lands and natural resources within the ancestral domains does not
A. The Laws of the Indies deprive the State of ownership over the natural resources, control and supervision in their development
and exploitation.

B. Valenton v. Murciano
(a) Section 1, Part II, Rule III of the Implementing Rules goes beyond the parameters of Section
7(a) of the law on ownership of ancestral domains and is ultra vires.
C. The Public Land Acts and the Torrens System

(b) The small-scale utilization of natural resources in Section 7 (b) of the IPRA is allowed under
D. The Philippine Constitutions Paragraph 3, Section 2, Article XII of the 1987 Consitution.

II. The Indigenous Peoples Rights Act (IPRA). (c) The large-scale utilization of natural resources in Section 57 of the IPRA may be harmonized
with Paragraphs 1 and 4, Section 2, Article XII of the 1987 Constitution.
A. Indigenous Peoples
V. The IPRA is a Recognition of Our Active Participation in the International Indigenous Movement.
1. Indigenous Peoples: Their History
DISCUSSION
2. Their Concept of Land
I. THE DEVELOPMENT OF THE REGALIAN DOCTRINE IN THE PHILIPPINE LEGAL SYSTEM.
III. The IPRA is a Novel Piece of Legislation.
A. The Laws of the Indies
A. Legislative History
The capacity of the State to own or acquire property is the state's power of dominium.3 This was the foundation for the early
IV. The Provisions of the IPRA Do Not Contravene the Constitution. Spanish decrees embracing the feudal theory of jura regalia. The "Regalian Doctrine" or jura regalia is a Western legal concept
that was first introduced by the Spaniards into the country through the Laws of the Indies and the Royal Cedulas. The
Laws of the Indies, i.e., more specifically, Law 14, Title 12, Book 4 of the Novisima Recopilacion de Leyes de las Indias, set the policy
A. Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute part of of the Spanish Crown with respect to the Philippine Islands in the following manner:
the land of the public domain.
"We, having acquired full sovereignty over the Indies, and all lands, territories, and possessions not heretofore ceded away by our
1. The right to ancestral domains and ancestral lands: how acquired royal predecessors, or by us, or in our name, still pertaining to the royal crown and patrimony, it is our will that all lands which
are held without proper and true deeds of grant be restored to us as they belong to us, in order that after reserving before all
what to us or to our viceroys, audiencias, and governors may seem necessary for public squares, ways, pastures, and commons in
2. The concept of native title those places which are peopled, taking into consideration not only their present condition, but also their future and their
probable increase, and after distributing to the natives what may be necessary for tillage and pasturage, confirming them in what
they now have and giving them more if necessary, all the rest of said lands may remain free and unencumbered for us to dispose
of as we may wish.
We therefore order and command that all viceroys and presidents of pretorial courts designate at such time as shall to them seem
most expedient, a suitable period within which all possessors of tracts, farms, plantations, and estates shall exhibit to them and to
the court officers appointed by them for this purpose, their title deeds thereto. And those who are in possession by virtue of
proper deeds and receipts, or by virtue of just prescriptive right shall be protected, and all the rest shall be restored to us to be
disposed of at our will."4
The Philippines passed to Spain by virtue of "discovery" and conquest. Consequently, all lands became the exclusive patrimony
and dominion of the Spanish Crown. The Spanish Government took charge of distributing the lands by issuing royal grants and
concessions to Spaniards, both military and civilian.5 Private land titles could only be acquired from the government either by
purchase or by the various modes of land grant from the Crown.6
The Laws of the Indies were followed by the Ley Hipotecaria, or the Mortgage Law of 1893.7 The Spanish Mortgage Law
provided for the systematic registration of titles and deeds as well as possessory claims. The law sought to register and tax lands
pursuant to the Royal Decree of 1880. The Royal Decree of 1894, or the "Maura Law," was partly an amendment of the Mortgage
Law as well as the Laws of the Indies, as already amended by previous orders and decrees.8 This was the last Spanish land law
promulgated in the Philippines. It required the "adjustment" or registration of all agricultural lands, otherwise the lands shall
revert to the state.
Four years later, by the Treaty of Paris of December 10, 1898, Spain ceded to the government of the United States all rights,
interests and claims over the national territory of the Philippine Islands. In 1903, the United States colonial government, through
the Philippine Commission, passed Act No. 926, the first Public Land Act.
B. Valenton v. Murciano
In 1904, under the American regime, this Court decided the case of Valenton v. Murciano.9
Valenton resolved the question of which is the better basis for ownership of land: long-time occupation or paper title. Plaintiffs
had entered into peaceful occupation of the subject land in 1860. Defendant's predecessor-in-interest, on the other hand,
purchased the land from the provincial treasurer of Tarlac in 1892. The lower court ruled against the plaintiffs on the ground that
they had lost all rights to the land by not objecting to the administrative sale. Plaintiffs appealed the judgment, asserting that their
30-year adverse possession, as an extraordinary period of prescription in the Partidas and the Civil Code, had given them title to
the land as against everyone, including the State; and that the State, not owning the land, could not validly transmit it.
The Court, speaking through Justice Willard, decided the case on the basis of "those special laws which from earliest time have
regulated the disposition of the public lands in the colonies."10 The question posed by the Court was: "Did these special laws
recognize any right of prescription as against the State as to these lands; and if so, to what extent was it recognized?"
Prior to 1880, the Court said, there were no laws specifically providing for the disposition of land in the Philippines. However, it
was understood that in the absence of any special law to govern a specific colony, the Laws of the Indies would be followed.
Indeed, in the Royal Order of July 5, 1862, it was decreed that until regulations on the subject could be prepared, the authorities
of the Philippine Islands should follow strictly the Laws of the Indies, the Ordenanza of the Intendentes of 1786, and the Royal
Cedula of 1754.11
Quoting the preamble of Law 14, Title 12, Book 4 of the Recopilacion de Leyes de las Indias, the court interpreted it as follows:
"In the preamble of this law there is, as is seen, a distinct statement that all those lands belong to the Crown which have not been
granted by Philip, or in his name, or by the kings who preceded him. This statement excludes the idea that there might be
lands not so granted, that did not belong to the king. It excludes the idea that the king was not still the owner of all
ungranted lands, because some private person had been in the adverse occupation of them. By the mandatory part of the law all
the occupants of the public lands are required to produce before the authorities named, and within a time to be fixed by them,
their title papers. And those who had good title or showed prescription were to be protected in their holdings. It is apparent that
it was not the intention of the law that mere possession for a length of time should make the possessors the owners of the land
possessed by them without any action on the part of the authorities." 12
The preamble stated that all those lands which had not been granted by Philip, or in his name, or by the kings who preceded him,
belonged to the Crown.13 For those lands granted by the king, the decree provided for a system of assignment of such lands. It
also ordered that all possessors of agricultural land should exhibit their title deed, otherwise, the land would be restored to the
Crown.14
The Royal Cedula of October 15, 1754 reinforced the Recopilacion when it ordered the Crown's principal subdelegate to issue a
general order directing the publication of the Crown's instructions:
"x x x to the end that any and all persons who, since the year 1700, and up to the date of the promulgation and publication of said
order, shall have occupied royal lands, whether or not x x x cultivated or tenanted, may x x x appear and exhibit to said
subdelegates the titles and patents by virtue of which said lands are occupied. x x x. Said subdelegates will at the same time warn
the parties interested that in case of their failure to present their title deeds within the term designated, without a just and valid
reason therefor, they will be deprived of and evicted from their lands, and they will be granted to others." 15
On June 25, 1880, the Crown adopted regulations for the adjustment of lands "wrongfully occupied" by private individuals in the
Philippine Islands. Valenton construed these regulations together with contemporaneous legislative and executive
interpretations of the law, and concluded that plaintiffs' case fared no better under the 1880 decree and other laws which
followed it, than it did under the earlier ones. Thus as a general doctrine, the Court stated:
"While the State has always recognized the right of the occupant to a deed if he proves a possession for a sufficient length of time,
yet it has always insisted that he must make that proof before the proper administrative officers, and obtain from them
his deed, and until he did that the State remained the absolute owner."16
In conclusion, the Court ruled: "We hold that from 1860 to 1892 there was no law in force in these Islands by which the plaintiffs
could obtain the ownership of these lands by prescription, without any action by the State." 17 Valenton had no rights other than
those which accrued to mere possession. Murciano, on the other hand, was deemed to be the owner of the land by virtue of the
grant by the provincial secretary. In effect, Valenton upheld the Spanish concept of state ownership of public land.
As a fitting observation, the Court added that "[t]he policy pursued by the Spanish Government from earliest times,
requiring settlers on the public lands to obtain title deeds therefor from the State, has been continued by the American
Government in Act No. 926."18
C. The Public Land Acts and the Torrens System
Act No. 926, the first Public Land Act, was passed in pursuance of the provisions of the the Philippine Bill of 1902. The law
governed the disposition of lands of the public domain. It prescribed rules and regulations for the homesteading, selling, and
leasing of portions of the public domain of the Philippine Islands, and prescribed the terms and conditions to enable persons to
perfect their titles to public lands in the Islands. It also provided for the "issuance of patents to certain native settlers upon public
lands," for the establishment of town sites and sale of lots therein, for the completion of imperfect titles, and for the cancellation
or confirmation of Spanish concessions and grants in the Islands." In short, the Public Land Act operated on the assumption that
title to public lands in the Philippine Islands remained in the government;19 and that the government's title to public land sprung
from the Treaty of Paris and other subsequent treaties between Spain and the United States. 20 The term "public land" referred to
all lands of the public domain whose title still remained in the government and are thrown open to private appropriation and
settlement,21 and excluded the patrimonial property of the government and the friar lands.22
Act No. 926 was superseded in 1919 by Act 2874, the second Public Land Act. This new law was passed under the Jones Law.
It was more comprehensive in scope but limited the exploitation of agricultural lands to Filipinos and Americans and citizens of
other countries which gave Filipinos the same privileges.23 After the passage of the 1935 Constitution, Act 2874 was amended in
1936 by Commonwealth Act No. 141. Commonwealth Act No. 141 remains the present Public Land Law and it is essentially the
same as Act 2874. The main difference between the two relates to the transitory provisions on the rights of American citizens and
corporations during the Commonwealth period at par with Filipino citizens and corporations.24
Grants of public land were brought under the operation of the Torrens system under Act 496, or the Land Registration
Law of 1903. Enacted by the Philippine Commission, Act 496 placed all public and private lands in the Philippines under the
Torrens system. The law is said to be almost a verbatim copy of the Massachussetts Land Registration Act of 1898,25 which, in
turn, followed the principles and procedure of the Torrens system of registration formulated by Sir Robert Torrens who
patterned it after the Merchant Shipping Acts in South Australia. The Torrens system requires that the government issue an
official certificate of title attesting to the fact that the person named is the owner of the property described therein, subject to
such liens and encumbrances as thereon noted or the law warrants or reserves.26 The certificate of title is indefeasible and
imprescriptible and all claims to the parcel of land are quieted upon issuance of said certificate. This system highly facilitates land
conveyance and negotiation.27
D. The Philippine Constitutions
The Regalian doctrine was enshrined in the 1935 Constitution. One of the fixed and dominating objectives of the 1935
Constitutional Convention was the nationalization and conservation of the natural resources of the country. 28 There was an
overwhelming sentiment in the Convention in favor of the principle of state ownership of natural resources and the
adoption of the Regalian doctrine.29 State ownership of natural resources was seen as a necessary starting point to secure
recognition of the state's power to control their disposition, exploitation, development, or utilization.30 The delegates to the
Constitutional Convention very well knew that the concept of State ownership of land and natural resources was introduced by
the Spaniards, however, they were not certain whether it was continued and applied by the Americans. To remove all doubts, the
Convention approved the provision in the Constitution affirming the Regalian doctrine. 31
Thus, the 1935 Constitution, in Section 1 of Article XIII on "Conservation and Utilization of Natural Resources," reads as follows:
"Sec. 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no license, concession, or lease
for the exploitation, development, or utilization of any of the natural resources shall be granted for a period exceeding twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and the limit of the grant."
The 1973 Constitution reiterated the Regalian doctrine in Section 8, Article XIV on the "National Economy and the Patrimony of
the Nation," to wit:
"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of the Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential, and resettlement lands of the public domain, natural resources shall
not be alienated, and no license, concession, or lease for the exploration, development, exploitation, or utilization of any
of the natural resources shall be granted for a period exceeding twenty-five years, renewable for not more than twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water
power, in which cases beneficial use may be the measure and the limit of the grant."
The 1987 Constitution reaffirmed the Regalian doctrine in Section 2 of Article XII on "National Economy and Patrimony," to wit:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and
utilization of natural resources shall be under the full control and supervision of the State. The State may directly
undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
x x x."
Simply stated, all lands of the public domain as well as all natural resources enumerated therein, whether on public or
private land, belong to the State. It is this concept of State ownership that petitioners claim is being violated by the IPRA.
II. THE INDIGENOUS PEOPLES RIGHTS ACT.
Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/
Indigenous Peoples, Creating a National Commission on Indigenous Peoples, Establishing Implementing Mechanisms,
Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The Indigenous Peoples Rights Act of 1997"
or the IPRA.
The IPRA recognizes the existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector
in Philippine society. It grants these people the ownership and possession of their ancestral domains and ancestral lands,
and defines the extent of these lands and domains. The ownership given is the indigenous concept of ownership under
customary law which traces its origin to native title.
Other rights are also granted the ICCs/IPs, and these are:
- the right to develop lands and natural resources;
- the right to stay in the territories;
- the right in case of displacement;
- the right to safe and clean air and water;
- the right to claim parts of reservations;
- the right to resolve conflict;32
- the right to ancestral lands which include
a. the right to transfer land/property to/among members of the same ICCs/IPs, subject to customary laws
and traditions of the community concerned;
b. the right to redemption for a period not exceeding 15 years from date of transfer, if the transfer is to a
non-member of the ICC/IP and is tainted by vitiated consent of the ICC/IP, or if the transfer is for an
unconscionable consideration.33
Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and
empowerment,34 social justice and human rights,35 the right to preserve and protect their culture, traditions, institutions and
community intellectual rights, and the right to develop their own sciences and technologies. 36
To carry out the policies of the Act, the law created the National Commission on Indigenous Peoples (NCIP). The NCIP is an
independent agency under the Office of the President and is composed of seven (7) Commissioners belonging to ICCs/IPs from
each of the ethnographic areas- Region I and the Cordilleras; Region II; the rest of Luzon; Island groups including Mindoro,
Palawan, Romblon, Panay and the rest of the Visayas; Northern and Western Mindanao; Southern and Eastern Mindanao; and
Central Mindanao.37 The NCIP took over the functions of the Office for Northern Cultural Communities and the Office for Southern
Cultural Communities created by former President Corazon Aquino which were merged under a revitalized structure. 38
Disputes involving ICCs/IPs are to be resolved under customary laws and practices. When still unresolved, the matter may
be brought to the NCIP, which is granted quasi-judicial powers.39 The NCIP's decisions may be appealed to the Court of Appeals
by a petition for review.
Any person who violates any of the provisions of the Act such as, but not limited to, unauthorized and/or unlawful intrusion upon
ancestral lands and domains shall be punished in accordance with customary laws or imprisoned from 9 months to 12 years
and/or fined from ₱100,000.00 to ₱500,000.00 and obliged to pay damages.40
A. Indigenous Peoples
The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the Indigenous
Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs" is the contemporary international language in
the International Labor Organization (ILO) Convention 169 41 and the United Nations (UN) Draft Declaration on the Rights of
Indigenous Peoples.42
ICCs/IPs are defined by the IPRA as:
"Sec. 3 [h]. Indigenous Cultural Communities/ Indigenous Peoples- refer to a group of people or homogeneous societies identified
by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and
defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through
resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically
differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account
of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their
own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who
may have resettled outside their ancestral domains."
Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who have
continuously lived as an organized community on communally bounded and defined territory. These groups of people
have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial. They share
common bonds of language, customs, traditions and other distinctive cultural traits, or, they, by their resistance to political, social
and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the Filipino
majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who
retain some or all of their own social, economic, cultural and political institutions but who may have been displaced from their
traditional territories or who may have resettled outside their ancestral domains.
1. Indigenous Peoples: Their History
Presently, Philippine indigenous peoples inhabit the interiors and mountains of Luzon, Mindanao, Mindoro, Negros, Samar, Leyte,
and the Palawan and Sulu group of islands. They are composed of 110 tribes and are as follows:
1. In the Cordillera Autonomous Region- Kankaney, Ibaloi, Bontoc, Tinggian or Itneg, Ifugao, Kalinga, Yapayao, Aeta or
Agta or Pugot, and Bago of Ilocos Norte and Pangasinan; Ibanag of Isabela, Cagayan; Ilongot of Quirino and Nueva
Vizcaya; Gaddang of Quirino, Nueva Vizcaya, Itawis of Cagayan; Ivatan of Batanes, Aeta of Cagayan, Quirino and
Isabela.
2. In Region III- Aetas.
3. In Region IV- Dumagats of Aurora, Rizal; Remontado of Aurora, Rizal, Quezon; Alangan or Mangyan, Batangan, Buid
or Buhid, Hanunuo and Iraya of Oriental and Occidental Mindoro; Tadyawan of Occidental Mindoro; Cuyonon,
Palawanon, Tagbanua and Tao't bato of Palawan.
4. In Region V- Aeta of Camarines Norte and Camarines Sur; Aeta-Abiyan, Isarog, and Kabihug of Camarines Norte;
Agta, and Mayon of Camarines Sur; Itom of Albay, Cimaron of Sorsogon; and the Pullon of Masbate and Camarines Sur.
5. In Region VI- Ati of Negros Occidental, Iloilo and Antique, Capiz; the Magahat of Negros Occidental; the Corolano and
Sulod.
6. In Region VII- Magahat of Negros Oriental and Eskaya of Bohol.
7. In Region IX- the Badjao numbering about 192,000 in Tawi-Tawi, Zamboanga del Sur; the Kalibugan of Basilan, the
Samal, Subanon and Yakat.
8. Region X- Numbering 1.6 million in Region X alone, the IPs are: the Banwaon, Bukidnon, Matigsalog, Talaanding of
Bukidnon; the Camiguin of Camiguin Island; the Higa-unon of Agusan del Norte, Agusan del Sur, Bukidnon and
Misamis Occidental; the Tigwahanon of Agusan del Sur, Misamis Oriental and and Misamis Occidental, the Manobo of
the Agusan provinces, and the Umayamnon of Agusan and Bukidnon.
9. In Region XI- There are about 1,774,065 IPs in Region XI. They are tribes of the Dibabaon, Mansaka of Davao del
Norte; B'laan, Kalagan, Langilad, T'boli and Talaingod of Davao del Sur; Mamamanua of Surigao del Sur; Mandaya of
the Surigao provinces and Davao Oriental; Manobo Blit of South Cotabato; the Mangguangon of Davao and South
Cotabato; Matigsalog of Davao del Norte and Del Sur; Tagakaolo, Tasaday and Ubo of South Cotabato; and Bagobo of
Davao del sur and South Cotabato.
10. In Region XII- Ilianen, Tiruray, Maguindanao, Maranao, Tausug, Yakan/Samal, and Iranon.43
How these indigenous peoples came to live in the Philippines goes back to as early as 25,000 to 30,000 B.C.
Before the time of Western contact, the Philippine archipelago was peopled largely by the Negritos, Indonesians and
Malays.44 The strains from these groups eventually gave rise to common cultural features which became the dominant influence
in ethnic reformulation in the archipelago. Influences from the Chinese and Indian civilizations in the third or fourth millenium
B.C. augmented these ethnic strains. Chinese economic and socio-cultural influences came by way of Chinese porcelain, silk and
traders. Indian influence found their way into the religious-cultural aspect of pre-colonial society.45
The ancient Filipinos settled beside bodies of water. Hunting and food gathering became supplementary activities as reliance on
them was reduced by fishing and the cultivation of the soil.46 From the hinterland, coastal, and riverine communities, our
ancestors evolved an essentially homogeneous culture, a basically common way of life where nature was a primary
factor. Community life throughout the archipelago was influenced by, and responded to, common ecology. The generally benign
tropical climate and the largely uniform flora and fauna favored similarities, not differences.47 Life was essentially subsistence but
not harsh.48
The early Filipinos had a culture that was basically Malayan in structure and form. They had languages that traced their origin to
the Austronesian parent-stock and used them not only as media of daily communication but also as vehicles for the expression of
their literary moods.49 They fashioned concepts and beliefs about the world that they could not see, but which they sensed to be
part of their lives.50 They had their own religion and religious beliefs. They believed in the immortality of the soul and life after
death. Their rituals were based on beliefs in a ranking deity whom they called Bathalang Maykapal, and a host of other deities, in
the environmental spirits and in soul spirits. The early Filipinos adored the sun, the moon, the animals and birds, for they seemed
to consider the objects of Nature as something to be respected. They venerated almost any object that was close to their daily life,
indicating the importance of the relationship between man and the object of nature.51
The unit of government was the "barangay," a term that derived its meaning from the Malay word "balangay," meaning, a boat,
which transported them to these shores.52 The barangay was basically a family-based community and consisted of thirty to one
hundred families. Each barangay was different and ruled by a chieftain called a "dato." It was the chieftain's duty to rule and
govern his subjects and promote their welfare and interests. A chieftain had wide powers for he exercised all the functions of
government. He was the executive, legislator and judge and was the supreme commander in time of war.53
Laws were either customary or written. Customary laws were handed down orally from generation to generation and
constituted the bulk of the laws of the barangay. They were preserved in songs and chants and in the memory of the elder
persons in the community.54 The written laws were those that the chieftain and his elders promulgated from time to time as the
necessity arose.55 The oldest known written body of laws was the Maragtas Code by Datu Sumakwel at about 1250 A.D. Other old
codes are the Muslim Code of Luwaran and the Principal Code of Sulu.56 Whether customary or written, the laws dealt with
various subjects, such as inheritance, divorce, usury, loans, partnership, crime and punishment, property rights, family relations
and adoption. Whenever disputes arose, these were decided peacefully through a court composed by the chieftain as "judge" and
the barangay elders as "jury." Conflicts arising between subjects of different barangays were resolved by arbitration in which a
board composed of elders from neutral barangays acted as arbiters.57
Baranganic society had a distinguishing feature: the absence of private property in land. The chiefs merely administered
the lands in the name of the barangay. The social order was an extension of the family with chiefs embodying the higher unity of
the community. Each individual, therefore, participated in the community ownership of the soil and the instruments of
production as a member of the barangay.58 This ancient communalism was practiced in accordance with the concept of mutual
sharing of resources so that no individual, regardless of status, was without sustenance. Ownership of land was non-existent or
unimportant and the right of usufruct was what regulated the development of lands. 59 Marine resources and fishing
grounds were likewise free to all. Coastal communities depended for their economic welfare on the kind of fishing sharing
concept similar to those in land communities.60 Recognized leaders, such as the chieftains and elders, by virtue of their positions
of importance, enjoyed some economic privileges and benefits. But their rights, related to either land and sea, were subject to
their responsibility to protect the communities from danger and to provide them with the leadership and means of survival. 61
Sometime in the 13th century, Islam was introduced to the archipelago in Maguindanao. The Sultanate of Sulu was
established and claimed jurisdiction over territorial areas represented today by Tawi-tawi, Sulu, Palawan, Basilan and
Zamboanga. Four ethnic groups were within this jurisdiction: Sama, Tausug, Yakan and Subanon.62 The Sultanate of Maguindanao
spread out from Cotabato toward Maranao territory, now Lanao del Norte and Lanao del Sur.63
The Muslim societies evolved an Asiatic form of feudalism where land was still held in common but was private in
use. This is clearly indicated in the Muslim Code of Luwaran. The Code contains a provision on the lease of cultivated lands. It,
however, has no provision for the acquisition, transfer, cession or sale of land.64
The societies encountered by Magellan and Legaspi therefore were primitive economies where most production was geared to
the use of the producers and to the fulfillment of kinship obligations. They were not economies geared to exchange and
profit.65 Moreover, the family basis of barangay membership as well as of leadership and governance worked to splinter the
population of the islands into numerous small and separate communities.66
When the Spaniards settled permanently in the Philippines in 1565, they found the Filipinos living in barangay
settlements scattered along water routes and river banks. One of the first tasks imposed on the missionaries and the
encomenderos was to collect all scattered Filipinos together in a reduccion.67 As early as 1551, the Spanish government assumed
an unvarying solicitous attitude towards the natives.68 The Spaniards regarded it a sacred "duty to conscience and humanity to
civilize these less fortunate people living in the obscurity of ignorance" and to accord them the "moral and material advantages"
of community life and the "protection and vigilance afforded them by the same laws."69
The Spanish missionaries were ordered to establish pueblos where the church and convent would be constructed. All the new
Christian converts were required to construct their houses around the church and the unbaptized were invited to do the
same.70 With the reduccion, the Spaniards attempted to "tame" the reluctant Filipinos through Christian indoctrination using
the convento/casa real/plaza complex as focal point. The reduccion, to the Spaniards, was a "civilizing" device to make the
Filipinos law-abiding citizens of the Spanish Crown, and in the long run, to make them ultimately adopt Hispanic culture and
civilization.71
All lands lost by the old barangays in the process of pueblo organization as well as all lands not assigned to them and the
pueblos, were now declared to be crown lands or realengas, belonging to the Spanish king. It was from
the realengas that land grants were made to non-Filipinos.72
The abrogation of the Filipinos' ancestral rights in land and the introduction of the concept of public domain were the
most immediate fundamental results of Spanish colonial theory and law. 73 The concept that the Spanish king was the
owner of everything of value in the Indies or colonies was imposed on the natives, and the natives were stripped of their
ancestral rights to land.74
Increasing their foothold in the Philippines, the Spanish colonialists, civil and religious, classified the Filipinos according to their
religious practices and beliefs, and divided them into three types . First were the Indios, the Christianized Filipinos, who
generally came from the lowland populations. Second, were the Moros or the Muslim communities, and third, were
the infieles or the indigenous communities.75
The Indio was a product of the advent of Spanish culture. This class was favored by the Spaniards and was allowed certain status
although below the Spaniards. The Moros and infieles were regarded as the lowest classes.76
The Moros and infieles resisted Spanish rule and Christianity. The Moros were driven from Manila and the Visayas to
Mindanao; while the infieles, to the hinterlands. The Spaniards did not pursue them into the deep interior. The upland
societies were naturally outside the immediate concern of Spanish interest, and the cliffs and forests of the hinterlands were
difficult and inaccessible, allowing the infieles, in effect, relative security.77 Thus, the infieles, which were peripheral to colonial
administration, were not only able to preserve their own culture but also thwarted the Christianization process, separating
themselves from the newly evolved Christian community.78 Their own political, economic and social systems were kept
constantly alive and vibrant.
The pro-Christian or pro-Indio attitude of colonialism brought about a generally mutual feeling of suspicion, fear, and hostility
between the Christians on the one hand and the non-Christians on the other. Colonialism tended to divide and rule an otherwise
culturally and historically related populace through a colonial system that exploited both the virtues and vices of the Filipinos.79
President McKinley, in his instructions to the Philippine Commission of April 7, 1900, addressed the existence of the
infieles:
"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by
Congress in permitting the tribes of our North American Indians to maintain their tribal organization and
government, and under which many of those tribes are now living in peace and contentment, surrounded by civilization to
which they are unable or unwilling to conform. Such tribal government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous
practices and introduce civilized customs."80
Placed in an alternative of either letting the natives alone or guiding them in the path of civilization, the American government
chose "to adopt the latter measure as one more in accord with humanity and with the national conscience." 81
The Americans classified the Filipinos into two: the Christian Filipinos and the non-Christian Filipinos. The term "non-
Christian" referred not to religious belief, but to a geographical area, and more directly, "to natives of the Philippine Islands of a
low grade of civilization, usually living in tribal relationship apart from settled communities."82
Like the Spaniards, the Americans pursued a policy of assimilation. In 1903, they passed Act No. 253 creating the Bureau
of Non-Christian Tribes (BNCT). Under the Department of the Interior, the BNCT's primary task was to conduct ethnographic
research among unhispanized Filipinos, including those in Muslim Mindanao, with a "special view to determining the most
practicable means for bringing about their advancement in civilization and prosperity." The BNCT was modeled after the
bureau dealing with American Indians. The agency took a keen anthropological interest in Philippine cultural minorities and
produced a wealth of valuable materials about them.83
The 1935 Constitution did not carry any policy on the non-Christian Filipinos. The raging issue then was the
conservation of the national patrimony for the Filipinos.
In 1957, the Philippine Congress passed R.A. No. 1888, an "Act to effectuate in a more rapid and complete manner the economic,
social, moral and political advancement of the non-Christian Filipinos or national cultural minorities and to render real, complete,
and permanent the integration of all said national cultural minorities into the body politic, creating the Commission on National
Integration charged with said functions." The law called for a policy of integration of indigenous peoples into the Philippine
mainstream and for this purpose created the Commission on National Integration (CNI).84 The CNI was given, more or less, the
same task as the BNCT during the American regime. The post-independence policy of integration was like the colonial policy
of assimilation understood in the context of a guardian-ward relationship.85
The policy of assimilation and integration did not yield the desired result. Like the Spaniards and Americans, government
attempts at integration met with fierce resistance. Since World War II, a tidal wave of Christian settlers from the lowlands of
Luzon and the Visayas swamped the highlands and wide open spaces in Mindanao.86 Knowledge by the settlers of the Public
Land Acts and the Torrens system resulted in the titling of several ancestral lands in the settlers' names. With
government initiative and participation, this titling displaced several indigenous peoples from their lands. Worse, these
peoples were also displaced by projects undertaken by the national government in the name of national development. 87
It was in the 1973 Constitution that the State adopted the following provision:
"The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and
implementation of State policies."88
For the first time in Philippine history, the "non-Christian tribes" or the "cultural minorities" were addressed by the
highest law of the Republic, and they were referred to as "cultural communities." More importantly this time, their
"uncivilized" culture was given some recognition and their "customs, traditions, beliefs and interests" were to be considered by
the State in the formulation and implementation of State policies. President Marcos abolished the CNI and transferred its
functions to the Presidential Adviser on National Minorities (PANAMIN). The PANAMIN was tasked to integrate the ethnic
groups that sought full integration into the larger community, and at the same time "protect the rights of those who wish to
preserve their original lifeways beside the larger community."89 In short, while still adopting the integration policy, the
decree recognized the right of tribal Filipinos to preserve their way of life. 90
In 1974, President Marcos promulgated P.D. No. 410, otherwise known as the Ancestral Lands Decree. The decree provided
for the issuance of land occupancy certificates to members of the national cultural communities who were given up to 1984 to
register their claims.91 In 1979, the Commission on the Settlement of Land Problems was created under E.O. No. 561 which
provided a mechanism for the expeditious resolution of land problems involving small settlers, landowners, and tribal Filipinos.92
Despite the promulgation of these laws, from 1974 to the early 1980's, some 100,000 Kalingas and Bontoks of the Cordillera
region were displaced by the Chico River dam project of the National Power Corporation (NPC). The Manobos of Bukidnon saw
their land bulldozed by the Bukidnon Sugar Industries Company (BUSCO). In Agusan del Sur, the National Development Company
was authorized by law in 1979 to take approximately 40,550 hectares of land that later became the NDC-Guthrie plantation in
Agusan del Sur. Most of the land was possessed by the Agusan natives.93 Timber concessions, water projects, plantations, mining,
and cattle ranching and other projects of the national government led not only to the eviction of the indigenous peoples from
their land but also to the reduction and destruction of their natural environment.94
The Aquino government signified a total shift from the policy of integration to one of preservation. Invoking her powers
under the Freedom Constitution, President Aquino created the Office of Muslim Affairs, Office for Northern Cultural
Communities and the Office for Southern Cultural Communities all under the Office of the President.95
The 1987 Constitution carries at least six (6) provisions which insure the right of tribal Filipinos to preserve their way of
life.96 This Constitution goes further than the 1973 Constitution by expressly guaranteeing the rights of tribal Filipinos
to their ancestral domains and ancestral lands. By recognizing their right to their ancestral lands and domains, the State
has effectively upheld their right to live in a culture distinctly their own.
2. Their Concept of Land
Indigenous peoples share distinctive traits that set them apart from the Filipino mainstream. They are non-Christians. They
live in less accessible, marginal, mostly upland areas. They have a system of self-government not dependent upon the laws of the
central administration of the Republic of the Philippines. They follow ways of life and customs that are perceived as different
from those of the rest of the population.97 The kind of response the indigenous peoples chose to deal with colonial threat worked
well to their advantage by making it difficult for Western concepts and religion to erode their customs and traditions. The
"infieles societies" which had become peripheral to colonial administration, represented, from a cultural perspective, a much
older base of archipelagic culture. The political systems were still structured on the patriarchal and kinship oriented arrangement
of power and authority. The economic activities were governed by the concepts of an ancient communalism and mutual help. The
social structure which emphasized division of labor and distinction of functions, not status, was maintained. The cultural styles
and forms of life portraying the varieties of social courtesies and ecological adjustments were kept constantly vibrant.98
Land is the central element of the indigenous peoples' existence. There is no traditional concept of permanent, individual,
land ownership. Among the Igorots, ownership of land more accurately applies to the tribal right to use the land or to territorial
control. The people are the secondary owners or stewards of the land and that if a member of the tribe ceases to work, he loses
his claim of ownership, and the land reverts to the beings of the spirit world who are its true and primary owners. Under the
concept of "trusteeship," the right to possess the land does not only belong to the present generation but the future ones as well.99
Customary law on land rests on the traditional belief that no one owns the land except the gods and spirits, and that those who
work the land are its mere stewards.100 Customary law has a strong preference for communal ownership, which could either
be ownership by a group of individuals or families who are related by blood or by marriage,101 or ownership by residents of the
same locality who may not be related by blood or marriage. The system of communal ownership under customary laws draws its
meaning from the subsistence and highly collectivized mode of economic production. The Kalingas, for instance, who are engaged
in team occupation like hunting, foraging for forest products, and swidden farming found it natural that forest areas, swidden
farms, orchards, pasture and burial grounds should be communally-owned.102 For the Kalingas, everybody has a common right to
a common economic base. Thus, as a rule, rights and obligations to the land are shared in common.
Although highly bent on communal ownership, customary law on land also sanctions individual ownership. The
residential lots and terrace rice farms are governed by a limited system of individual ownership. It is limited because while the
individual owner has the right to use and dispose of the property, he does not possess all the rights of an exclusive and full owner
as defined under our Civil Code.103 Under Kalinga customary law, the alienation of individually-owned land is strongly
discouraged except in marriage and succession and except to meet sudden financial needs due to sickness, death in the family, or
loss of crops.104 Moreover, and to be alienated should first be offered to a clan-member before any village-member can purchase
it, and in no case may land be sold to a non-member of the ili.105
Land titles do not exist in the indigenous peoples' economic and social system. The concept of individual land ownership
under the civil law is alien to them. Inherently colonial in origin, our national land laws and governmental policies
frown upon indigenous claims to ancestral lands. Communal ownership is looked upon as inferior, if not inexistent. 106
III. THE IPRA IS A NOVEL PIECE OF LEGISLATION.
A. The Legislative History of the IPRA
It was to address the centuries-old neglect of the Philippine indigenous peoples that the Tenth Congress of the Philippines,
by their joint efforts, passed and approved R.A. No. 8371, the Indigenous Peoples Rights Act (IPRA) of 1997. The law was a
consolidation of two Bills- Senate Bill No. 1728 and House Bill No. 9125.
Principally sponsored by Senator Juan M. Flavier,107 Senate Bill No. 1728 was a consolidation of four proposed measures
referred to the Committees on Cultural Communities, Environment and Natural Resources, Ways and Means, as well as Finance. It
adopted almost en toto the comprehensive version of Senate Bill Nos. 1476 and 1486 which was a result of six regional
consultations and one national consultation with indigenous peoples nationwide. 108 At the Second Regular Session of the
Tenth Congress, Senator Flavier, in his sponsorship speech, gave a background on the situation of indigenous peoples in the
Philippines, to wit:
"The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of
government controlled by the majority. Massive migration of their Christian brothers to their homeland shrunk their territory
and many of the tribal Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and
with the massive exploitation of their natural resources by the elite among the migrant population, they became marginalized.
And the government has been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities
(ICCs). It organized and supported the resettlement of people to their ancestral land, which was massive during the
Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our system by
Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale
landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs."109
Senator Flavier further declared:
"The IPs are the offsprings and heirs of the peoples who have first inhabited and cared for the land long before any central
government was established. Their ancestors had territories over which they ruled themselves and related with other tribes.
These territories- the land- include people, their dwelling, the mountains, the water, the air, plants, forest and the animals. This is
their environment in its totality. Their existence as indigenous peoples is manifested in their own lives through political,
economic, socio-cultural and spiritual practices. The IPs culture is the living and irrefutable proof to this.
Their survival depends on securing or acquiring land rights; asserting their rights to it; and depending on it. Otherwise, IPs shall
cease to exist as distinct peoples."110
To recognize the rights of the indigenous peoples effectively, Senator Flavier proposed a bill based on two postulates: (1) the
concept of native title; and (2) the principle of parens patriae.
According to Senator Flavier, "[w]hile our legal tradition subscribes to the Regalian Doctrine reinstated in Section 2, Article XII of
the 1987 Constitution," our "decisional laws" and jurisprudence passed by the State have "made exception to the doctrine." This
exception was first laid down in the case of Cariño v. Insular Government where:
"x x x the court has recognized long occupancy of land by an indigenous member of the cultural communities as one of private
ownership, which, in legal concept, is termed "native title." This ruling has not been overturned. In fact, it was affirmed in
subsequent cases."111
Following Cariño, the State passed Act No. 926, Act No. 2874, C.A. No. 141, P.D. 705, P.D. 410, P.D. 1529, R.A. 6734 (the Organic
Act for the Autonomous Region of Muslim Mindanao). These laws, explicitly or implicitly, and liberally or restrictively, recognized
"native title" or "private right" and the existence of ancestral lands and domains. Despite the passage of these laws, however,
Senator Flavier continued:
"x x x the executive department of government since the American occupation has not implemented the policy. In fact, it was
more honored in its breach than in its observance, its wanton disregard shown during the period unto the Commonwealth and
the early years of the Philippine Republic when government organized and supported massive resettlement of the people to the
land of the ICCs."
Senate Bill No. 1728 seeks to genuinely recognize the IPs right to own and possess their ancestral land. The bill was prepared also
under the principle of parens patriae inherent in the supreme power of the State and deeply embedded in Philippine legal
tradition. This principle mandates that persons suffering from serious disadvantage or handicap, which places them in a position
of actual inequality in their relation or transaction with others, are entitled to the protection of the State.
Senate Bill No. 1728 was passed on Third Reading by twenty-one (21) Senators voting in favor and none against, with no
abstention.112
House Bill No. 9125 was sponsored by Rep. Zapata, Chairman of the Committee on Cultural Communities. It was originally
authored and subsequently presented and defended on the floor by Rep. Gregorio Andolana of North Cotabato.113
Rep. Andolana's sponsorhip speech reads as follows:
"This Representation, as early as in the 8th Congress, filed a bill of similar implications that would promote, recognize the rights
of indigenous cultural communities within the framework of national unity and development.
Apart from this, Mr. Speaker, is our obligation, the government's obligation to assure and ascertain that these rights shall be well-
preserved and the cultural traditions as well as the indigenous laws that remained long before this Republic was established shall
be preserved and promoted. There is a need, Mr. Speaker, to look into these matters seriously and early approval of the substitute
bill shall bring into reality the aspirations, the hope and the dreams of more than 12 million Filipinos that they be considered in
the mainstream of the Philippine society as we fashion for the year 2000." 114
Rep. Andolana stressed that H.B. No. 9125 is based on the policy of preservation as mandated in the Constitution. He also
emphasized that the rights of IPs to their land was enunciated in Cariño v. Insular Government which recognized the fact that
they had vested rights prior to the establishment of the Spanish and American regimes. 115
After exhaustive interpellation, House Bill No. 9125, and its corresponding amendments, was approved on Second
Reading with no objections.
IV. THE PROVISIONS OF THE IPRA DO NOT CONTRAVENE THE CONSTITUTION.
A. Ancestral Domains and Ancestral Lands are the Private Property of Indigenous Peoples and Do Not Constitute Part of
the Land of the Public Domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral lands. Ancestral lands are
not the same as ancestral domains. These are defined in Section 3 [a] and [b] of the Indigenous Peoples Right Act, viz:
"Sec. 3 a) Ancestral Domains. - Subject to Section 56 hereof, refer to all areas generally belonging to ICCs/IPs comprising lands,
inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs
by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except
when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or
any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to
ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and
other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas,
bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but
from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of
ICCs/IPs who are still nomadic and/or shifting cultivators;
b) Ancestral Lands.- Subject to Section 56 hereof, refers to land occupied, possessed and utilized by individuals, families and
clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors-in-interest, under
claims of individual or traditional group ownership, continuously, to the present except when interrupted by war, force majeure
or displacement by force, deceit, stealth, or as a consequence of government projects and other voluntary dealings entered into
by government and private individuals/corporations, including, but not limited to, residential lots, rice terraces or paddies,
private forests, swidden farms and tree lots."
Ancestral domains are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by
themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except
when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or
any other voluntary dealings with government and/or private individuals or corporations. Ancestral domains comprise lands,
inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential,
agricultural, and other lands individually owned whether alienable or not, hunting grounds, burial grounds, worship
areas, bodies of water, mineral and other natural resources. They also include lands which may no longer be exclusively
occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly
the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators.116
Ancestral lands are lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are limited to
lands and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual
or traditional group ownership. These lands include but are not limited to residential lots, rice terraces or paddies, private
forests, swidden farms and tree lots.117
The procedures for claiming ancestral domains and lands are similar to the procedures embodied in Department Administrative
Order (DAO) No. 2, series of 1993, signed by then Secretary of the Department of Environment and Natural Resources (DENR)
Angel Alcala.118 DAO No. 2 allowed the delineation of ancestral domains by special task forces and ensured the issuance of
Certificates of Ancestral Land Claims (CALC's) and Certificates of Ancestral Domain Claims (CADC's) to IPs.
The identification and delineation of these ancestral domains and lands is a power conferred by the IPRA on the National
Commission on Indigenous Peoples (NCIP).119 The guiding principle in identification and delineation is self-delineation.120 This
means that the ICCs/IPs have a decisive role in determining the boundaries of their domains and in all the activities pertinent
thereto.121
The procedure for the delineation and recognition of ancestral domains is set forth in Sections 51 and 52 of the IPRA. The
identification, delineation and certification of ancestral lands is in Section 53 of said law.
Upon due application and compliance with the procedure provided under the law and upon finding by the NCIP that the
application is meritorious, the NCIP shall issue a Certificate of Ancestral Domain Title (CADT) in the name of the community
concerned.122 The allocation of lands within the ancestral domain to any individual or indigenous corporate (family or clan)
claimants is left to the ICCs/IPs concerned to decide in accordance with customs and traditions.123 With respect to
ancestral lands outside the ancestral domain, the NCIP issues a Certificate of Ancestral Land Title (CALT).124
CADT's and CALT's issued under the IPRA shall be registered by the NCIP before the Register of Deeds in the place where the
property is situated.125
(1) Right to Ancestral Domains and Ancestral Lands: How Acquired
The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired in two modes: (1) by native title over
both ancestral lands and domains; or (2) by torrens title under the Public Land Act and the Land Registration Act with
respect to ancestral lands only.
(2) The Concept of Native Title
Native title is defined as:
"Sec. 3 [l]. Native Title- refers to pre-conquest rights to lands and domains which, as far back as memory reaches, have been held
under a claim of private ownership by ICCs/IPs, have never been public lands and are thus indisputably presumed to have
been held that way since before the Spanish Conquest."126
Native title refers to ICCs/IPs' preconquest rights to lands and domains held under a claim of private ownership as far back as
memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to have been held that
way since before the Spanish Conquest. The rights of ICCs/IPs to their ancestral domains (which also include ancestral lands) by
virtue of native title shall be recognized and respected.127 Formal recognition, when solicited by ICCs/IPs concerned, shall be
embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the
territories identified and delineated.128
Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is a right of private
ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA categorically declares ancestral lands
and domains held by native title as never to have been public land. Domains and lands held under native title are, therefore,
indisputably presumed to have never been public lands and are private.
(a) Cariño v. Insular Government129
The concept of native title in the IPRA was taken from the 1909 case of Cariño v. Insular Government.130 Cariño firmly
established a concept of private land title that existed irrespective of any royal grant from the State.
In 1903, Don Mateo Cariño, an Ibaloi, sought to register with the land registration court 146 hectares of land in Baguio
Municipality, Benguet Province. He claimed that this land had been possessed and occupied by his ancestors since time
immemorial; that his grandfather built fences around the property for the holding of cattle and that his father cultivated some
parts of the land. Cariño inherited the land in accordance with Igorot custom. He tried to have the land adjusted under the
Spanish land laws, but no document issued from the Spanish Crown.131 In 1901, Cariño obtained a possessory title to the land
under the Spanish Mortgage Law.132 The North American colonial government, however, ignored his possessory title and built a
public road on the land prompting him to seek a Torrens title to his property in the land registration court. While his petition was
pending, a U.S. military reservation133 was proclaimed over his land and, shortly thereafter, a military detachment was detailed
on the property with orders to keep cattle and trespassers, including Cariño, off the land.134
In 1904, the land registration court granted Cariño's application for absolute ownership to the land. Both the Government of the
Philippine Islands and the U.S. Government appealed to the C.F.I. of Benguet which reversed the land registration court and
dismissed Cariño's application. The Philippine Supreme Court135 affirmed the C.F.I. by applying the Valenton ruling. Cariño took
the case to the U.S. Supreme Court.136 On one hand, the Philippine government invoked the Regalian doctrine and contended that
Cariño failed to comply with the provisions of the Royal Decree of June 25, 1880, which required registration of land claims
within a limited period of time. Cariño, on the other, asserted that he was the absolute owner of the land jure gentium, and that
the land never formed part of the public domain.
In a unanimous decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court held:
"It is true that Spain, in its earlier decrees, embodied the universal feudal theory that all lands were held from the Crown, and
perhaps the general attitude of conquering nations toward people not recognized as entitled to the treatment accorded to those
in the same zone of civilization with themselves. It is true, also, that in legal theory, sovereignty is absolute, and that, as against
foreign nations, the United States may assert, as Spain asserted, absolute power. But it does not follow that, as against the
inhabitants of the Philippines, the United States asserts that Spain had such power. When theory is left on one side, sovereignty is
a question of strength, and may vary in degree. How far a new sovereign shall insist upon the theoretical relation of the subjects
to the head in the past, and how far it shall recognize actual facts, are matters for it to decide." 137
The U.S. Supreme Court noted that it need not accept Spanish doctrines. The choice was with the new colonizer. Ultimately, the
matter had to be decided under U.S. law.
The Cariño decision largely rested on the North American constitutionalist's concept of "due process" as well as the pronounced
policy "to do justice to the natives."138 It was based on the strong mandate extended to the Islands via the Philippine Bill of 1902
that "No law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of
law, or deny to any person therein the equal protection of the laws." The court declared:
"The acquisition of the Philippines was not like the settlement of the white race in the United States. Whatever consideration may
have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy land. It is obvious
that, however stated, the reason for our taking over the Philippines was different. No one, we suppose, would deny that, so far as
consistent with paramount necessities, our first object in the internal administration of the islands is to do justice to the natives,
not to exploit their country for private gain. By the Organic Act of July 1, 1902, chapter 1369, section 12 (32 Statutes at Large,
691), all the property and rights acquired there by the United States are to be administered 'for the benefit of the inhabitants
thereof.' It is reasonable to suppose that the attitude thus assumed by the United States with regard to what was unquestionably
its own is also its attitude in deciding what it will claim for its own. The same statute made a bill of rights, embodying the
safeguards of the Constitution, and, like the Constitution, extends those safeguards to all. It provides that 'no law shall be enacted
in said islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws.' In the light of the declaration that we have quoted from section 12, it is hard to believe
that the United States was ready to declare in the next breath that "any person" did not embrace the inhabitants of Benguet, or
that it meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants
never had heard, and that it proposed to treat as public land what they, by native custom and by long association,- of the
profoundest factors in human thought,- regarded as their own."139
The Court went further:
"Every presumption is and ought to be against the government in a case like the present. It might, perhaps, be proper and
sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim
of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and
never to have been public land. Certainly in a case like this, if there is doubt or ambiguity in the Spanish law, we ought to give
the applicant the benefit of the doubt."140
The court thus laid down the presumption of a certain title held (1) as far back as testimony or memory went, and (2) under a
claim of private ownership. Land held by this title is presumed to "never have been public land."
Against this presumption, the U.S. Supreme Court analyzed the Spanish decrees upheld in the 1904 decision of Valenton v.
Murciano. The U.S. Supreme Court found no proof that the Spanish decrees did not honor native title. On the contrary, the
decrees discussed in Valenton appeared to recognize that the natives owned some land, irrespective of any royal grant. The
Regalian doctrine declared in the preamble of the Recopilacion was all "theory and discourse" and it was observed that titles were
admitted to exist beyond the powers of the Crown, viz:
"If the applicant's case is to be tried by the law of Spain, we do not discover such clear proof that it was bad by that law as
to satisfy us that he does not own the land. To begin with, the older decrees and laws cited by the counsel for the plaintiff
in error seem to indicate pretty clearly that the natives were recognized as owning some lands, irrespective of any royal
grant. In other words, Spain did not assume to convert all the native inhabitants of the Philippines into trespassers or even into
tenants at will. For instance, Book 4, title 12, Law 14 of the the Recopilacion de Leyes de las Indias, cited for a contrary conclusion
in Valenton v. Murciano, 3 Philippine 537, while it commands viceroys and others, when it seems proper, to call for the exhibition
of grants, directs them to confirm those who hold by good grants or justa prescripcion. It is true that it begins by the
characteristic assertion of feudal overlordship and the origin of all titles in the King or his predecessors. That was
theory and discourse. The fact was that titles were admitted to exist that owed nothing to the powers of Spain beyond
this recognition in their books." (Emphasis supplied).141
The court further stated that the Spanish "adjustment" proceedings never held sway over unconquered territories. The wording
of the Spanish laws were not framed in a manner as to convey to the natives that failure to register what to them has always been
their own would mean loss of such land. The registration requirement was "not to confer title, but simply to establish it;" it was
"not calculated to convey to the mind of an Igorot chief the notion that ancient family possessions were in danger, if he had read
every word of it."
By recognizing this kind of title, the court clearly repudiated the doctrine of Valenton. It was frank enough, however, to admit
the possibility that the applicant might have been deprived of his land under Spanish law because of the inherent ambiguity of the
decrees and concomitantly, the various interpretations which may be given them. But precisely because of the ambiguity and
of the strong "due process mandate" of the Constitution, the court validated this kind of title. 142 This title was sufficient,
even without government administrative action, and entitled the holder to a Torrens certificate. Justice Holmes explained:
"It will be perceived that the rights of the applicant under the Spanish law present a problem not without difficulties for courts of
a legal tradition. We have deemed it proper on that account to notice the possible effect of the change of sovereignty and the act
of Congress establishing the fundamental principles now to be observed. Upon a consideration of the whole case we are of the
opinion that law and justice require that the applicant should be granted what he seeks, and should not be deprived of what, by
the practice and belief of those among whom he lived, was his property, through a refined interpretation of an almost forgotten
law of Spain."143
Thus, the court ruled in favor of Cariño and ordered the registration of the 148 hectares in Baguio Municipality in his
name.144
Examining Cariño closer, the U.S. Supreme Court did not categorically refer to the title it upheld as "native title." It simply said:
"The Province of Benguet was inhabited by a tribe that the Solicitor-General, in his argument, characterized as a savage
tribe that never was brought under the civil or military government of the Spanish Crown. It seems probable, if not
certain, that the Spanish officials would not have granted to anyone in that province the registration to which formerly
the plaintiff was entitled by the Spanish Laws, and which would have made his title beyond question good. Whatever may
have been the technical position of Spain it does not follow that, in the view of the United States, he had lost all rights and was a
mere trespasser when the present government seized his land. The argument to that effect seems to amount to a denial of native
titles through an important part of the Island of Luzon, at least, for the want of ceremonies which the Spaniards would not have
permitted and had not the power to enforce."145
This is the only instance when Justice Holmes used the term "native title" in the entire length of the Cariño decision. It is
observed that the widespread use of the term "native title" may be traced to Professor Owen James Lynch, Jr., a Visiting Professor
at the University of the Philippines College of Law from the Yale University Law School. In 1982, Prof. Lynch published an article
in the Philippine Law Journal entitled Native Title, Private Right and Tribal Land Law.146 This article was made after
Professor Lynch visited over thirty tribal communities throughout the country and studied the origin and development of
Philippine land laws.147 He discussed Cariño extensively and used the term "native title" to refer to Cariño's title as discussed and
upheld by the U.S. Supreme Court in said case.
(b) Indian Title
In a footnote in the same article, Professor Lynch stated that the concept of "native title" as defined by Justice Holmes in Cariño "is
conceptually similar to "aboriginal title" of the American Indians.148 This is not surprising, according to Prof. Lynch, considering
that during the American regime, government policy towards ICCs/IPs was consistently made in reference to native
Americans.149 This was clearly demonstrated in the case of Rubi v. Provincial Board of Mindoro.150
In Rubi, the Provincial Board of Mindoro adopted a Resolution authorizing the provincial governor to remove the Mangyans from
their domains and place them in a permanent reservation in Sitio Tigbao, Lake Naujan. Any Mangyan who refused to comply was
to be imprisoned. Rubi and some Mangyans, including one who was imprisoned for trying to escape from the reservation, filed for
habeas corpus claiming deprivation of liberty under the Board Resolution. This Court denied the petition on the ground of police
power. It upheld government policy promoting the idea that a permanent settlement was the only successful method for
educating the Mangyans, introducing civilized customs, improving their health and morals, and protecting the public forests in
which they roamed.151 Speaking through Justice Malcolm, the court said:
"Reference was made in the President's instructions to the Commission to the policy adopted by the United States for the Indian
Tribes. The methods followed by the Government of the Philippine Islands in its dealings with the so-called non-Christian people
is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian
tribes. Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized
relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the
Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.152
x x x.
As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical. But even admitting
similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from
different parts of the country and placed on these reservations, without any previous consultation as to their own wishes, and
that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the
country. If any lesson can be drawn from the Indian policy of the United States, it is that the determination of this policy is for the
legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to
upset a carefully planned governmental system. Perhaps, just as many forceful reasons exist for the segregation of the
Manguianes in Mindoro as existed for the segregation of the different Indian tribes in the United States." 153
Rubi applied the concept of Indian land grants or reservations in the Philippines. An Indian reservation is a part of the public
domain set apart by proper authority for the use and occupation of a tribe or tribes of Indians.154 It may be set apart by an act of
Congress, by treaty, or by executive order, but it cannot be established by custom and prescription.155
Indian title to land, however, is not limited to land grants or reservations. It also covers the "aboriginal right of
possession or occupancy."156 The aboriginal right of possession depends on the actual occupancy of the lands in question by the
tribe or nation as their ancestral home, in the sense that such lands constitute definable territory occupied exclusively by the
particular tribe or nation.157 It is a right which exists apart from any treaty, statute, or other governmental action, although in
numerous instances treaties have been negotiated with Indian tribes, recognizing their aboriginal possession and delimiting their
occupancy rights or settling and adjusting their boundaries.158
American jurisprudence recognizes the Indians' or native Americans' rights to land they have held and occupied before
the "discovery" of the Americas by the Europeans. The earliest definitive statement by the U.S. Supreme Court on the
nature of aboriginal title was made in 1823 in Johnson & Graham's Lessee v. M'Intosh.159
In Johnson, the plaintiffs claimed the land in question under two (2) grants made by the chiefs of two (2) Indian tribes. The U.S.
Supreme Court refused to recognize this conveyance, the plaintiffs being private persons. The only conveyance that was
recognized was that made by the Indians to the government of the European discoverer. Speaking for the court, Chief Justice
Marshall pointed out that the potentates of the old world believed that they had made ample compensation to the inhabitants of
the new world by bestowing civilization and Christianity upon them; but in addition, said the court, they found it necessary, in
order to avoid conflicting settlements and consequent war, to establish the principle that discovery gives title to the
government by whose subjects, or by whose authority, the discovery was made, against all other European governments,
which title might be consummated by possession.160 The exclusion of all other Europeans gave to the nation making the
discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. As regards the natives, the
court further stated that:
"Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus
acquired being exclusive, no other power could interpose between them.
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were
necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as
well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete
sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to
whomsoever they pleased, was denied by the fundamental principle that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate
dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant
the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees,
subject only to the Indian right of occupancy."161
Thus, the discoverer of new territory was deemed to have obtained the exclusive right to acquire Indian land and extinguish
Indian titles. Only to the discoverer- whether to England, France, Spain or Holland- did this right belong and not to any other
nation or private person. The mere acquisition of the right nonetheless did not extinguish Indian claims to land. Rather, until the
discoverer, by purchase or conquest, exercised its right, the concerned Indians were recognized as the "rightful occupants of the
soil, with a legal as well as just claim to retain possession of it." Grants made by the discoverer to her subjects of lands occupied
by the Indians were held to convey a title to the grantees, subject only to the Indian right of occupancy. Once the discoverer
purchased the land from the Indians or conquered them, it was only then that the discoverer gained an absolute title unrestricted
by Indian rights.
The court concluded, in essence, that a grant of Indian lands by Indians could not convey a title paramount to the title of the
United States itself to other parties, saying:
"It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned.
The claim of government extends to the complete ultimate title, charged with this right of possession, and to the
exclusive power of acquiring that right."162
It has been said that the history of America, from its discovery to the present day, proves the universal recognition of this
principle.163
The Johnson doctrine was a compromise. It protected Indian rights and their native lands without having to invalidate
conveyances made by the government to many U.S. citizens.164
Johnson was reiterated in the case of Worcester v. Georgia.165 In this case, the State of Georgia enacted a law requiring all white
persons residing within the Cherokee nation to obtain a license or permit from the Governor of Georgia; and any violation of the
law was deemed a high misdemeanor. The plaintiffs, who were white missionaries, did not obtain said license and were thus
charged with a violation of the Act.
The U.S. Supreme Court declared the Act as unconstitutional for interfering with the treaties established between the United
States and the Cherokee nation as well as the Acts of Congress regulating intercourse with them. It characterized the relationship
between the United States government and the Indians as:
"The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential
wants, and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their
protector. They had been arranged under the protection of Great Britain; but the extinguishment of the British power in their
neighborhood, and the establishment of that of the United States in its place, led naturally to the declaration, on the part of the
Cherokees, that they were under the protection of the United States, and of no other power. They assumed the relation with the
United States which had before subsisted with Great Britain.
This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning
their national character, and submitting as subjects to the laws of a master." 166
It was the policy of the U.S. government to treat the Indians as nations with distinct territorial boundaries and recognize their
right of occupancy over all the lands within their domains. Thus:
"From the commencement of our government Congress has passed acts to regulate trade and intercourse with the Indians; which
treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these
acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political
communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands
within those boundaries, which is not only acknowledged, but guaranteed by the United States.
x x x.
"The Indian nations had always been considered as distinct, independent political communities, retaining their original
natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by
irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the
coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as
well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct from others." x x x. 167
The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which
the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the
Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United
States and this nation is, by our Constitution and laws, vested in the government of the United States."168
The discovery of the American continent gave title to the government of the discoverer as against all other European
governments. Designated as the naked fee,169 this title was to be consummated by possession and was subject to the Indian title
of occupancy. The discoverer acknowledged the Indians' legal and just claim to retain possession of the land, the Indians being
the original inhabitants of the land. The discoverer nonetheless asserted the exclusive right to acquire the Indians' land- either by
purchase, "defensive" conquest, or cession- and in so doing, extinguish the Indian title. Only the discoverer could extinguish
Indian title because it alone asserted ultimate dominion in itself. Thus, while the different nations of Europe respected the rights
of the natives as occupants, they all asserted the ultimate dominion and title to be in themselves. 170
As early as the 19th century, it became accepted doctrine that although fee title to the lands occupied by the Indians
when the colonists arrived became vested in the sovereign- first the discovering European nation and later the original
13 States and the United States- a right of occupancy in the Indian tribes was nevertheless recognized. The Federal
Government continued the policy of respecting the Indian right of occupancy, sometimes called Indian title, which it accorded the
protection of complete ownership.171 But this aboriginal Indian interest simply constitutes "permission" from the whites to
occupy the land, and means mere possession not specifically recognized as ownership by Congress.172 It is clear that this right of
occupancy based upon aboriginal possession is not a property right.173 It is vulnerable to affirmative action by the federal
government who, as sovereign, possessed exclusive power to extinguish the right of occupancy at will. 174 Thus, aboriginal title
is not the same as legal title. Aboriginal title rests on actual, exclusive and continuous use and occupancy for a long time. 175 It
entails that land owned by Indian title must be used within the tribe, subject to its laws and customs, and cannot be sold to
another sovereign government nor to any citizen.176 Such title as Indians have to possess and occupy land is in the tribe, and not
in the individual Indian; the right of individual Indians to share in the tribal property usually depends upon tribal membership,
the property of the tribe generally being held in communal ownership.177
As a rule, Indian lands are not included in the term "public lands," which is ordinarily used to designate such lands as are subject
to sale or other disposal under general laws.178 Indian land which has been abandoned is deemed to fall into the public
domain.179 On the other hand, an Indian reservation is a part of the public domain set apart for the use and occupation of a tribe
of Indians.180 Once set apart by proper authority, the reservation ceases to be public land, and until the Indian title is
extinguished, no one but Congress can initiate any preferential right on, or restrict the nation's power to dispose of, them. 181
The American judiciary struggled for more than 200 years with the ancestral land claims of indigenous
Americans.182 And two things are clear. First, aboriginal title is recognized. Second, indigenous property systems are also
recognized. From a legal point of view, certain benefits can be drawn from a comparison of Philippine IPs to native
Americans.183 Despite the similarities between native title and aboriginal title, however, there are at present some misgivings on
whether jurisprudence on American Indians may be cited authoritatively in the Philippines. The U.S. recognizes the possessory
rights of the Indians over their land; title to the land, however, is deemed to have passed to the U.S. as successor of the discoverer.
The aboriginal title of ownership is not specifically recognized as ownership by action authorized by Congress. 184 The protection
of aboriginal title merely guards against encroachment by persons other than the Federal Government. 185 Although there are
criticisms against the refusal to recognize the native Americans' ownership of these lands,186 the power of the State to extinguish
these titles has remained firmly entrenched.187
Under the IPRA, the Philippine State is not barred form asserting sovereignty over the ancestral domains and ancestral
lands.188 The IPRA, however, is still in its infancy and any similarities between its application in the Philippines vis-à-vis American
Jurisprudence on aboriginal title will depend on the peculiar facts of each case.
(c) Why the Cariño doctrine is unique
In the Philippines, the concept of native title first upheld in Cariño and enshrined in the IPRA grants ownership, albeit in limited
form, of the land to the ICCs/IPs. Native title presumes that the land is private and was never public. Cariño is the only case that
specifically and categorically recognizes native title. The long line of cases citing Cariño did not touch on native title and
the private character of ancestral domains and lands. Cariño was cited by the succeeding cases to support the concept of
acquisitive prescription under the Public Land Act which is a different matter altogether. Under the Public Land Act, land
sought to be registered must be public agricultural land. When the conditions specified in Section 48 [b] of the Public Land Act
are complied with, the possessor of the land is deemed to have acquired, by operation of law, a right to a grant of the land.189 The
land ceases to be part of the public domain,190 ipso jure,191 and is converted to private property by the mere lapse or completion
of the prescribed statutory period.
It was only in the case of Oh Cho v. Director of Lands192 that the court declared that the rule that all lands that were not acquired
from the government, either by purchase or grant, belong to the public domain has an exception. This exception would be any
land that should have been in the possession of an occupant and of his predecessors-in-interest since time immemorial. It is this
kind of possession that would justify the presumption that the land had never been part of the public domain or that it had been
private property even before the Spanish conquest.193 Oh Cho, however, was decided under the provisions of the Public Land Act
and Cariño was cited to support the applicant's claim of acquisitive prescription under the said Act.
All these years, Cariño had been quoted out of context simply to justify long, continuous, open and adverse possession in the
concept of owner of public agricultural land. It is this long, continuous, open and adverse possession in the concept of owner of
thirty years both for ordinary citizens194 and members of the national cultural minorities195 that converts the land from public
into private and entitles the registrant to a torrens certificate of title.
(3) The Option of Securing a Torrens Title to the Ancestral Land Indicates that the Land is Private.
The private character of ancestral lands and domains as laid down in the IPRA is further strengthened by the option given to
individual ICCs/IPs over their individually-owned ancestral lands. For purposes of registration under the Public Land Act
and the Land Registration Act, the IPRA expressly converts ancestral land into public agricultural land which may be
disposed of by the State. The necessary implication is that ancestral land is private. It, however, has to be first converted
to public agricultural land simply for registration purposes. To wit:
"Sec. 12. Option to Secure Certificate of Title Under Commonwealth Act 141, as amended, or the Land Registration Act 496-
Individual members of cultural communities, with respect to their individually-owned ancestral lands who, by themselves or
through their predecessors-in-interest, have been in continuous possession and occupation of the same in the concept of owner
since time immemorial or for a period of not less than thirty (30) years immediately preceding the approval of this Act and
uncontested by the members of the same ICCs/IPs shall have the option to secure title to their ancestral lands under the
provisions of Commonwealth Act 141, as amended, or the Land Registration Act 496.
For this purpose, said individually-owned ancestral lands, which are agricultural in character and actually used for agricultural,
residential, pasture, and tree farming purposes, including those with a slope of eighteen percent (18%) or more, are hereby
classified as alienable and disposable agricultural lands.
The option granted under this section shall be exercised within twenty (20) years from the approval of this Act." 196
ICCs/IPs are given the option to secure a torrens certificate of title over their individually-owned ancestral lands. This option is
limited to ancestral lands only, not domains, and such lands must be individually, not communally, owned.
Ancestral lands that are owned by individual members of ICCs/IPs who, by themselves or through their predecessors-in-
interest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial 197 or for
a period of not less than 30 years, which claims are uncontested by the members of the same ICCs/IPs, may be registered under
C.A. 141, otherwise known as the Public Land Act, or Act 496, the Land Registration Act. For purposes of registration, the
individually-owned ancestral lands are classified as alienable and disposable agricultural lands of the public domain, provided,
they are agricultural in character and are actually used for agricultural, residential, pasture and tree farming purposes. These
lands shall be classified as public agricultural lands regardless of whether they have a slope of 18% or more.
The classification of ancestral land as public agricultural land is in compliance with the requirements of the Public Land Act and
the Land Registration Act. C.A. 141, the Public Land Act, deals specifically with lands of the public domain. 198 Its provisions apply
to those lands "declared open to disposition or concession" x x x "which have not been reserved for public or quasi-public
purposes, nor appropriated by the Government, nor in any manner become private property, nor those on which a private right
authorized and recognized by this Act or any other valid law x x x or which having been reserved or appropriated, have ceased to
be so."199 Act 496, the Land Registration Act, allows registration only of private lands and public agricultural lands. Since
ancestral domains and lands are private, if the ICC/IP wants to avail of the benefits of C.A. 141 and Act 496, the IPRA
itself converts his ancestral land, regardless of whether the land has a slope of eighteen per cent (18%) or over, 200 from
private to public agricultural land for proper disposition.
The option to register land under the Public Land Act and the Land Registration Act has nonetheless a limited period. This option
must be exercised within twenty (20) years from October 29, 1997, the date of approval of the IPRA.
Thus, ancestral lands and ancestral domains are not part of the lands of the public domain. They are private and belong
to the ICCs/IPs. Section 3 of Article XII on National Economy and Patrimony of the 1987 Constitution classifies lands of the
public domain into four categories: (a) agricultural, (b) forest or timber, (c) mineral lands, and (d) national parks. Section 5 of
the same Article XII mentions ancestral lands and ancestral domains but it does not classify them under any of the said four
categories. To classify them as public lands under any one of the four classes will render the entire IPRA law a nullity. The
spirit of the IPRA lies in the distinct concept of ancestral domains and ancestral lands. The IPRA addresses the major problem of
the ICCs/IPs which is loss of land. Land and space are of vital concern in terms of sheer survival of the ICCs/IPs. 201
The 1987 Constitution mandates the State to "protect the rights of indigenous cultural communities to their ancestral
lands" and that "Congress provide for the applicability of customary laws x x x in determining the ownership and extent
of ancestral domain."202 It is the recognition of the ICCs/IPs distinct rights of ownership over their ancestral domains
and lands that breathes life into this constitutional mandate.
B. The right of ownership and possession by the ICCs/IPs of their ancestral domains is a limited form of ownership and
does not include the right to alienate the same.
Registration under the Public Land Act and Land Registration Act recognizes the concept of ownership under the civil law. This
ownership is based on adverse possession for a specified period, and harkens to Section 44 of the Public Land Act on
administrative legalization (free patent) of imperfect or incomplete titles and Section 48 (b) and (c) of the same Act on the
judicial confirmation of imperfect or incomplete titles. Thus:
"Sec. 44. Any natural-born citizen of the Philippines who is not the owner of more than twenty-four hectares and who since July
fourth, 1926 or prior thereto, has continuously occupied and cultivated, either by himself or through his predecessors-in-interest,
a tract or tracts of agricultural public lands subject to disposition, or who shall have paid the real estate tax thereon while the
same has not been occupied by any person shall be entitled, under the provisions of this chapter, to have a free patent issued to
him for such tract or tracts of such land not to exceed twenty-four hectares.
A member of the national cultural minorities who has continuously occupied and cultivated, either by himself or
through his predecessors-in-interest, a tract or tracts of land, whether disposable or not since July 4, 1955, shall be
entitled to the right granted in the preceding paragraph of this section: Provided, That at the time he files his free patent
application he is not the owner of any real property secured or disposable under the provision of the Public Land Law.203
x x x.
"Sec. 48. The following described citizens of the Philippines, occupying lands of the public domain or claiming to own any such
lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First Instance of the
province where the land is located for confirmation of their claims and the issuance of a certificate of title therefor, under the
Land Registration Act, to wit:
(a) [perfection of Spanish titles] xxx.
(b) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive, and
notorious possession and occupation of agricultural lands of the public domain, under a bona fide claim of acquisition
or ownership, for at least thirty years immediately preceding the filing of the application for confirmation of title
except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the
conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this
Chapter.
(c) Members of the national cultural minorities who by themselves or through their predecessors-in-interest
have been in open, continuous, exclusive and notorious possession and occupation of lands of the public
domain suitable to agriculture, whether disposable or not, under a bona fide claim of ownership for at least
30 years shall be entitled to the rights granted in sub-section (b) hereof."204
Registration under the foregoing provisions presumes that the land was originally public agricultural land but because of adverse
possession since July 4, 1955 (free patent) or at least thirty years (judicial confirmation), the land has become private. Open,
adverse, public and continuous possession is sufficient, provided, the possessor makes proper application therefor. The
possession has to be confirmed judicially or administratively after which a torrens title is issued.
A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of ownership under
the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428 and 429. This concept is based on Roman
Law which the Spaniards introduced to the Philippines through the Civil Code of 1889. Ownership, under Roman Law, may be
exercised over things or rights. It primarily includes the right of the owner to enjoy and dispose of the thing owned. And the right
to enjoy and dispose of the thing includes the right to receive from the thing what it produces,205 the right to consume the thing
by its use,206 the right to alienate, encumber, transform or even destroy the thing owned,207 and the right to exclude from the
possession of the thing owned by any other person to whom the owner has not transmitted such thing. 208
1. The Indigenous Concept of Ownership and Customary Law.
Ownership of ancestral domains by native title does not entitle the ICC/IP to a torrens title but to a Certificate of Ancestral
Domain Title (CADT). The CADT formally recognizes the indigenous concept of ownership of the ICCs/IPs over their ancestral
domain. Thus:
"Sec. 5. Indigenous concept of ownership.- Indigenous concept of ownership sustains the view that ancestral domains and all
resources found therein shall serve as the material bases of their cultural integrity. The indigenous concept of ownership
generally holds that ancestral domains are the ICCs/IPs private but community property which belongs to all generations and
therefore cannot be sold, disposed or destroyed. It likewise covers sustainable traditional resource rights."
The right of ownership and possession of the ICCs/IPs to their ancestral domains is held under the indigenous concept of
ownership. This concept maintains the view that ancestral domains are the ICCs/IPs private but community property. It
is private simply because it is not part of the public domain. But its private character ends there. The ancestral domain is
owned in common by the ICCs/IPs and not by one particular person. The IPRA itself provides that areas within the ancestral
domains, whether delineated or not, are presumed to be communally held.209 These communal rights, however, are not
exactly the same as co-ownership rights under the Civil Code.210 Co-ownership gives any co-owner the right to demand
partition of the property held in common. The Civil Code expressly provides that "no co-owner shall be obliged to remain in the
co-ownership." Each co-owner may demand at any time the partition of the thing in common, insofar as his share is
concerned.211 To allow such a right over ancestral domains may be destructive not only of customary law of the community but of
the very community itself.212
Communal rights over land are not the same as corporate rights over real property, much less corporate condominium
rights. A corporation can exist only for a maximum of fifty (50) years subject to an extension of another fifty years in any single
instance.213 Every stockholder has the right to disassociate himself from the corporation.214 Moreover, the corporation itself may
be dissolved voluntarily or involuntarily.215
Communal rights to the land are held not only by the present possessors of the land but extends to all generations of the
ICCs/IPs, past, present and future, to the domain. This is the reason why the ancestral domain must be kept within the
ICCs/IPs themselves. The domain cannot be transferred, sold or conveyed to other persons. It belongs to the ICCs/IPs as a
community.
Ancestral lands are also held under the indigenous concept of ownership. The lands are communal. These lands, however,
may be transferred subject to the following limitations: (a) only to the members of the same ICCs/IPs; (b) in accord with
customary laws and traditions; and (c) subject to the right of redemption of the ICCs/IPs for a period of 15 years if the land was
transferred to a non-member of the ICCs/IPs.
Following the constitutional mandate that "customary law govern property rights or relations in determining the ownership and
extent of ancestral domains,"216 the IPRA, by legislative fiat, introduces a new concept of ownership. This is a concept that
has long existed under customary law.217
Custom, from which customary law is derived, is also recognized under the Civil Code as a source of law. 218 Some articles
of the Civil Code expressly provide that custom should be applied in cases where no codal provision is applicable. 219 In other
words, in the absence of any applicable provision in the Civil Code, custom, when duly proven, can define rights and liabilities.220
Customary law is a primary, not secondary, source of rights under the IPRA and uniquely applies to ICCs/IPs. Its recognition
does not depend on the absence of a specific provision in the civil law. The indigenous concept of ownership under
customary law is specifically acknowledged and recognized, and coexists with the civil law concept and the laws on land titling
and land registration.221
To be sure, the indigenous concept of ownership exists even without a paper title. The CADT is merely a "formal
recognition" of native title. This is clear from Section 11 of the IPRA, to wit:
"Sec. 11. Recognition of Ancestral Domain Rights.- The rights of ICCs/IPs to their ancestral domains by virtue of Native Title shall
be recognized and respected. Formal recognition, when solicited by ICCs/IPs concerned shall be embodied in a Certificate of
Ancestral Domain Title, which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated."
The moral import of ancestral domain, native land or being native is "belongingness" to the land, being people of the land- by
sheer force of having sprung from the land since time beyond recall, and the faithful nurture of the land by the sweat of one's
brow. This is fidelity of usufructuary relation to the land- the possession of stewardship through perduring, intimate tillage, and
the mutuality of blessings between man and land; from man, care for land; from the land, sustenance for man.222
C. Sections 7 (a), 7 (b) and 57 of the IPRA Do Not Violate the Regalian Doctrine Enshrined in Section 2, Article XII of the
1987 Constitution.
1. The Rights of ICCs/IPs Over Their Ancestral Domains and Lands
The IPRA grants the ICCs/IPs several rights over their ancestral domains and ancestral lands. Section 7 provides for the rights
over ancestral domains:
"Sec. 7. Rights to Ancestral Domains.- The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be
recognized and protected. Such rights include:
a) Right of Ownership.- The right to claim ownership over lands, bodies of water traditionally and actually
occupied by ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by
them at any time within the domains;
b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, the right to develop, control and
use lands and territories traditionally occupied, owned, or used; to manage and conserve natural resources
within the territories and uphold the responsibilities for future generations; to benefit and share the profits
from allocation and utilization of the natural resources found therein; the right to negotiate the terms and
conditions for the exploration of natural resources in the areas for the purpose of ensuring ecological,
environmental protection and the conservation measures, pursuant to national and customary laws; the right
to an informed and intelligent participation in the formulation and implementation of any project, government or
private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; and the right to effective measures by the government to
prevent any interference with, alienation and encroachment upon these rights;"
c) Right to Stay in the Territories.- The right to stay in the territory and not to be removed therefrom. No ICCs/IPs will
be relocated without their free and prior informed consent, nor through any means other than eminent domain. x x x;
d) Right in Case of Displacement.- In case displacement occurs as a result of natural catastrophes, the State shall
endeavor to resettle the displaced ICCs/IPs in suitable areas where they can have temporary life support systems: x x
x;
e) Right to Regulate the Entry of Migrants.- Right to regulate the entry of migrant settlers and organizations into their
domains;
f) Right to Safe and Clean Air and Water.-For this purpose, the ICCs/IPs shall have access to integrated systems for the
management of their inland waters and air space;
g) Right to Claim Parts of Reservations.- The right to claim parts of the ancestral domains which have been reserved for
various purposes, except those reserved and intended for common and public welfare and service;
h) Right to Resolve Conflict.- Right to resolve land conflicts in accordance with customary laws of the area where the
land is located, and only in default thereof shall the complaints be submitted to amicable settlement and to the Courts
of Justice whenever necessary."
Section 8 provides for the rights over ancestral lands:
"Sec. 8. Rights to Ancestral Lands.- The right of ownership and possession of the ICCs/IPs to their ancestral lands shall be
recognized and protected.
a) Right to transfer land/property.- Such right shall include the right to transfer land or property rights to/among
members of the same ICCs/IPs, subject to customary laws and traditions of the community concerned.
b) Right to Redemption.- In cases where it is shown that the transfer of land/property rights by virtue of any
agreement or devise, to a non-member of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or
is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the
same within a period not exceeding fifteen (15) years from the date of transfer."
Section 7 (a) defines the ICCs/IPs the right of ownership over their ancestral domains which covers (a) lands, (b) bodies of
water traditionally and actually occupied by the ICCs/IPs, (c) sacred places, (d) traditional hunting and fishing grounds, and (e)
all improvements made by them at any time within the domains. The right of ownership includes the following rights: (1) the
right to develop lands and natural resources; (b) the right to stay in the territories; (c) the right to resettlement in case of
displacement; (d) the right to regulate the entry of migrants; (e) the right to safe and clean air and water; (f) the right to claim
parts of the ancestral domains as reservations; and (g) the right to resolve conflict in accordance with customary laws.
Section 8 governs their rights to ancestral lands. Unlike ownership over the ancestral domains, Section 8 gives the ICCs/IPs also
the right to transfer the land or property rights to members of the same ICCs/IPs or non-members thereof. This is in keeping with
the option given to ICCs/IPs to secure a torrens title over the ancestral lands, but not to domains.
2. The Right of ICCs/IPs to Develop Lands and Natural Resources Within the Ancestral Domains Does Not Deprive the State of
Ownership Over the Natural Resources and Control and Supervision in their Development and Exploitation.
The Regalian doctrine on the ownership, management and utilization of natural resources is declared in Section 2, Article XII of
the 1987 Constitution, viz:
"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and
utilization of natural resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or, it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such
citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries,
water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and
limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish
farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the state shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from
its execution."223
All lands of the public domain and all natural resources- waters, minerals, coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources- are owned by the State.
The Constitution provides that in the exploration, development and utilization of these natural resources, the State exercises full
control and supervision, and may undertake the same in four (4) modes:
1. The State may directly undertake such activities; or
 2. The State may enter into co-production, joint venture or production-sharing agreements with Filipino citizens or
qualified corporations;
3. Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens;
4. For the large-scale exploration, development and utilization of minerals, petroleum and other mineral oils, the
President may enter into agreements with foreign-owned corporations involving technical or financial assistance.
As owner of the natural resources, the State is accorded primary power and responsibility in the exploration,
development and utilization of these natural resources. The State may directly undertake the exploitation and development
by itself, or, it may allow participation by the private sector through co-production,224 joint venture,225 or production-sharing
agreements.226 These agreements may be for a period of 25 years, renewable for another 25 years. The State, through Congress,
may allow the small-scale utilization of natural resources by Filipino citizens. For the large-scale exploration of these resources,
specifically minerals, petroleum and other mineral oils, the State, through the President, may enter into technical and financial
assistance agreements with foreign-owned corporations.
Under the Philippine Mining Act of 1995, (R.A. 7942) and the People's Small-Scale Mining Act of 1991 (R.A. 7076) the three types
of agreements, i.e., co-production, joint venture or production-sharing, may apply to both large-scale227 and small-scale
mining.228 "Small-scale mining" refers to "mining activities which rely heavily on manual labor using simple implements and
methods and do not use explosives or heavy mining equipment."229
Examining the IPRA, there is nothing in the law that grants to the ICCs/IPs ownership over the natural resources within
their ancestral domains. The right of ICCs/IPs in their ancestral domains includes ownership, but this "ownership" is
expressly defined and limited in Section 7 (a) as:
"Sec. 7. a) Right of ownership- The right to claim ownership over lands, bodies of water traditionally and actually occupied by
ICCs/IPs, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the
domains;"
The ICCs/IPs are given the right to claim ownership over "lands, bodies of water traditionally and actually occupied by ICCs/IPs,
sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains." It
will be noted that this enumeration does not mention bodies of water not occupied by the
ICCs/IPs, minerals, coal, wildlife, flora and fauna in the traditional hunting grounds, fish in the traditional fishing
grounds, forests or timber in the sacred places, etc. and all other natural resources found within the ancestral domains. Indeed,
the right of ownership under Section 7 (a) does not cover "waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all other natural resources"
enumerated in Section 2, Article XII of the 1987 Constitution as belonging to the State.
The non-inclusion of ownership by the ICCs/IPs over the natural resources in Section 7(a) complies with the Regalian doctrine.
(a) Section 1, Part II, Rule III of the Implementing Rules Goes Beyond the Parameters of Sec. 7 (a) of the IPRA And is
Unconstitutional.
The Rules Implementing the IPRA230 in Section 1, Part II, Rule III reads:
"Section 1. Rights of Ownership. ICCs/IPs have rights of ownership over lands, waters, and natural resources and all improvements
made by them at any time within the ancestral domains/ lands. These rights shall include, but not limited to, the right over the
fruits, the right to possess, the right to use, right to consume, right to exclude and right to recover ownership, and the rights or
interests over land and natural resources. The right to recover shall be particularly applied to lands lost through fraud or any
form or vitiated consent or transferred for an unconscionable price."
Section 1 of the Implementing Rules gives the ICCs/IPs rights of ownership over "lands, waters and natural resources." The term
"natural resources" is not one of those expressly mentioned in Section 7 (a) of the law. Our Constitution and jurisprudence clearly
declare that the right to claim ownership over land does not necessarily include the right to claim ownership over the natural
resources found on or under the land.231 The IPRA itself makes a distinction between land and natural resources. Section 7
(a) speaks of the right of ownership only over the land within the ancestral domain. It is Sections 7 (b) and 57 of the law
that speak of natural resources, and these provisions, as shall be discussed later, do not give the ICCs/IPs the right of
ownership over these resources.
The constitutionality of Section 1, Part II, Rule III of the Implementing Rules was not specifically and categorically challenged by
petitioners. Petitioners actually assail the constitutionality of the Implementing Rules in general. 232 Nevertheless, to avoid any
confusion in the implementation of the law, it is necessary to declare that the inclusion of "natural resources" in Section 1, Part II,
Rule III of the Implementing Rules goes beyond the parameters of Section 7 (b) of the law and is contrary to Section 2, Article
XII of the 1987 Constitution.
(b) The Small-Scale Utilization of Natural Resources In Sec. 7 (b) of the IPRA Is Allowed Under Paragraph 3, Section 2 of
Article XII of the Constitution.
Ownership over natural resources remain with the State and the IPRA in Section 7 (b) merely grants the ICCs/IPs the right to
manage them, viz:
"Sec. 7 (b) Right to Develop Lands and Natural Resources.- Subject to Section 56 hereof, right to develop, control and use lands
and territories traditionally occupied, owned, or used; to manage and conserve natural resources within the territories and
uphold the responsibilities for future generations; to benefit and share the profits from allocation and utilization of the natural
resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources in the areas for
the purpose of ensuring ecological, environmental protection and the conservation measures, pursuant to national and
customary laws; the right to an informed and intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any
damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any
interference with, alienation and encroachment upon these rights;"
The right to develop lands and natural resources under Section 7 (b) of the IPRA enumerates the following rights:
a) the right to develop, control and use lands and territories traditionally occupied;
b) the right to manage and conserve natural resources within the territories and uphold the responsibilities for future
generations;
c) the right to benefit and share the profits from the allocation and utilization of the natural resources found therein;
d) the right to negotiate the terms and conditions for the exploration of natural resources for the purpose of ensuring
ecological, environmental protection and the conservation measures, pursuant to national and customary laws;
e) the right to an informed and intelligent participation in the formulation and implementation of any project,
government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation
for any damages which they may sustain as a result of the project;
f) the right to effective measures by the government to prevent any interference with, alienation and encroachment
upon these rights.233
Ownership over the natural resources in the ancestral domains remains with the State and the ICCs/IPs are merely
granted the right to "manage and conserve" them for future generations, "benefit and share" the profits from their
allocation and utilization, and "negotiate the terms and conditions for their exploration" for the purpose of "ensuring
ecological and environmental protection and conservation measures." It must be noted that the right to negotiate the terms
and conditions over the natural resources covers only their exploration which must be for the purpose of ensuring ecological and
environmental protection of, and conservation measures in the ancestral domain. It does not extend to the exploitation and
development of natural resources.
Simply stated, the ICCs/IPs' rights over the natural resources take the form of management or stewardship. For the
ICCs/IPs may use these resources and share in the profits of their utilization or negotiate the terms for their exploration. At the
same time, however, the ICCs/IPs must ensure that the natural resources within their ancestral domains are conserved for future
generations and that the "utilization" of these resources must not harm the ecology and environment pursuant to national and
customary laws.234
The limited rights of "management and use" in Section 7 (b) must be taken to contemplate small-scale utilization of
natural resources as distinguished from large-scale. Small-scale utilization of natural resources is expressly allowed in
the third paragraph of Section 2, Article XII of the Constitution "in recognition of the plight of forest dwellers, gold panners,
marginal fishermen and others similarly situated who exploit our natural resources for their daily sustenance and
survival."235 Section 7 (b) also expressly mandates the ICCs/IPs to manage and conserve these resources and ensure
environmental and ecological protection within the domains, which duties, by their very nature, necessarily reject utilization in a
large-scale.
(c) The Large-Scale Utilization of Natural Resources In Section 57 of the IPRA Is Allowed Under Paragraphs 1 and 4,
Section 2, Article XII of the 1987 Constitution.
Section 57 of the IPRA provides:
"Sec. 57. Natural Resources within Ancestral Domains.- The ICCs/IPs shall have priority rights in the harvesting, extraction,
development or exploitation of any natural resources within the ancestral domains. A non-member of the ICCs/IPs
concerned may be allowed to take part in the development and utilization of the natural resources for a period of not exceeding
twenty-five (25) years renewable for not more than twenty-five (25) years: Provided, That a formal and written agreement is
entered into with the ICCs/IPs concerned or that the community, pursuant to its own decision-making process, has agreed to
allow such operation: Provided finally, That the NCIP may exercise visitorial powers and take appropriate action to safeguard the
rights of the ICCs/IPs under the same contract."
Section 57 speaks of the "harvesting, extraction, development or exploitation of natural resources within ancestral domains"
and "gives the ICCs/IPs 'priority rights' therein." The terms "harvesting, extraction, development or exploitation" of any
natural resources within the ancestral domains obviously refer to large-scale utilization. It is utilization not merely for
subsistence but for commercial or other extensive use that require technology other than manual labor. 236 The law recognizes the
probability of requiring a non-member of the ICCs/IPs to participate in the development and utilization of the natural resources
and thereby allows such participation for a period of not more than 25 years, renewable for another 25 years. This may be done
on condition that a formal written agreement be entered into by the non-member and members of the ICCs/IPs.
Section 57 of the IPRA does not give the ICCs/IPs the right to "manage and conserve" the natural resources. Instead, the law only
grants the ICCs/IPs "priority rights" in the development or exploitation thereof. Priority means giving preference. Having priority
rights over the natural resources does not necessarily mean ownership rights. The grant of priority rights implies that there is
a superior entity that owns these resources and this entity has the power to grant preferential rights over the resources to
whosoever itself chooses.
Section 57 is not a repudiation of the Regalian doctrine. Rather, it is an affirmation of the said doctrine that all natural resources
found within the ancestral domains belong to the State. It incorporates by implication the Regalian doctrine, hence, requires that
the provision be read in the light of Section 2, Article XII of the 1987 Constitution. Interpreting Section 2, Article XII of the
1987 Constitution237 in relation to Section 57 of IPRA, the State, as owner of these natural resources, may directly
undertake the development and exploitation of the natural resources by itself, or in the alternative, it may recognize the
priority rights of the ICCs/IPs as owners of the land on which the natural resources are found by entering into a co-
production, joint venture, or production-sharing agreement with them. The State may likewise enter into any of said
agreements with a non-member of the ICCs/IPs, whether natural or juridical, or enter into agreements with foreign-
owned corporations involving either technical or financial assistance for the large-scale exploration, development and
utilization of minerals, petroleum, and other mineral oils, or allow such non-member to participate in its agreement
with the ICCs/IPs. If the State decides to enter into an agreement with a non-ICC/IP member, the National Commission on
Indigenous Peoples (NCIP) shall ensure that the rights of the ICCs/IPs under the agreement shall be protected. The agreement
shall be for a period of 25 years, renewable for another 25 years.
To reiterate, in the large-scale utilization of natural resources within the ancestral domains, the State, as owner of these
resources, has four (4) options: (1) it may, of and by itself, directly undertake the development and exploitation of the natural
resources; or (2) it may recognize the priority rights of the ICCs/IPs by entering into an agreement with them for such
development and exploitation; or (3) it may enter into an agreement with a non-member of the ICCs/IPs, whether natural or
juridical, local or foreign; or (4) it may allow such non-member to participate in the agreement with the ICCs/IPs.
The rights granted by the IPRA to the ICCs/IPs over the natural resources in their ancestral domains merely gives the
ICCs/IPs, as owners and occupants of the land on which the resources are found, the right to the small-scale utilization of
these resources, and at the same time, a priority in their large-scale development and exploitation. Section 57 does not
mandate the State to automatically give priority to the ICCs/IPs. The State has several options and it is within its
discretion to choose which option to pursue. Moreover, there is nothing in the law that gives the ICCs/IPs the right to solely
undertake the large-scale development of the natural resources within their domains. The ICCs/IPs must undertake such
endeavour always under State supervision or control. This indicates that the State does not lose control and ownership over the
resources even in their exploitation. Sections 7 (b) and 57 of the law simply give due respect to the ICCs/IPs who, as actual
occupants of the land where the natural resources lie, have traditionally utilized these resources for their subsistence and
survival.
Neither is the State stripped of ownership and control of the natural resources by the following provision:
"Section 59. Certification Precondition.- All departments and other governmental agencies shall henceforth be strictly enjoined
from issuing, renewing or granting any concession, license or lease, or entering into any production-sharing agreement. without
prior certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only
be issued after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no
certification shall be issued by the NCIP without the free and prior informed and written consent of the ICCs/IPs
concerned: Provided, further, That no department, government agency or government-owned or -controlled corporation may
issue new concession, license, lease, or production sharing agreement while there is a pending application for a CADT: Provided,
finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the
requirement of this consultation process."
Concessions, licenses, lease or production-sharing agreements for the exploitation of natural resources shall not be issued,
renewed or granted by all departments and government agencies without prior certification from the NCIP that the area subject
of the agreement does not overlap with any ancestral domain. The NCIP certification shall be issued only after a field-based
investigation shall have been conducted and the free and prior informed written consent of the ICCs/IPs obtained. Non-
compliance with the consultation requirement gives the ICCs/IPs the right to stop or suspend any project granted by any
department or government agency.
As its subtitle suggests, this provision requires as a precondition for the issuance of any concession, license or agreement over
natural resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within any
ancestral domain. The provision does not vest the NCIP with power over the other agencies of the State as to determine whether
to grant or deny any concession or license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs have
been informed of the agreement and that their consent thereto has been obtained. Note that the certification applies to
agreements over natural resources that do not necessarily lie within the ancestral domains. For those that are found within the
said domains, Sections 7(b) and 57 of the IPRA apply.
V. THE IPRA IS A RECOGNITION OF OUR ACTIVE PARTICIPATION IN THE INDIGENOUS INTERNATIONAL MOVEMENT.
The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric times. The
movement received a massive impetus during the 1960's from two sources. First, the decolonization of Asia and Africa brought
into the limelight the possibility of peoples controlling their own destinies. Second, the right of self-determination was enshrined
in the UN Declaration on Human Rights.238 The rise of the civil rights movement and anti-racism brought to the attention of North
American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and
freedoms.
In 1974 and 1975, international indigenous organizations were founded, 239 and during the 1980's, indigenous affairs were on the
international agenda. The people of the Philippine Cordillera were the first Asians to take part in the international indigenous
movement. It was the Cordillera People's Alliance that carried out successful campaigns against the building of the Chico River
Dam in 1981-82 and they have since become one of the best-organized indigenous bodies in the world.240

Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the increased
publicity focused on the continuing disrespect for indigenous human rights and the destruction of the indigenous peoples'
environment, together with the national governments' inability to deal with the situation.241 Indigenous rights came as a result of
both human rights and environmental protection, and have become a part of today's priorities for the international agenda. 242

International institutions and bodies have realized the necessity of applying policies, programs and specific rules concerning IPs
in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the dismal experience of projects in
Latin America.243 The World Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This policy has
provided an influential model for the projects of the Asian Development Bank.244

The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the promotion of
their rights within the framework of national unity and development.245 The IPRA amalgamates the Philippine category of ICCs
with the international category of IPs,246 and is heavily influenced by both the International Labor Organization (ILO) Convention
169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples. 247

ILO Convention No. 169 is entitled the "Convention Concerning Indigenous and Tribal Peoples in Independent Countries" 248 and
was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Covenant on Civil and Political Rights, and many other international instruments on
the prevention of discrimination.249 ILO Convention No. 169 revised the "Convention Concerning the Protection and Integration
of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries" (ILO No. 107) passed on June 26, 1957.
Developments in international law made it appropriate to adopt new international standards on indigenous peoples "with a view
to removing the assimilationist orientation of the earlier standards," and recognizing the aspirations of these peoples to exercise
control over their own institutions, ways of life and economic development." 250

CONCLUSION

The struggle of the Filipinos throughout colonial history had been plagued by ethnic and religious differences. These differences
were carried over and magnified by the Philippine government through the imposition of a national legal order that is mostly
foreign in origin or derivation.251 Largely unpopulist, the present legal system has resulted in the alienation of a large sector of
society, specifically, the indigenous peoples. The histories and cultures of the indigenes are relevant to the evolution of Philippine
culture and are vital to the understanding of contemporary problems.252 It is through the IPRA that an attempt was made by our
legislators to understand Filipino society not in terms of myths and biases but through common experiences in the course of
history. The Philippines became a democracy a centennial ago and the decolonization process still continues. If the evolution of
the Filipino people into a democratic society is to truly proceed democratically, i.e., if the Filipinos as a whole are to participate
fully in the task of continuing democratization,253 it is this Court's duty to acknowledge the presence of indigenous and customary
laws in the country and affirm their co-existence with the land laws in our national legal system.

With the foregoing disquisitions, I vote to uphold the constitutionality of the Indigenous Peoples Rights Act of 1997.
-Ilagan vs. Enrile, G.R. No. 70748 October 21, 1985
G.R. No. 70748 October 21, 1985
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO B. ARELLANO, and MARCOS
D. RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal Assistance Group [FLAG] and Movement of Attorneys
For Brotherhood, Integrity and Nationalism, Inc., [MABINI], petitioners,
vs.
HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting Chief of Staff, Armed Forces of
the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP Regional Commander for Region XI, Camp Catitipan, Davao
City, respondents.
Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac, Fulgencio S. Factoran, Francisco I. Chavez , Lorenzo M.
Tañada, Wigberto Tañada and Martiniano Vivo for petitioners.
The Solicitor General for respondents.
MELENCIO-HERRERA, J.:
This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal Assistance Group (FLAG);
and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys Laurente C. Ilagan,
Antonio B. Arellano, and Marcos Risonar, Jr.
The facts follow:
On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp
Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day, fifteen lawyers
from the IBP Davao Chapter visited Atty. Ilagan. One of the visiting lawyers, Atty. Antonio Arellano, was also arrested and
detained on the basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the IBP Davao Chapter that
Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan to verify his arrest papers and was
detained on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander.
This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter referred to as the
detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on
the basis of Mission Orders. and that there appears to be a military campaign to harass lawyers involved in national security
cases.
On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May 23, 1985.
In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA issued by the President
on January 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A; and that
pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al, 1 Courts lack the authority to inquire into the cause and validity of
detention of persons held pursuant to the suspension. Respondents further expounded on the state of rebellion in Davao City on
the basis of seized subversive documents, implying that the detained attorneys played active roles in organizing mass actions of
the Communist Party of the Philippines and the National Democratic Front. Respondents then prayed for the denial of the
petition.
During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of their arrest and detention.
Counsel for the respondents, on the other hand, presented evidence of subversive activities in Davao, but due to lack of evidence
linking the detained attorneys with the alleged subversive activities, the Court, on the same day resolved to order the temporary
release of the detained attorneys on the recognizance of the principal counsel of petitioner's, namely, retired Chief Justice
Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further resolved to give petitioners ten days within
which to file a traverse to the Return of the Writ and the respondents ten days to file a Reply thereto.
The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained attorneys had not yet
been released and praying that they be released to the custody of the principal counsel of petioners at the Supreme Court.
On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of Release reiterating that the
suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and attached
thereto classified documents consisting of the Report of respondent Brig. Gen. Tan-Gatue stating that the detained attorneys
"were arrested not on the basis of their 'lawyering' but for specific acts of rebellion and economic sabotage as well as for their
leadership in the CPP" ... "even to the extent of attending CPP and NPA rites and using their profession as lawyers as cover-up for
their activities in furtherance of CPP goals and objectives;" and that the detained attorneys were involved in the Welgang Bayan
in Davao City, a mass action "with demands for the armed overthrow of the government." Sworn statements of several persons
also implicated the detained attorneys in alleged subversive activities. Respondents added that, while there is a Court Order
directing release, they, too, are under orders, pursuant to the PDA, to hold in custody the detained attorneys until ordered
released by the President or by his duly authorized representative, and that the PDA, when issued, constitutes authority to
preventively detain them for a period not exceeding one year.
On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for Rebellion was filed on May
27, 1985 against the detained attorneys before the Regional Trial Court of Davao City, Branch X, docketed as Criminal Case No.
12,349; that a Warrant of Arrest had been issued against them; and praying that this Petition be dismissed for having been
rendered moot and academic.
On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation contending that since the
detained attorneys were not given the benefit of preliminary investigation, they were denied their constitutional right to due
process; consequently, the Information for Rebellion filed against them is void. Respondents, on the other hand, filed on the same
day a Comment to petitioners' Manifestation and Motion reiterating their prayer for the dismissal of the petition on the ground of
mootness by virtue of the proceedings before the Regional Trial Court of Davao.
On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the "Welgang Bayans" were in legitimate
exercise of the constitutional right of expression and assembly to petition the government for redress of grievances; that the
detained attorneys' participation was limited to serving in the legal panel and the negotiating panels; that Proclamation No. 2045
is unconstitutional because there exists no factual or legal basis for the suspension of the Writ of Habeas Corpus as provided for in
the Constitution; that the evidence presented by respondents against the detained attorneys are of a doubtful and flimsy nature;
and that the PDA is unconstitutional because it violates Section 3, Article IV, of the Constitution prohibiting unreasonable
searches and seizures.
On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve the issues raised as the
case affects not only the detained attorneys but the entire legal profession and the administration of justice as well.
Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated Reply, reiterating first, the
validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A and of the PDA issued against petitioners as an
incident to the suspension of the privilege of the Writ of habeas corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et
al.; 2 and thirdly, its prayer for the dismissal of the petition on the ground of mootness by virtue of the filing of an Information for
Rebellion against the detained attorneys before the Regional Trial Court of Davao City .
As contended by respondents, the petition herein has been rendered moot and academic by virtue of the filing of an Information
against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest
against them. 3 The function of the special proceeding of habeas corpus is to inquire into the legality of one's detention. Now that
the detained attorneys' incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against them
before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The Writ had served its purpose.4
SEC. 4. When writ not allowed or discharge authorized.-If it appears 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 to discharge of a person charged
with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment. (Rule 102)
If the detained attorneys question their detention because of improper arrest, or that no preliminary investigati•n has been
conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of
Arrest, and /or the Information on grounds provided by the Rules or to ask for an investigation / reinvestigation of the
case. 5 Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the Information filed
against the accused. 6 So is it explicitly provided for by Section. 14, Rule of 102 of the Rules of Court, reading:
SEC. 14. When person lawfully imprisoned recommitted and when let to bail.- If it appears that the prisoner
was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an
offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or
restrained on a charge of having committed an offense not so punishable, he may be recommitted to
imprisonment or admitted to bail in the discretion of the court or judge. . . .
But petitioners submit that because of the absence of a preliminary investigation, the Information for Rebellion filed against the
detained attorneys is void and the Court below could not have acquired jurisdiction over them, and consequently, they are
entitled to release.
On the other hand, respondents contend that a preliminary investigation was unnecessary since the detained attorneys were
lawfully arrested without a warrant.
Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the Regional Trial Court shall be
filed without a preliminary investigation having been first conducted, except as provided for in Section 7 of Rule 112. 7 The
Information filed by the City Fiscal before the Regional Trial Court of the City of Davao fell within the exception. Thus, the
Verification reads:
VERIFICATION
I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985
Rules on criminal Procedure, wherein after examining the affidavits of the government witnesses and
other documents attached to the records, I found sufficient ground to hold respondents for trial.
(SGD.) EMMANUEL E. GALICIA
City Fiscal
Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to 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 preliminary investigation having been first conducted on
the basis of the affidavit of the offended party or arrested 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.
Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is lawful.
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 [al 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. (Rule 113)
Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while paragraph (c)
refers to escaping prisoners. As to whether the detained attorneys fall under either of the first two instances enumerated is a
question of fact, which will need the presentation of evidence and is more properly within the province of the trial Court.
The question of absence of a proper preliminary investigation is also better inquired into by the Court below. When so raised, this
Court, speaking through Mr. Justice Claudio Teehankee, has held that the trial Court is called upon "not to dismiss the information
but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. 8 As stressed
in People vs. Casiano, 1 SCRA 478 [1961], this is the proper procedure since the "absence of such investigation did not impair the
validity of the Information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First
Instance". 9 The right to a preliminary investigation, being waivable, does not argue against the validity of the proceedings, the
most that could have been done being to remand the case in order that such investigation could be conducted. 10
... The proper forum before which absence of preliminary investigation should be ventilated is the Court of
First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation
does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be
waived. Indeed, it is frequently waived. These are matters to be inquired into by the trial court, not an
appellate Court. 11
The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the release of two of the accused, is not on all fours
with the case at bar as, in that case, the accused were charged only with Illegal Possession of Subversive documents under
Presidential Decree No. 33, which is punishable by prision correccional in its minimum period, and the trial Court had granted
bail; whereas in this case, petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail.
WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and academic. Petitioners are now
detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for
Rebellion filed against them before said Court.
SO ORDERED.
-Enrile vs. Sandiganbayan GR 213847 (August 18, 2015)
G.R. No. 213847 August 18, 2015
JUAN PONCE ENRILE, Petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
BERSAMIN, J.:
The decision whether to detain or release an accused before and during trial is ultimately an incident of the judicial power to hear
and determine his criminal case. The strength of the Prosecution's case, albeit a good measure of the accused’s propensity for
flight or for causing harm to the public, is subsidiary to the primary objective of bail, which is to ensure that the accused appears
at trial.1
The Case
Before the Court is the petition for certiorari filed by Senator Juan Ponce Enrile to assail and annul the resolutions dated July 14,
20142 and August 8, 20143 issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238, where he has been
charged with plunder along with several others. Enrile insists that the resolutions, which respectively denied his Motion To Fix
Bail and his Motion For Reconsideration, were issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
Antecedents
On June 5, 2014, the Office of the Ombudsman charged Enrile and several others with plunder in the Sandiganbayan on the basis
of their purported involvement in the diversion and misuse of appropriations under the Priority Development Assistance Fund
(PDAF).4 On June 10, 2014 and June 16, 2014, Enrile respectively filed his Omnibus Motion 5 and Supplemental
Opposition,6 praying, among others, that he be allowed to post bail should probable cause be found against him. The motions
were heard by the Sandiganbayan after the Prosecution filed its Consolidated Opposition. 7
On July 3, 2014, the Sandiganbaya n issued its resolution denying Enrile’s motion, particularly on the matter of bail, on the ground
of its prematurity considering that Enrile had not yet then voluntarily surrendered or been placed under the custody of the
law.8 Accordingly, the Sandiganbayan ordered the arrest of Enrile.9
On the same day that the warrant for his arrest was issued, Enrile voluntarily surrendered to Director Benjamin Magalong of the
Criminal Investigation and Detection Group (CIDG) in Camp Crame, Quezon City, and was later on confined at the Philippine
National Police (PNP) General Hospital following his medical examination.10
Thereafter, Enrile filed his Motion for Detention at the PNP General Hospital ,11 and his Motion to Fix Bail ,12 both dated July 7,
2014, which were heard by the Sandiganbayan on July 8, 2014.13 In support of the motions, Enrile argued that he should be
allowed to post bail because: (a) the Prosecution had not yet established that the evidence of his guilt was strong; (b) although he
was charged with plunder, the penalty as to him would only be reclusion temporal , not reclusion perpetua ; and (c) he was not a
flight risk, and his age and physical condition must further be seriously considered.
On July 14, 2014, the Sandiganbayan issued its first assailed resolution denying Enrile’s Motion to Fix Bail, disposing thusly:
x x x [I]t is only after the prosecution shall have presented its evidence and the Court shall have made a determination that the
evidence of guilt is not strong against accused Enrile can he demand bail as a matter of right. Then and only then will the Court be
duty-bound to fix the amount of his bail.
To be sure, no such determination has been made by the Court. In fact, accused Enrile has not filed an application for bail.
Necessarily, no bail hearing can even commence. It is thus exceedingly premature for accused Enrile to ask the Court to fix his
bail.
Accused Enrile next argues that the Court should grant him bail because while he is charged with plunder, "the maximum penalty
that may be possibly imposed on him is reclusion temporal, not reclusion perpetua." He anchors this claim on Section 2 of R.A. No.
7080, as amended, and on the allegation that he is over seventy (70) years old and that he voluntarily surrendered. "Accordingly,
it may be said that the crime charged against Enrile is not punishable by reclusion perpetua, and thus bailable."
The argument has no merit.
x x x [F]or purposes of bail, the presence of mitigating circumstance/s is not taken into consideration. These circumstances will
only be appreciated in the imposition of the proper penalty after trial should the accused be found guilty of the offense charged. x
xx
Lastly, accused Enrile asserts that the Court should already fix his bail because he is not a flight risk and his physical condition
must also be seriously considered by the Court.
Admittedly, the accused’s age, physical condition and his being a flight risk are among the factors that are considered in fixing a
reasonable amount of bail. However, as explained above, it is premature for the Court to fix the amount of bail without an
anterior showing that the evidence of guilt against accused Enrile is not strong.
WHEREFORE, premises considered, accused Juan Ponce Enrile’s Motion to Fix Bail dated July 7, 2014 is DENIED for lack of merit.
SO ORDERED.14
On August 8, 2014, the Sandiganbayan issued it s second assailed resolution to deny Enrile’s motion for reconsideration filed vis-
à-vis the July 14, 2014 resolution.15
Enrile raises the following grounds in support of his petition for certiorari , namely:
A. Before judgment of the Sandiganbayan, Enrile is bailable as a matter of right. Enrile may be deemed to fall
within the exception only upon concurrence of two (2) circumstances: (i) where the offense is punishable by
reclusion perpetua, and (ii) when evidence of guilt is strong.
B. The prosecution failed to show clearly and conclusively that Enrile, if ever he would be convicted, is
punishable by reclusion perpetua; hence, Enrile is entitled to bail as a matter of right.
C. The prosecution failed to show clearly and conclusively that evidence of Enrile’s guilt (if ever) is strong;
hence, Enrile is entitled to bail as a matter of right.
D. At any rate, Enrile may be bailable as he is not a flight risk.16
Enrile claims that before judgment of conviction, an accused is entitled to bail as matter of right; th at it is the duty and burden of
the Prosecution to show clearly and conclusively that Enrile comes under the exception and cannot be excluded from enjoying the
right to bail; that the Prosecution has failed to establish that Enrile, if convicted of plunder, is punishable by reclusion perpetua
considering the presence of two mitigating circumstances – his age and his voluntary surrender; that the Prosecution has not
come forward with proof showing that his guilt for the crime of plunder is strong; and that he should not be considered a flight
risk taking into account that he is already over the age of 90, his medical condition, and his social standing.
In its Comment ,17 the Ombudsman contends that Enrile’s right to bail is discretionary as he is charged with a capital offense; that
to be granted bail, it is mandatory that a bail hearing be conducted to determine whether there is strong evidence of his guilt, or
the lack of it; and that entitlement to bail considers the imposable penalty, regardless of the attendant circumstances.
Ruling of the Court
The petition for certiorari is meritorious.
1.
Bail protects the right of the accused to
due process and to be presumed innocent
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.18 The presumption of innocence
is rooted in the guarantee of due process, and is safeguarded by the constitutional right to be released on bail, 19 and further binds
the court to wait until after trial to impose any punishment on the accused.20
It is worthy to note that bail is not granted to prevent the accused from committing additional crimes.[[21] The purpose of bail is
to guarantee the appearance of the accused at the trial, or whenever so required by the trial court. The amount of bail should be
high enough to assure the presence of the accused when so required, but it should be no higher than is reasonably calculated to
fulfill this purpose.22 Thus, bail acts as a reconciling mechanism to accommodate both the accused’s interest in his provisional
liberty before or during the trial, and the society’s interest in assuring the accused’s presence at trial. 23
2.
Bail may be granted as a
matter of right or of discretion
The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the Constitution, viz.:
x x x All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
This constitutional provision is repeated in Section 7, Rule 11424 of the Rules of Court , as follows:
Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. — No person charged
with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution.
A capital offense in the context of the rule refers to an offense that, under the law existing at the time of its commission and the
application for admission to bail, may be punished with death.25
The general rule is, therefore, that any person, before being convicted of any criminal offense, shall be bailable, unless he is
charged with a capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the evidence of
his guilt is strong. Hence, from the moment he is placed under arrest, or is detained or restrained by the officers of the law, he can
claim the guarantee of his provisional liberty under the Bill of Rights, and he retains his right to bail unless he is charged with a
capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt is
strong.26 Once it has been established that the evidence of guilt is strong, no right to bail shall be recognized.27
As a result, all criminal cases within the competence of the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court
in Cities, or Municipal Circuit Trial Court are bailable as matter of right because these courts have no jurisdiction to try capital
offenses, or offenses punishable with reclusion perpetua or life imprisonment. Likewise, bail is a matter of right prior to
conviction by the Regional Trial Court (RTC) for any offense not punishable by death, reclusion perpetua , or life imprisonment,
or even prior to conviction for an offense punishable by death, reclusion perpetua , or life imprisonment when evidence of guilt is
not strong.28
On the other hand, the granting of bail is discretionary: (1) upon conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment;29 or (2) if the RTC has imposed a penalty of imprisonment exceeding six years, provided
none of the circumstances enumerated under paragraph 3 of Section 5, Rule 114 is present, as follows:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail
without valid justification;
(c) That he committed the offense while under probation, parole, or conditional pardon;
(d) That the circumstances of hi s case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal.
3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion
For purposes of admission to bail, the determination of whether or not evidence of guilt is strong in criminal cases involving
capital offenses, or offenses punishable with reclusion perpetua or life imprisonment lies within the discretion of the trial court.
But, as the Court has held in Concerned Citizens v. Elma ,30 "such discretion may be exercised only after the hearing called to
ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted provisional liberty." It is
axiomatic, therefore, that bail cannot be allowed when its grant is a matter of discretion on the part of the trial court unless there
has been a hearing with notice to the Prosecution.31 The indispensability of the hearing with notice has been aptly explained in
Aguirre v. Belmonte, viz. :32
x x x Even before its pronouncement in the Lim case, this Court already ruled in People vs. Dacudao, etc., et al. that a hearing is
mandatory before bail can be granted to an accused who is charged with a capital offense, in this wise:
The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion asking for it, without
bothering to ask the prosecution for its conformity or comment, as it turned out later, over its strong objections. The court
granted bail on the sole basis of the complaint and the affidavits of three policemen, not one of whom apparently witnessed the
killing. Whatever the court possessed at the time it issued the questioned ruling was intended only for prima facie determining
whether or not there is sufficient ground to engender a well-founded belief that the crime was committed and pinpointing the
persons who probably committed it. Whether or not the evidence of guilt is strong for each individual accused still has to be
established unless the prosecution submits the issue on whatever it has already presented. To appreciate the strength or
weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process.
Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution
to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the
evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice,
and whether or not the accused is under bond in other cases. (Section 6, Rule 114, Rules of Court) It is highly doubtful if the trial
court can appreciate these guidelines in an ex-parte determination where the Fiscal is neither present nor heard.
The hearing, which may be either summary or otherwise, in the discretion of the court, should primarily determine whether or
not the evidence of guilt against the accused is strong. For this purpose, a summary hearing means:
x x x such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the
purpose of hearing which is merely to determine the weight of evidence for purposes of bail. On such hearing, the court does not
sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the
accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered or admitted. The
course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to
substantial matters, avoiding unnecessary thoroughness in the examination and cross examination.33
In resolving bail applications of the accused who is charged with a capital offense, or an offense punishable by reclusion perpetua
or life imprisonment, the trial judge is expected to comply with the guidelines outlined in Cortes v. Catral, 34 to wit:
1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application
for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court, as amended);
This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person has
authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and convincing
showing: (1 ) that the detainee will not be a flight risk or a danger to the community; and (2 ) that there exist special,
humanitarian and compelling circumstances.39
In our view, his social and political standing and his having immediately surrendered to the authorities upon his being charged in
court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely. His personal disposition from the onset
of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this country. We
also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and multiple
frustrated murder, he already evinced a similar personal disposition of respect for the legal processes, and was granted bail
during the pendency of his trial because he was not seen as a flight risk.40 With his solid reputation in both his public and his
private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.

2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the
court to exercise its sound discretion; (Section 7 and 8, supra)
3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution;
The currently fragile state of Enrile’s health presents another compelling justification for his admission to bail, but which the
Sandiganbayan did not recognize.
In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the Director of the Philippine General Hospital (PGH), classified
Enrile as a geriatric patient who was found during the medical examinations conducted at the UP-PGH to be suffering from the
following conditions:

4. If the guilt of the accused is no t strong, discharge the accused upon the approval of the bailbond (Section 19, supra) (1) Chronic Hypertension with fluctuating blood pressure levels on multiple drug therapy; (Annexes 1.1, 1.2, 1.3);
Otherwise petition should be denied.

(2) Diffuse atherosclerotic cardiovascular disease composed of the following :

3.
Enrile’s poor health justifies his admission to bail
a. Previous history of cerebrovascular disease with carotid and vertebral artery disease ; (Annexes 1.4, 4.1)
We first note that Enrile has averred in his Motion to Fix Bail the presence of two mitigating circumstances that should be
appreciated in his favor, namely: that he was already over 70 years at the time of the alleged commission of the offense, and that b. Heavy coronary artery calcifications; (Annex 1.5)
he voluntarily surrendered.35
c. Ankle Brachial Index suggestive of arterial calcifications. (Annex 1.6)
Enrile’s averment has been mainly uncontested by the Prosecution, whose Opposition to the Motion to Fix Bail has only argued
that –
(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by Holter monitoring ; (Annexes 1.7.1, 1.7.2)

8. As regards the assertion that the maximum possible penalty that might be imposed upon Enrile is only reclusion temporal due
to the presence of two mitigating circumstances, suffice it to state that the presence or absence of mitigating circumstances is also (4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip syndrome; (Annexes 2.1, 2.2)
not consideration that the Constitution deemed worthy. The relevant clause in Section 13 is "charged with an offense punishable
by." It is, therefore, the maximum penalty provided by the offense that has bearing and not the possibility of mitigating (5) Ophthalmology:
circumstances being appreciated in the accused’s favor.36

Yet, we do not determine now the question of whether or not Enrile’s averment on the presence of the two mitigating
circumstances could entitle him to bail despite the crime alleged against him being punishable with reclusion perpetua , 37 simply
because the determination, being primarily factual in context, is ideally to be made by the trial court.
a. Age-related mascular degeneration, neovascular s/p laser of the Retina, s/p Lucentis intra-ocular
injections; (Annexes 3.0, 3.1, 3.2)
b. S/p Cataract surgery with posterior chamber intraocular lens. (Annexes 3.1, 3.2)

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of
bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court. The Court is further (6) Historical diagnoses of the following:
mindful of the Philippines’ responsibility in the international community arising from the national commitment under the
Universal Declaration of Human Rights to: a. High blood sugar/diabetes on medications;

x x x uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is enshrined b. High cholesterol levels/dyslipidemia;
in Section II, Article II of our Constitution which provides: "The State values the dignity of every human person and guarantees
full respect for human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court, to c. Alpha thalassemia;
enable it to decide without delay on the legality of the detention and order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every person under detention such remedies which safeguard their
d. Gait/balance disorder;
fundamental right to liberty. These remedies include the right to be admitted to bail.38
 e. Upper gastrointestinal bleeding (etiology uncertain) in 2014; JUSTICE MARTIRES:

f. Benign prostatic hypertrophy (with documented enlarged prostate on recent ultrasound).42 That you will not be able to address in an emergency situation?

Dr. Gonzales attested that the following medical conditions, singly or collectively, could pose significant risk s to the life of Enrile,
to wit: (1) uncontrolled hypertension, because it could lead to brain or heart complications, including recurrence of stroke; (2)
arrhythmia, because it could lead to fatal or non-fatal cardiovascular events, especially under stressful conditions; (3) coronary
calcifications associated with coronary artery disease, because they could indicate a future risk for heart attack under stressful
conditions; and (4) exacerbations of ACOS, because they could be triggered by certain circumstances (like excessive heat,
humidity, dust or allergen exposure) which could cause a deterioration in patients with asthma or COPD.43
Based on foregoing, there is no question at all that Enrile’s advanced age and ill health required special medical attention. His
confinement at the PNP General Hospital, albeit at his own instance,44 was not even recommended by the officer-in-charge (O IC)
and the internist doctor of that medical facility because of the limitations in the medical support at that hospital. Their
testimonies ran as follows:
JUSTICE MARTIRES:
DR. SERVILLANO:
Your Honor, in case of emergency situation we can handle it but probably if the condition of the patient worsen, we have no
facilities to do those things, Your Honor.45
Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of
the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the
trial.
Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has already held in Dela Rama v. The People’s
Court:46

The question is, do you feel comfortable with the continued confinement of Senator Enrile at the Philippine National Police x x x This court, in disposing of the first petition for certiorari, held the following:
Hospital?
x x x [ U]nless allowance of bail is forbidden by law in the particular case, the illness of the prisoner,
DR. SERVILLANO:
independently of the merits of the case, is a circumstance, and the humanity of the law makes it a consideration which should,
No, Your Honor. regardless of the charge and the stage of the proceeding, influence the court to exercise its discretion to admit the prisoner to bail
;47

JUSTICE MARTIRES:
xxx

Director, doctor, do you feel comfortable with the continued confinement of Senator Enrile at the PNP Hospital ?
Considering the report of the Medical Director of the Quezon Institute to the effect that the petitioner "is actually suffering from
minimal, early, unstable type of pulmonary tuberculosis, and chronic, granular pharyngitis," and that in said institute they "have
PSUPT. JOCSON: seen similar cases, later progressing into advance stages when the treatment and medicine are no longer of any avail;" taking into
consideration that the petitioner’s previous petition for bail was denied by the People’s Court on the ground that the petitioner
was suffering from quiescent and not active tuberculosis, and the implied purpose of the People’s Court in sending the petitioner
No, Your Honor. to the Quezon Institute for clinical examination and diagnosis of the actual condition of his lungs, was evidently to verify whether
the petitioner is suffering from active tuberculosis, in order to act accordingly in deciding his petition for bail; and considering
JUSTICE MARTIRES: further that the said People’s Court has adopted and applied the well-established doctrine cited in our above-quoted resolution,
in several cases, among them, the cases against Pio Duran (case No. 3324) and Benigno Aquino (case No. 3527), in which the said
defendants were released on bail on the ground that they were ill and their continued confinement in New Bilibid Prison would
Why? be injurious to their health or endanger their life; it is evident and we consequently hold that the People’s Court acted with grave
abuse of discretion in refusing to re lease the petitioner on bail.48
PSUPT. JOCSON:
It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical condition be properly
Because during emergency cases, Your Honor, we cannot give him the best. addressed and better attended to by competent physicians in the hospitals of his choice. This will not only aid in his adequate
preparation of his defense but, more importantly , will guarantee his appearance in court for the trial.

JUSTICE MARTIRES:
On the other hand, to mark time in order to wait for the trial to finish before a meaningful consideration of the application for bail
can be had is to defeat the objective of bail, which is to entitle the accused to provisional liberty pending the trial. There may be
At present, since you are the attending physician of the accused, Senator Enrile, are you happy or have any fear in your heart of circumstances decisive of the issue of bail – whose existence is either admitted by the Prosecution, or is properly the subject of
the present condition of the accused vis a vis the facilities of the hospital? judicial notice – that the courts can already consider in resolving the application for bail without awaiting the trial to finish. 49 The
Court thus balances the scales of justice by protecting the interest of the People through ensuring his personal appearance at the
trial, and at the same time realizing for him the guarantees of due process as well as to be presumed innocent until proven guilty.
DR. SERVILLANO:

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail to ensure the appearance of the accused
Yes, Your Honor. I have a fear.
during the trial; and unwarrantedly disregarded the clear showing of the fragile health and advanced age of Enrile. As such, the
Sandiganbayan gravely abused its discretion in denying Enrile’s Motion To Fix Bail. Grave abuse of discretion, as the ground for
the issuance of the writ of certiorari , connotes whimsical and capricious exercise of judgment as is equivalent to excess, or lack of
jurisdiction.50 The abuse must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.51 WHEREFORE, the Court GRANTS the petition for certiorari ; ISSUES the writ
of certiorari ANNULING and SETTING ASIDE the Resolutions issued by the Sandiganbayan (Third Division) in Case No. SB-14
CRM-0238 on July 14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce Enrile in Case No.
SB-14-CRM-0238 upon posting of a cash bond of ₱1,000,000.00 in the Sandiganbayan; and DIRECTS the immediate release of
petitioner Juan Ponce Enrile from custody unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.
-In the Matter of Urgent Petition for the Release of Prisoners on Humanitarian Grounds in the Midst of the Covid-19 Pandemic,
Dionisio S. Almonte, et al. Vs. People of the Philippines, et al.G.R. No. 252117. July 28, 2020
IN THE MATTER OF THE URGENT PETITION FOR THE RELEASE OF PRISONERS ON HUMANITARIAN GROUNDS IN THE
MIDST OF THE COVID-19 PANDEMIC,
DIONISIO S. ALMONTE, REPRESENTED BY HIS WIFE GLORIA P. ALMONTE, IRENEO O. ATADERO, JR., REPRESENTED BY HIS
DAUGHTER APRILLE JOY A. ATADERO, ALEXANDER RAMONITA K. BIRONDO, REPRESENTED BY HIS SISTER JEANETTE B.
GODDARD, WINONA MARIE O. BIRONDO, REPRESENTED BY HER SISTER-IN-LAW JEANETTE B. GODDARD, REY CLARO
CASAMBRE, REPRESENTED BY HIS DAUGHTER XANDRA LIZA C. BISENIO, FERDINAND T. CASTILLO, REPRESENTED BY HIS
WIFE NONA ANDAYA-CASTILLO, FRANCISCO FERNANDEZ, JR., REPRESENTED BY HIS SON FRANCIS IB LAGTAPON,
RENANTE GAMARA, REPRESENTED BY HIS SON KRISANTO MIGUEL B. GAMARA, VICENTE P. LADLAD, REPRESENTED BY
HIS WIFE FIDES M. LIM, EDIESEL R. LEGASPI, REPRESENTED BY HIS WIFE EVELYN C. LEGASPI, CLEOFE LAGTAPON,
REPRESENTED BY HER SON FRANCIS IB LAGTAPON, GEANN PEREZ REPRESENTED BY HER MOTHER ERLINDA C. PEREZ,
ADELBERTO A. SILVA, REPRESENTED BY HIS SON FREDERICK CARLOS J. SILVA, ALBERTO L. VILLAMOR, REPRESENTED
BY HIS SON ALBERTO B. VILLAMOR, JR., VIRGINIA B. VILLAMOR, REPRESENTED BY HER DAUGHTER JOCELYN V. PASCUAL,
OSCAR BELLEZA, REPRESENTED BY HIS BROTHER LEONARDO P. BELLEZA, NORBERTO A. MURILLO, REPRESENTED BY
HIS DAUGHTER NALLY MURILLO, REINA MAE NASINO, REPRESENTED BY HER AUNT VERONICA VIDAL, DARIO TOMADA,
REPRESENTED BY HIS WIFE AMELITA Y. TOMADA, EMMANUEL BACARRA, REPRESENTED BY HIS WIFE ROSALIA
BACARRA, OLIVER B. ROSALES, REPRESENTED BY HIS DAUGHTER KALAYAAN ROSALES, LILIA BUCATCAT, REPRESENTED
BY HER GRANDCHILD LELIAN A. PECORO, PETITIONERS, V. PEOPLE OF THE PHILIPPINES, EDUARDO AÑO, IN HIS
CAPACITY AS SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, MENARDO GUEVARRA, IN HIS CAPACITY AS
SECRETARY OF JUSTICE, J/DIRECTOR ALLAN SULLANO IRAL IN HIS CAPACITY AS THE CHIEF OF THE BUREAU OF JAIL
MANAGEMENT AND PENOLOGY, USEC. GERALD Q. BANTAG, IN HIS CAPACITY AS THE DIRECTOR GENERAL OF THE
BUREAU OF CORRECTIONS, J/CINSP. MICHELLE NG - BONTO IN HER CAPACITY AS THE WARDEN OF THE METRO MANILA
DISTRICT JAIL 4, J/CINSP. ELLEN B. BARRIOS, IN HER CAPACITY AS THE WARDEN OF THE TAGUIG CITY JAIL FEMALE
DORM, J/SUPT. RANDEL H. LATOZA IN HIS CAPACITY AS THE WARDEN OF THE MANILA CITY JAIL, J/SUPT. CATHERINE L.
ABUEVA, IN HER CAPACITY AS THE WARDEN OF THE MANILA CITY JAIL-FEMALE DORM, J/CSUPT. JHAERON L. LACABEN,
IN HIS CAPACITY AS THE CORRECTION SUPERINTENDENT NEW BILIBID PRISON- WEST, CTSUPT. VIRGINIA S.
MANGAWIT, IN HER CAPACITY AS THE ACTING SUPERINTENDENT OF THE CORRECTIONAL INSTITUTION FOR WOMEN,
RESPONDENTS.
DECISION
Antecedents
On April 6, 2020, Dionisio S. Almonte, Ireneo O. Atadero, Jr., Alexander Ramonita K. Birondo, Winona Marie O. Birondo, Rey
Claro Casambre, Ferdinand T. Castillo, Francisco Fernandez, Jr., Renante Gamara, Vicente P. Ladlad, Ediesel R. Legaspi, Cleofe
Lagtapon, Ge-Ann Perez, Adelberto A. Silva, Alberto L. Villamor, Virginia B. Villamor, Oscar Belleza, Norberto A. Murillo, Reina Mae
A. Nasino, Dario Tomada, Emmanuel Bacarra, Oliver B. Rosales, and Lilia Bucatcat (petitioners) filed a petition before this Court
entitled "In the Matter of the Urgent Petition for the Release of Prisoners on Humanitarian Grounds in the Midst of the COVID1-
19 Pandemic." Here, petitioners allege that they are prisoners and are among the elderly, sick, and pregnant population of inmates
exposed to the danger of contracting COVID-19 where social distancing and self-isolation measures are purportedly
impossible.2 As such, they are invoking this Court's power to exercise "equity jurisdiction" and are seeking "temporary liberty on
humanitarian grounds" either on recognizance or on bail.3 Moreover, they are also asking the Court to order the creation of a
"Prisoner Release Committee" similar to those set up in other countries to conduct a study and implement the release of prisoners
in congested penal facilities. In seeking their provisional release on recognizance or bail, petitioners essentially argue that: (a) their
continued confinement which poses a high risk of contracting COVID-19 is tantamount to cruel and unusual punishment proscribed
under the Constitution;4 (b) the United Nations (UN) standards, particularly the UN Standard Minimum Rules for the Treatment of
Prisoners (Nelson Mandela Rules), imposes a duty on the part of the State to protect the health and safety of prisoners consistent
with the guarantees of the right to life;5 (c) the government's response to the pandemic is not enough to protect the safety of the
inmates;6 (d) the government should take a cue from other countries which undertook measures to decongest their jails by
releasing eligible prisoners;7 (e) the Court may brush aside procedural rules and grant temporary liberty based on humanitarian
reasons and equity jurisdiction;8 and (f) it is not feasible for them to file petitions for certiorari with the trial courts due to the
Luzon-wide enhanced community quarantine (ECQ).1âшphi19
For respondents' part who are represented by the Office of the Solicitor General, they filed their comment opposing
petitioners' plea for their temporary release and for the creation of a Prisoner Release Committee and argued that: (a) petitioners
are valuable members of the Communist Party of the Philippines — New People's Army — National Democratic Front (CPP-NPA-
NDF) who have committed heinous crimes and are merely taking advantage of the current public health as well as the "fickle arena
of public opinion" situation in seeking for their temporary release based on humanitarian reasons;10 (b) the government has
adequate medical facilities, personnel and measures to address the threat of COVID-19 in jails and other detention facilities;11 (c)
petitioners have ample remedies under this Court's several circulars which addressed the needs to decongest the jails in response
to the COVID-19 pandemic;12 (d) petitioners violated the doctrine of hierarchy of courts;13 (e) the grant or denial of bail, the
evaluation of petitioners' respective medical conditions, and the determination of whether or not the evidence of guilt is strong are
questions of fact which should be determined by the trial courts;14 (f) petitioners cannot be temporarily released on recognizance
because they were charged with capital offenses;15 (g) petitioners cannot be granted provisional liberty based on equity because
governing laws exist;16 (h) the doctrine espoused in Enrile v. Sandiganbayan17 is inapplicable because petitioners present a
threat to public safety due to their supposed membership in the CPP-NPA-NDF;18 (i) releasing petitioners violates the equal
protection clause as there is no substantial difference between them and the rest of the detainees as everyone is equally vulnerable
to COVID-19;19 and (j) the Philippines is not bound to adopt the manner of decongesting jails undertaken by other countries as
they operate under their own set of laws.20
Issues
-I-
Whether or not the instant petition filed directly before this Court may be given due
course...
-II-
Whether or not the Nelson Mandela Rules are enforceable in Philippine courts...
-III-
Whether or not petitioners may be given provisional liberty on the ground of
equity...
-IV-
Whether or not the Court has the power to pass upon the State's prerogative of
selecting appropriate police power measures in times of emergency...
Ruling
The Supreme Court is a collegiate judicial body whose rulings and binding opinions are the results of its members' collective
and majoritarian consensus. The doctrines it establishes do not depend on the judgment or will of a sole magistrate as such is the
spirit of collegiality. Thus, after initial deliberations and exchanges of ideas, it was collectively realized that the instant case presents
several complex issues making the interaction of applicable principles ridden with far-reaching implications. Nonetheless, the
members of this Court have unanimously arrived at the conclusion to treat the petition as petitioners' application for bail or
recognizance, as well as their motions for other practicable and suitable confinement arrangements relative to the alleged serious
threats to their health and lives.1a⍵⍵h!1
At the outset, it is a settled rule that the Supreme Court is not a trier of facts.21 Relatedly, a direct invocation of this Court's
original jurisdiction is generally proscribed to prevent inordinate demands upon its time and attention which are better devoted
to those matters within its exclusive jurisdiction as well as to prevent further over-crowding of its docket.22
 Concomitantly, the Constitution guarantees the right to bail of all the accused except those charged with offenses punishable
by reclusion perpetua when the evidence of guilt is strong.23 However, in cases where the offense is punishable by reclusion
perpetua and where the evidence of guilt is strong, bail is a matter of discretion.24 Here, trial courts are granted the discretion to
determine in bail applications whether there is strong evidence of guilt on the part of the accused.25 A summary hearing is
conducted merely for the purpose of determining the weight of evidence.26 Only after weighing the pieces of evidence as contained
in the summary will the judge formulate his own conclusion as to whether the evidence of guilt against the accused is strong based
on his discretion.27 Therefore, the entitlement to bail is a question of fact.

In this case, petitioners have been charged with offenses punishable by reclusion perpetua. As such, they are not entitled to
bail as a matter of right. Consequently, there is a need to conduct summary hearings for the purpose of weighing the strength of
the prosecution's evidence as to petitioners' guilt. This process entails a reception and an evaluation of evidence which the trial
courts are competent to handle. The foregoing holds true with respect to the motions for other confinement arrangements which
also necessitate reception and evaluation of evidence by a trial court. Hence, being a court of last resort, this Court ingeminates and
reminds the Bench and the Bar that it is not the proper avenue or forum to ventilate factual questions especially if they are
presented for adjudication on the first instance.

Like the case of Versoza v. People, et al.28 and Cruz, et al. v. Secretary of Environment and Natural Resources, et al.29 the
Court deems it fitting to have the other remaining issues threshed out in the separate opinions of its members that are attached to
and made integral parts of this Decision.

WHEREFORE, in view of the foregoing reasons, the Court TREATS the present petition as petitioners'
applications for bail or recognizance as well as their motions for other confinement arrangements,
and REFERS the same to the respective trial courts where their criminal cases are pending, which courts
are hereby DIRECTED to conduct the necessary proceedings and consequently, resolve these incidents
with utmost dispatch. Accordingly, the proceedings before this Court are
considered CLOSED and TERMINATED.

No pronouncement as to costs.

SO ORDERED.
-Stonehill v. Diokno, 20 SCRA 383
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,
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 and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the 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.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin 1 — hereinafter referred to as Respondents-Prosecutors
— several judges2 — hereinafter referred to as Respondents-Judges — issued, on different dates,3 a total of 42 search warrants
against petitioners herein4 and/or the corporations of which they were officers,5 directed to the 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 Respondents-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 two (2)
major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) those found and
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, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining herein
Respondents-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.1äwphï1.ñët
Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly, the
seizures effected upon the authority there of 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 person therein named had committed a "violation of Central Ban 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 the 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
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 but 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), Respondents-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 on 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 hold that all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority, inadmissible in a State.
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 underserving 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 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 necessarily 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 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 enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "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 its 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 enforcement itself, chooses to
suspend its enjoyment. 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 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, 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
Rooms 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 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 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 said 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.
-Burgos v. Chief of Staff, 133 SCRA 800
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL
OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for
petitioners.
The Solicitor General for respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the
validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the
then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and
784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum"
newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other
articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books
and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We
Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized
articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General,
AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be
enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case
No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory
and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in
behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory
injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until
final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having
previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity
of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this
procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional
issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in
Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to
exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de
Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case
from its operation, whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said
search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or
after the lapse of a period of more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence,
could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the
Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited this long to bring their
case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill
years had taught them that everything in this country, from release of public funds to release of detained
persons from custody, has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal
Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of
the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego,
Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to
hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise
them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the
presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches
against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized
documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not
follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases
with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or
invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant
and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court
.6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the
hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his
witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City
and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search
Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where
petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon
City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means of committing the crime of
subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3,
Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the
purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have
issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were
specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search
warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that
the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon
City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent
judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been
held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be
especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the
judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer
may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose
Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc.
were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure of the
following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the offense; and
[c] Property used or intended to be used as the means of committing an offense.
The above rule does not require that the property to be seized should be owned by the person against whom the search warrant
is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties
that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the
person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose
Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article
415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the
tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the
needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo9 where this legal
provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the
owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed.
This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to
seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence
Officer of the P.C. Metrocom.10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U.
Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the
premises prior to the filing of the application for the search warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the
finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973
Constitution which provides:
SEC. 3. ... 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.
We find petitioners' thesis impressed with merit. Probable cause for a search is 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 the objects sought in
connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application
and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has
published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application
that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other
documents which were used and are all continuously being used as a means of committing the offense of subversion punishable
under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable
cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis
for the issuance of a search warrant and it was a grave error for respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro
M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above-
mentioned and the articles and things above-described were used and are continuously being used for subversive activities in
conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free
Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under
oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal
knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified.
In Alvarez v. Court of First Instance, 15 this Court ruled that "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." As couched, the
quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court
in Alvarez case.
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 and/or connected in
the printing of the "WE FORUM" newspaper and any and all documents communication, letters and
facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and
piurposes of the subversive organization 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 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong
Silang."
2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the
paper's printing facilities and confiscate the equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are
hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the
seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.

SO ORDERED.
In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts,
lists, memoranda, pictures, recordings and other written instruments concerning the Communist 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 connectionwith 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. 17 The description of the articles sought to
be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts 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.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that
the printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the
fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under
Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural
or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with
implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if
sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the
Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied
the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUM
newspaper and its printing presses, according to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a
detailed inventory of the equipment and all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of the
owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign
Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos,
expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
-People vs Sapla G.R. No. 244045. June 16, 2020
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JERRY SAPLA Y GUERRERO A.K.A. ERIC SALIBAD Y MALLARI,
ACCUSED-APPELLANT.
DECISION
CAGUIOA, J:
Can the police conduct a warrantless int1usive search of a vehicle on the sole basis of an unverified tip relayed by an anonymous
informant? On this question, jurisprudence has vacillated over the years. The Court definitively settles the issue once and for all.
In threshing out this issue, it must be remembered that in criminal prosecutions, including prosecutions for violations of the law
on dangerous drugs, our constitutional order does not adopt a stance of neutrality - the law is heavily in favor of the accused. By
constitutional design, the accused is afforded the presumption of innocence1 - it is for the State to prove the guilt of the accused.
Without the State discharging this burden, the Court is given no alternative but to acquit the accused.
Moreover, if the process of gathering evidence against the accused is tainted by a violation of the accused's right against
unreasonable searches and seizures, which is a most cherished and protected right under the Bill of Rights, the evidence
procured must be excluded, inevitably leading to the accused's acquittal.
Therefore, while the Court recognizes the necessity of adopting a decisive stance against the scourge of illegal drugs, the
eradication of illegal drugs in our society cannot be achieved by subverting the people's constitutional right against unreasonable
searches and seizures. In simple terms, the Constitution does not allow the end to justify the means. Otherwise, in eradicating one
societal disease, a deadlier and more sinister one is cultivated - the trampling of the people's fundamental, inalienable rights. The
State's steadfastness in eliminating the drug menace must be equally matched by its determination to uphold and defend the
Constitution. This Court will not sit idly by and allow the Constitution to be added to the mounting body count in the State's war
on illegal drugs.
The Case
Before the Court is an appeal2 filed by the accused-appellant Jerry Sapla y Guerrero a.k.a. Eric Salibad y Mallari (accused-
appellant Sapla), assailing the Decision3 dated April 24, 2018 (assailed Decision) of the Court of Appeals (CA)4 in CA-G.R. CR HC
No. 09296, which affirmed the Judgment5 dated January 9, 2017 of the Regional Trial Court (RTC) of Tabuk City, Branch 25 in
Criminal Case No. 11-2014-C entitled People of the Philippines v. Jerry Sapla y Guerrero a. k.a. Eric Salibad y Mallari, finding
accused-appellant Sapla guilty beyond reasonable doubt of violating Section 5, Article II of Republic Act No. (R.A.)
9165,6 otherwise known as the "Comprehensive Dangerous Drugs Act of 2002," as amended.
The Facts and Antecedent Proceedings
The facts and antecedent proceedings, as narrated by the CA in the assailed Decision, and as culled from the records of the case,
are as follows:
In an Information dated 14 January 2014, the appellant was charged with violation of Section 5, Article II of R.A. No. 9165. The
accusatory portion of the said Information reads:
"That at around 1:20 in the afternoon of January 10, 2014 at Talaca, Agbannawag, Tabuk City, Kalinga and within the jurisdiction
of this Honorable Court, the said accused, did then and there, willfully, unlawfully and knowingly have in his possession, control
and custody four (4) bricks of marijuana leaves, a dangerous [drug], with a total net weight of 3,9563.111 grams and transport in
transit through a passenger [jeepney] with Plate No. AYA 270 the said marijuana without license, permit or authority from any
appropriate government entity or agency.
CONTRARY TO LAW."
The next day, or on 15 January 2014, [accused-appellant Sapla] was committed to the Bureau of Jail Management and Penology
(BJMP) at Tabuk City, Kalinga.
Upon his arraignment on 29 January 2014, [accused-appellant Sapla] pleaded "not guilty" to the crime charged against him. In the
court a quo's Pre-Trial Order dated 11 March 2014, the Prosecution and the Defense stipulated their respective legal issues to be
resolved by the court a quo. Also, the Prosecution identified and marked its pieces of evidence, while the Defense made no
proposals nor pre-mark[ed] any exhibits.
Trial ensued thereafter.
The Prosecution presented three (3) police officers as its witnesses, namely: 1) Police Officer (PO)2 Jim Mabiasan (hereinafter
referred to as PO2 Mabiasan), an officer assigned at the 3rd Maneuver Company, Regional Public Safety Battalion (RPSB) at
Tabuk City and was the seizing officer; 2) PO3 Lito Labbutan (hereinafter referred to as PO3 Labbutan), an intelligence operative
of Kalinga Police Provincial Office - Provincial Anti-Illegal Drugs Special Operations Task Group (KPPO PAIDSOTG) who was
tasked as the arresting officer; and 3) Police Senior Inspector (PSI) Delon Ngoslab (hereinafter referred to as PSI Ngoslab), deputy
company commander of the RPSB and team leader of the joint checkpoint operation.
The evidence for the Prosecution established that on 10 January 2014, at around 11:30 in the morning, an officer on duty at the
RPSB office received a phone call from a concerned citizen, who informed the said office that a certain male individual [would] be
transpiring marijuana from Kalinga and into the Province of Isabela. PO2 Mabiasan then relayed the information to their deputy
commander, PSI Ngoslab, who subsequently called KPPO-PAIDSOTG for a possible joint operation. Thereafter, as a standard
operating procedure in drug operations, PO3 Labbutan, an operative of KPPO-PAIDSOTG, coordinated with the Philippine Drug
Enforcement Agency (PDEA). Afterwards, the chief of KPPO-PAIDSOTG, PSI Baltazar Lingbawan (hereinafter referred to as PSI
Lingbawan), briefed his operatives on the said information. Later on, the said operatives of KPPO-PAIDSOTG arrived at the RPSB.
PSI Ngoslab immediately organized a team and as its team leader, assigned PO2 Mabiasan as the seizing officer, PO3 Labbutan as
the arresting officer, while the rest of the police officers would provide security and backup. The said officers then proceeded to
the Talaca detachment.
At around 1:00 in the afternoon, the RPSB hotline received a text message which stated that the subject male person who [would]
transport marijuana [was] wearing a collared white shirt with green stripes, red ball cap, and [was] carrying a blue sack on board
a passenger jeepney, with plate number AYA 270 bound for Roxas, Isabela. Subsequently, a joint checkpoint was strategically
organized at the Talaca command post.
The passenger jeepney then arrived at around 1:20 in the afternoon, wherein the police officers at the Talaca checkpoint flagged
down the said vehicle and told its driver to park on the side of the road. Officers Labbutan and Mabiasan approached the jeepney
and saw [accused-appellant Sapla] seated at the rear side of the vehicle. The police officers asked [accused-appellant Sapla] if he
[was] the owner of the blue sack in front of him, which the latter answered in the affirmative. The said officers then requested
[accused-appellant Sapla] to open the blue sack. After [accused-appellant Sapla] opened the sack, officers Labbutan and Mabiasan
saw four (4) bricks of suspected dried marijuana leaves, wrapped in newspaper and an old calendar. PO3 Labbutan subsequently
arrested [accused-appellant Sapla], informed him of the cause of his arrest and his constitutional rights in [the] Ilocano dialect.
PO2 Mabiasan further searched [accused-appellant Sapla] and found one (I) LG cellular phone unit. Thereafter, PO2 Mabiasan
seized the four (4) bricks of suspected dried marijuana leaves and brought [them] to their office at the Talaca detachment for
proper markings.
At the RPSB's office, PO2 Mabiasan took photographs and conducted an inventory of the seized items, one (1) blue sack and four
(4) bricks of suspected dried marijuana leaves, wherein the same officer placed his signature on the said items. Also, the actual
conduct of inventory was witnessed by [accused-appellant Sapla], and by the following: 1) Joan K. Balneg from the Department of
Justice; 2) Victor Fontanilla, an elected barangay official; and 3) Geraldine G. Dumalig, as media representative. Thereafter, PO3
Labbutan brought the said [accused-appellant Sapla] at the KPPO-PAIDSOTG Provincial Crime Laboratory Office at Camp Juan M.
Duyan for further investigation.
At the said office, PO2 Mabiasan personally turned over the seized items to the investigator of the case, PO2 Alexander Oman
(hereinafter referred to as PO2 Oman), for custody, safekeeping and proper disposition. Also, PSI Lingbawan wrote a letter
addressed to the Provincial Chief, which requested that a chemistry examination be conducted on the seized items. The following
specimens were submitted for initial laboratory examination: 1) one (1) blue sack with label J&N rice, marked "2:30PM JAN. 10,
2014 EXH. "A" PNP-TALACA and signature;" 2) one (1) brick of suspected dried marijuana leaves, which weighed 998.376 grams,
marked "2:30PM JAN. 10, 2014 EXH. "A-1" PNP-TALACA and signature;" 3) one (1) brick of suspected dried marijuana leaves,
which weighed 929.735 grams, marked "2:30PM JAN. 10, 2014 EXH "A-2" PNP-TALACA and signature;" 4) one (1) brick of
suspected dried marijuana leaves, which weighed 1,045.629 grams, marked "2:30PM JAN. 10, 2014 EXH "A-3" PNP-TALACA and
signature;" 5) one (1) brick of suspected dried marijuana leaves, which weighed 979.371 grams, marked "2:30PM JAN. 10, 2014
EXH. "A-4" PNP-TALACA and signature,"· The said initial examination revealed that the specimens "A-1" to "A-4" with a total net
weight of 3,9563.111 grams, yielded positive results for the presence of marijuana, a dangerous drug. In addition, Chemistry
Report No. D-003-2014 revealed that indeed the said specimens [did] contain marijuana and that the said report indicated that
the "specimen[s] submitted are retained in this laboratory for future reference."
Also, further investigation revealed that [accused-appellant Sapla] tried to conceal his true identity by using a fictitious name
- Eric Mallari Salibad. However, investigators were able to contact [accused-appellant Sapla's] sister, who duly informed the said
investigators that [accused appellant Sapla's] real name is Jerry Guerrero Sapla.
On the other hand, the Defense presented [accused-appellant Sapla] as its sole witness.
The [accused-appellant Sapla] denied the charges against him and instead, offered a different version of the incident. He claimed
that on 8 January 2014, he went to Tabuk City to visit a certain relative named Tony Sibal. Two (2) days later, [accused-appellant
Sapla] boarded a jeepney, and left for Roxas, Isabela to visit his nephew. Upon reaching Talaca checkpoint, police officers f1agged
down the said jeepney in order to check its passenger[s'] baggages and cargoes. The police of1icers then found marijuana inside a
sack and were looking for a person who wore fatigue pants at that time. From the three (3) passengers who wore fatigue pants,
the said police officers identified him as the owner of the marijuana found inside the sack. [Accused-appellant Sapla] denied
ownership of the marijuana, and asserted that he had no baggage at that time. Thereafter, the police officers arrested [accused-
appellant Sapla] and brought him to the Talaca barracks, wherein the sack and marijuana bricks were shown to him.7
The Ruling of the RTC
On January 9, 2017, the RTC rendered its Decision convicting accused-appellant Sapla for violating Section 5 of R.A. 9165. The
RTC found that the prosecution was able to sufficiently establish the corpus delicti of the crime. The dispositive portion of the
Decision reads:
ACCORDINGLY, in view of the foregoing, this Court finds accused JERRY SAPLA Y GUERRERO, a.k.a. ERIC SALIBAD Y
MALLARI guilty beyond reasonable doubt of the crime charged and suffer the penalty of reclusion perpetua.
The accused to pay the fine of Five Million (P5,000,000.00) Pesos.
The 4 bricks of dried marijuana leaves be submitted to any authorized representative of the PDEA for proper disposition.
SO ORDERED.8
Feeling aggrieved, accused-appellant Sapla filed an appeal before the CA.
The Ruling of the CA
In the assailed Decision, the CA denied accused-appellant Sapla's appeal and affirmed the RTC 's Decision with modifications. The
dispositive portion of the assailed Decision reads:
WHEREFORE, the instant appeal is DENIED. The Decision dated 9 January 2017 of the Regional Trial Court of Tabuk City, Branch
25 in Criminal Case No. 11-2014-C is hereby AFFIRMED with MODIFICATIONS in that accused-appellant Jerry Sapla y Guerrero
is sentenced to suffer the penalty of life imprisonment and to pay the fine of P1,000,000.00.
SO ORDERED.9
The CA found that although the search and seizure conducted on accused-appellant Sapla was without a search warrant, the same
was lawful as it was a valid warrantless search of a moving vehicle. The CA held that the essential requisite of probable cause was
present, justifying the warrantless search and seizure.
Hence, the instant appeal.
The Issue
Stripped to its core, the essential issue in the instant case is whether there was a valid search and seizure conducted by the police
officers. The answer to this critical question determines whether there is enough evidence to sustain accused-appellant Sapla's
conviction under Section 5 of R.A. 9165.
The Court's Ruling
The instant appeal is impressed with merit. The Court finds for accused-appellant Sapla and immediately orders his release from
incarceration.
The Constitutional Right against Unreasonable Searches and Seizures
As eloquently explained by the Court in People v. Tudtud (Tudtud),10 "the Bill of Rights is the bedrock of constitutional
government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes
meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy
in the fundamental law way above the articles on governmental power."11
And in the Bill of Rights, the right against unreasonable searches and seizures is "at the top of the hierarchy of rights, next only to,
if not on the same plane as, the right to life, liberty and property, x x x for the right to personal security which, along with the right
to privacy, is the foundation of the right against unreasonable search and seizure."12
The right of the people against unreasonable searches and seizures is found in Article III, Section 2 of the 1987 Constitution,
which reads:
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.
Hence, as a rule, a search and seizure operation conducted by the authorities is reasonable only when a court issues a search
warrant after it has determined the existence of probable cause through the personal examination under oath or affirmation of
the complainant and the witnesses presented before the court, with the place to be searched and the persons or things to be
seized particularly described.
Because of the sacrosanct position occupied by the right against unreasonable searches and seizures in the hierarchy of rights,
any deviation or exemption from the aforementioned rule is not favored and is strictly construed against the government.
Valid Warrantless Searches and Seizures
There are, however, instances wherein searches are reasonable even in the absence of a search warrant, taking into account the
"uniqueness of 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."13
The known jurisprudential instances of reasonable warrantless searches and seizures are:
 (1) warrantless search incidental to a lawful arrest;
(2) seizure of evidence in plain view;
(3) search of a moving vehicle;
(4) consented warrantless search;
(5) customs search;
(6) stop and frisk; and
(7) exigent and emergency circumstances.14
Search of a Moving Vehicle and its Non-Applicability in the Instant Case
In upholding the warrantless search and seizure conducted by the authorities, the RTC and CA considered the police operation as
a valid warrantless search of a moving vehicle.
According to jurisprudence, "warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability
of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the
warrant may be sought. Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle
is limited to visual inspection."15
On the other hand, an extensive search of a vehicle is permissible, but only when "the officers made it upon probable cause, i.e.,
upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains
[an] item, article or object which by law is subject to seizure and destruction."16
The Court finds error in the CA's holding that the search conducted in the instant case is a search of a moving vehicle. The
situation presented in the instant case cannot be considered as a search of a moving vehicle.
The fairly recent case of People v. Comprado17 (Comprado) is controlling inasmuch as the facts of the said case are virtually
identical to the instant case.
In Comprado, a confidential informant (CI) sent a text message to the authorities as regards an alleged courier of marijuana who
had in his possession a backpack containing marijuana and would be traveling from Bukidnon to Cagayan de Oro City. The CI
eventually called the authorities and informed them that the alleged drug courier had boarded a bus with body number 2646 and
plate number KVP 988 bound for Cagayan de Oro City. The CI added that the man would be carrying a backpack in black and
violet colors with the marking "Lowe Alpine." With this information, the police officers put up a checkpoint, just as what the
authorities did in the instant case. Afterwards, upon seeing the bus bearing the said body and plate numbers approaching the
checkpoint, again similar to the instant case, the said vehicle was flagged down. The police officers boarded the bus and saw a
man matching the description given to them by the CI. The man was seated at the back of the bus with a backpack placed on his
lap. The man was asked to open the bag. When the accused agreed to do so, the police officers saw a transparent cellophane
containing dried marijuana leaves.
In Comprado, the Court held that the search conducted "could not be classified as a search of a moving vehicle. In this particular
type of search, the vehicle is the target and not a specific person."18 The Court added that "in search of a moving vehicle, the
vehicle was intentionally used as a means to transport illegal items. It is worthy to note that the information relayed to the police
officers was that a passenger of that particular bus was carrying marijuana such that when the police officers boarded the bus,
they searched the bag of the person matching the description given by their informant and not the cargo or contents of the said
bus."19
Applying the foregoing to the instant case, it cannot be seriously disputed that the target of the search conducted was not the
passenger jeepney boarded by accused-appellant Sapla nor the cargo or contents of the said vehicle. The target of the search was
the person who matched the description given by the person who called the RPSB Hotline, i.e., the person wearing a collared
white shirt with green stripes, red ball cap, and carrying a blue sack.
As explained in Comprado, "to extend to such breadth the scope of searches on moving vehicles would open the floodgates to
unbridled warrantless searches which can be conducted by the mere expedient of waiting for the target person to ride a motor
vehicle, setting up a checkpoint along the route of that vehicle, and then stopping such vehicle when it arrives at the checkpoint in
order to search the target person."20
Therefore, the search conducted in the instant case cannot be characterized as a search of a moving vehicle.
Probable Cause as an Indispensable Requirement for an Extensive and Intrusive Warrantless Search of a Moving Vehicle
In any case, even if the search conducted can be characterized as a search of a moving vehicle, the operation undertaken by the
authorities in the instant case cannot be deemed a valid warrantless search of a moving vehicle.
In People v. Manago,21 the Court, through Senior Associate Justice Estela M. Perlas-Bernabe, explained that a variant of searching
moving vehicles without a warrant may entail the setting up of military or police checkpoints. The setting up of such checkpoints
is not illegal per se for as long as its necessity is justified by the exigencies of public order and conducted in a way least intrusive
to motorists.
However, in order for the search of vehicles in a checkpoint to be non-violative of an individual's right against unreasonable
searches, the search must be limited to the following: (a) where the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds; (b) where the officer simply looks into a vehicle; (c) where the officer flashes a light
therein without opening the car's doors; (d) where the occupants are not subjected to a physical or body search; (e) where the
inspection of the vehicles is limited to a visual search or visual inspection; and (f) where the routine check is conducted in a fixed
area.22
Routine inspections do not give the authorities carte blanche discretion to conduct intrusive warrantless searches in the absence
of probable cause. When a vehicle is stopped and subjected to an extensive search, as opposed to a mere routine inspection, "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."23
Simply stated, a more extensive and intrusive search that goes beyond a mere visual search of the vehicle necessitates probable
cause on the part of the apprehending officers.
It was in Valmonte v. de Villa24 ( Valmonte) where the Court first held that vehicles can be stopped at a checkpoint and
extensively searched only when there is "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."25 This doctrine
was directly adopted from United States jurisprudence, specifically from the pronouncement of the Supreme Court of the United
States (SCOTUS) in Dyke v. Taylor.26
As subsequently explained by the Court in Caballes v. Court of Appeals,27 probable cause means that there is the existence of
such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by
law is in the place to be searched:
x x x a reasonable ground of suspicion supp01ied 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; or the existence of such facts and circumstances
which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be
searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but
is resolved according to the facts of each case.28
Sheer Unverified Information from an Anonymous Informant does not engender Probable Cause on the part of the Authorities
that warrants an Extensive and Intrusive Search of a Moving Vehicle
As readily admitted by the CA, the singular circumstance that engendered probable cause on the part of the police officers
was the information they received through the RPSB Hotline (via text message) from an anonymous person. Because of this
information, the CA held that there was probable cause on the part of the police to conduct an intrusive search.29
Does the mere reception of a text message from an anonymous person suffice to create probable cause that enables the
authorities to conduct an extensive and intrusive search without a search warrant? The answer is a resounding no.
The Court has already held with unequivocal clarity that in situations involving warrantless searches and seizures, "law enforcers
cannot act solely on the basis of confidential or tipped information. A tip is still hearsay no matter how reliable it may be. It is not
sufficient to constitute probable cause in the absence of any other circumstance that will arouse suspicion."30
A. United States Jurisprudence on Probable Cause vis-a-vis Tipped Information
Considering that the doctrine that an extensive warrantless search of a moving vehicle necessitates probable cause was adopted
by the Court from United States jurisprudence, examining United States jurisprudence can aid in a fuller understanding on the
existence of probable cause vis-a-vis tipped information received from confidential informants.
In the 1964 case of Aguilar v. Texas,31 the SCOTUS delved into the constitutional requirements for obtaining a state search
warrant. In the said case, two Houston police officers applied to a local Justice of the Peace for a warrant to search for narcotics in
the petitioner's home based on "reliable information" received from a supposed credible person that the "heroin, marijuana,
barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of
sale and use contrary to the provisions of the law."32
In invalidating the search warrant, the SCOTUS held that a two pronged test must be satisfied in order to determine whether an
informant's tip is sufficient in engendering probable cause, i.e., (1) the informant's "basis of knowledge" must be revealed and (2)
sufficient facts to establish either the informant's "veracity" or the "reliability" of the informant's report must be provided:
Although an affidavit may be based on hearsay information, and need not reflect the direct personal observations of the
affiant, Jones v. United States, 362 U. S. 257, the magistrate must be informed of some of the underlying circumstances from
which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances
from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.
S. 528, was "credible" or his information "reliable."33
Subsequently, in the 1983 case of Illinois v. Gates,34 the police received an anonymous letter alleging that the respondents were
engaged in selling drugs and that the car of the respondents would be loaded with drugs. Agents of the Drug Enforcement Agency
searched the respondents' car, which contained marijuana and other contraband items.
In finding that there was probable cause, the SCOTUS adopted the totality of circumstances test and held that tipped information
may engender probable cause under "a balanced assessment of the relative weights of all the various indicia of reliability (and
unreliability) attending an informant's tip"35 In the said case, the SCOTUS found that the details of the informant's tip were
corroborated by independent police work.
The SCOTUS emphasized however that "standing alone, the anonymous letter sent to the Bloomingdale Police Department would
not provide the basis for a magistrate's determination that there was probable cause to believe contraband would be found in the
Gateses' car and home. x x x Something more was required, then, before a magistrate could conclude that there was probable
cause to believe that contraband would be found in the Gateses' home and car."36
B. The Line of Philippine Jurisprudence on the Inability of a Solitary Tip to Engender Probable Cause
As early as 1988, our own Court had ruled that an extensive warrantless search and seizure conducted on the sole basis of a
confidential tip is tainted with illegality. In People v. Aminnudin,37 analogous to the instant case, the authorities acted upon an
information that the accused would be arriving from Iloilo on board a vessel, the M/V Wilcon 9. The authorities waited for the
vessel to arrive, accosted the accused, and inspected the latter's bag wherein bundles of marijuana leaves were found. The Court
declared that the search and seizure was illegal, holding that, at the time of his apprehension, Aminnudin was not "committing a
crime nor was it shown that he was about to do so or that he had just done so. x x x 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."38
Subsequently, in People v. Cuizon,39 the Court, through former Chief Justice Artemio V. Panganiban, held that the warrantless
search and subsequent arrest of the accused were deemed illegal because "the prosecution failed to establish that there was
sufficient and reasonable ground for the NBI agents to believe that appellants had committed a crime at the point when the
search and arrest of Pua and Lee were made."40 In reaching this conclusion, the Court found that the authorities merely relied on
"the alleged tip that the NBI agents purportedly received that morning."41 The Court characterized the tip received by the
authorities from an anonymous informant as "hearsay information"42 that cannot engender probable cause.
In People v. Encinada,43 the authorities acted solely on an informant's tip and stopped the tricycle occupied by the accused and
asked the latter to alight. The authorities then rummaged through the two strapped plastic baby chairs that were loaded inside
the tricycle. The authorities then found a package of marijuana inserted between the two chairs. The Court, again through former
Chief Justice Artemio V. Panganiban, held that "raw intelligence"44 was not enough to justify the warrantless search and seizure.
"The prosecution's evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he
rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare
circumstances."45
Likewise analogous to the instant case is People v. Aruta46 (Aruta) where an informant had told the police that a certain "Aling
Rosa" would be transporting illegal drugs from Baguio City by bus. Hence, the police officers situated themselves at the bus
terminal. Eventually, the informant pointed at a woman crossing the street and identified her as "Aling Rosa." Subsequently, the
authorities apprehended the woman and inspected her bag which contained marijuana leaves.
In finding that there was an unlawful warrantless search, the Court in Aruta held that "it was only when the informant pointed to
accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as
clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was
committing a crime, except for the pointing finger of the informant."47 Hence, the Court held that the search conducted on the
accused therein based solely on the pointing finger of the informant was "a clear violation of the constitutional guarantee against
unreasonable search and seizure."48
Of more recent vintage is People v. Cogaed49 (Cogaed), which likewise involved a search conducted through a checkpoint put up
after an "unidentified civilian informer" shared information to the authorities that a person would be transporting marijuana.
In finding that there was no probable cause on the part of the police that justified a warrantless search, the Court, through
Associate Justice Marvic Mario Victor F. Leonen, astutely explained that in cases finding sufficient probable cause for the conduct
of warrantless searches, "the police officers using their senses observed facts that led to the suspicion. Seeing a man with reddish
eyes and walking in a swaying manner, based on their experience, is indicative of a person who uses dangerous and illicit
drugs."50 However, the Court reasoned that the case of the accused was different because "he was simply a passenger carrying a
bag and traveling aboard a jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag.
The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the driver who signaled to the
police that Cogaed was 'suspicious.'"51
In Cogaed, the Court stressed that in engendering probable cause that justifies a valid warrantless search, "[i]t is the police officer
who should observe facts that would lead to a reasonable degree of suspicion of a person. The police officer should not adopt the
suspicion initiated by another person. This is necessary to justify that the person suspected be stopped and reasonably searched.
Anything less than this would be an infringement upon one's basic right to security of one's person and effects."52 The Court
explained that "the police officer, with his or her personal knowledge, must observe the (acts leading to the suspicion of an illicit
act," and not merely rely on the information passed on to him or her.53
Adopting former Chief Justice Lucas P. Bersamin's Dissenting Opinion in Esquillo v. People,54 the Court in Cogaed stressed that
reliance on only one suspicious circumstance or none at all will not result in a reasonable search.55 The Court emphasized that
the matching of information transmitted by an informant "still remained only as one circumstance. This should not have been
enough reason to search Cogaed and his belongings without a valid search warrant."56
Subsequently, in Veridiano v. People57 (Veridiano), a concerned citizen informed the police that the accused was on the way to
San Pablo City to obtain illegal drugs. Based on this tip, the authorities set up a checkpoint. The police officers at the checkpoint
personally knew the appearance of the accused. Eventually, the police chanced upon the accused inside a passenger jeepney
coming from San Pablo, Laguna. The jeepney was flagged down and the police asked the passengers to disembark. The police
officers instructed the passengers to raise their t-shirts to check for possible concealed weapons and to remove the contents of
their pockets. The police officers recovered from the accused a tea bag containing what appeared to be marijuana.
In finding the warrantless search invalid, the Court, again through Associate Justice Marvic Mario Victor F. Leonen, held that the
accused was a "mere passenger in a jeepney who did not exhibit any act that would give police officers reasonable suspicion to
believe that he had drugs in his possession. x x x There was no evidence to show that the police had basis or personal knowledge
that would reasonably allow them to infer anything suspicious."58
The Court correctly explained that "law enforcers cannot act solely on the basis of confidential or tipped information. A tip is still
hearsay no matter how reliable it may be. It is not sufficient to constitute probable cause in the absence of any other circumstance
that will arouse suspicion."59
A year after Veridiano, the Court decided the case of Comprado. As in the instant case, the authorities alleged that they possessed
reasonable cause to conduct a warrantless search solely on the basis of information relayed by an informant.
The Court held in Comprado that the sole information relayed by an informant was not sufficient to incite a genuine reason to
conduct an intrusive search on the accused. The Court explained that "no overt physical act could be properly attributed to
accused-appellant as to rouse suspicion in the minds of the arresting officers that he had just committed, was committing, or was
about to commit a crime."60
The Court emphasized that there should be the "presence of more than one seemingly innocent activity from which, taken
together, warranted a reasonable inference of criminal activity."61 In the said case, as in the instant case, the accused was just a
passenger carrying his bag. "There is nothing suspicious much less criminal in said act. Moreover, such circumstance, by itself,
could not have led the arresting officers to believe that accused-appellant was in possession of marijuana."62
Recently, the Court unequivocally declared in People v. Yanson63 (Yanson) that a solitary tip hardly suffices as probable cause
that warrants the conduct of a ·warrantless intrusive search and seizure.
In Yanson, which involves an analogous factual milieu as in the instant case, "the Municipal Police Station of M'lang, North
Cotabato received a radio message about a silver gray Isuzu pickup - with plate number 619 and carrying three (3) people - that
was transporting marijuana from Pikit. The Chief of Police instructed the alert team to set up a checkpoint on the riverside police
outpost along the road from Matalam to M'lang."64
Afterwards, "[a]t around 9:30 a.m., the tipped vehicle reached the checkpoint and was stopped by the team of police officers on
standby. The team leader asked the driver about inspecting the vehicle. The driver alighted and, at an officer's prodding, opened
the pickup's hood. Two (2) sacks of marijuana were discovered beside the engine."65
In the erudite ponencia of Associate Justice Marvic Mario Victor F. Leonen, the Court held that, in determining whether there is
probable cause that warrants an extensive or intrusive warrantless searches of a moving vehicle, "bare suspicion is never enough.
While probable cause does not demand moral certainty, or evidence sufficient to justify conviction, it requires the existence of 'a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to
believe that the person accused is guilty of the offense with which he is charged.'"66
The Court explained that in prior cases wherein the Court validated warrantless searches and seizures on the basis of tipped
information, "the seizures and arrests were not merely and exclusively based on the initial tips. Rather, they were prompted by
other attendant circumstances. Whatever initial suspicion they had from being tipped was progressively heightened by other
factors, such as the accused's failure to produce identifying documents, papers pertinent to the items they were carrying, or their
display of suspicious behavior upon being approached."67 In such cases, the finding of probable cause was premised "on more
than just the initial information relayed by assets. It was the confluence of initial tips and a myriad of other occurrences that
ultimately sustained probable cause."68 However, the case of Yanson was markedly different from these other cases. Just as in
the instant case, the police officers proceeded to effect a search, seizure, and arrest on the basis of a solitary tip:
This case is markedly different. The police officers here proceeded to effect a search, seizure, and arrest on the basis of a solitary
tip: the radio message that a certain pickup carrying three (3) people was transporting marijuana from Pikit. When the accused's
vehicle (ostensibly matching this description) reached the checkpoint, the arresting officers went ahead to initiate a search
asking the driver about inspecting the vehicle. Only upon this insistence did the driver alight. It was also only upon a police
officer's further prodding did he open the hood.
The records do not show, whether on the basis of indubitably established facts or the prosecution's mere allegations, that the
three (3) people on board the pickup were acting suspiciously, or that there were other odd circumstances that could have
prompted the police officers to conduct an extensive search. Evidently, the police officers relied solely on the radio message they
received when they proceeded to inspect the
vehicle.69
In ruling that the sole reliance on tipped information, on its own, furnished by informants cannot produce probable cause, the
Court held that "[e]xclusive reliance on information tipped by informants goes against the very nature of probable cause. A single
hint hardly amounts to "the existence of such facts and circumstances which would lead a reasonably 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 to be
searched."70
As correctly explained by the Court in Yanson, "[t]o maintain otherwise would be to sanction frivolity, opening the floodgates to
unfounded searches, seizures, and arrests that may be initiated by sly informants."71
And very recently, on September 4, 2019, the Court, through former Chief Justice Lucas P. Bersamin, promulgated its Decision
in People v. Gardon-Mentoy72 (Gardon-Mentoy). In the said case, police officers had set up a checkpoint on the National Highway
in Barangay Malatgao, Narra, Palawan based on a tip from an unidentified informant that the accused-appellant would be
transporting dangerous drugs on board a shuttle van. Eventually, the authorities flagged down the approaching shuttle van
matching the description obtained from the informant and conducted a warrantless search of the vehicle, yielding the discovery
of a block-shaped bundle containing marijuana.
In holding that the warrantless search and seizure were without probable cause, the Court held that a tip, in the absence of other
circumstances that would confirm their suspicion coming from the personal knowledge of the searching officers, was not yet
actionable for purposes of conducting a search:
Without objective facts being presented here by which we can test the basis for the officers' suspicion about the block-shaped
bundle contained marijuana, we should not give unquestioned acceptance and belief to such testimony. The mere subjective
conclusions of the officers concerning the existence of probable cause is never binding on the court whose duty remains to
"independently scrutinize the objective facts to determine the existence of probable cause," for, indeed, "the courts have never
hesitated to overrule an officer's determination of probable cause when none exists."
But SPO2 Felizarte also claimed that it was about then when the accused-appellant panicked and tried to get down from the van,
impelling him and PO1 Rosales to restrain her. Did such conduct on her part, assuming it did occur, give sufficient cause to search
and to arrest?
For sure, the transfer made by the accused-appellant of the block shaped bundle from one bag to another should not be cited to
justify the search if the search had earlier commenced at the moment PO1 Rosales required her to produce her baggage. Neither
should the officers rely on the still-unverified tip from the unidentified informant, without more, as basis to initiate the search of
the personal effects. The officers were themselves well aware that the tip, being actually double hearsay as to them, called for
independent verification as its substance and reliability, and removed the foundation for them to rely on it even under the
circumstances then obtaining. In short, the tip, in the absence of other circumstances that would confirm their suspicion coming
to the knowledge of the searching or arresting officer, was not yet actionable for purposes of effecting an arrest or conducting a
search.73
The Court is not unaware that in the recent case of Saluday v. People74 (Saluday), a bus inspection conducted by Task Force
Davao at a military checkpoint was considered valid. However, in the said case, the authorities merely conducted a "visual and
minimally intrusive inspection"75 of the accused's bag-by simply lifting the bag that noticeably appeared to have contained
firearms. This is markedly dissimilar to the instant case wherein the search conducted entailed the probing of the contents of the
blue sack allegedly possessed by accused-appellant Sapla.
Moreover, in Saluday, the authorities never received nor relied on sheer information relayed by an informant, unlike in the
instant case. In Saluday, the authorities had relied on their own senses in determining probable cause, i.e., having personally lifted
the bag revealing that a firearm was inside, as well as having seen the very suspicious looks being given by the accused therein.
Further, in Saluday, the Court laid down the following conditions in allowing a reasonable search of a bus while in transit: (1) the
manner of the search must be least intrusive; (2) the search must not be discriminatory; (3) as to the purpose of the search, it
must be confined to ensuring public safety; and (4) the courts must be convinced that precautionary measures were in place to
ensure that no evidence was planted against the accused.76
It must be stressed that none of these conditions exists in the instant case.
First, unlike in Saluday wherein the search conducted was merely visual and minimally intrusive, the search undertaken on
accused-appellant Sapla was extensive, reaching inside the contents of the blue sack that he allegedly possessed.
Second, the search was directed exclusively towards accused appellant Sapla; it was discriminatory. Unlike in Saluday where the
bags of the other bus passengers were also inspected, the search conducted in the instant case focused exclusively on accused-
appellant Sapla.
Third, there is no allegation that the search was conducted with the intent of ensuring public safety. At the most, the search was
conducted to apprehend a person who, as relayed by an anonymous informant, was transporting illegal drugs.
Lastly, the Court is not convinced that sufficient precautionary measures were undertaken by the police to ensure that no
evidence was planted against accused-appellant Sapla, considering that the inventory, photographing, and marking of the
evidence were not immediately conducted after the apprehension of accused-appellant Sapla at the scene of the incident.
C. The Divergent Line of Jurisprudence
At this juncture, the Court clarifies that there is indeed a line of jurisprudence holding that information received by the police
provides a valid basis for conducting a warrantless search,77 tracing its origins to the 1990 cases of People v.
Tangliben78 (Tangliben) and People v. Maspil, Jr.79 (Maspil, Jr.). Several of the cases following this line of jurisprudence also
heavily rely on the 1992 case of People v. Bagista80 (Bagista).
It is high time for a re-examination of this divergent line of jurisprudence.
In Tangliben, acting on information supplied by informers that dangerous drugs would be transported through a bus, the
authorities conducted a surveillance operation at the Victory Liner Terminal compound in San Fernando, Pampanga. At 9:30 in
the evening, the police noticed a person carrying a red travelling bag who was acting suspiciously. They confronted him and
requested him to open his bag. The police found marijuana leaves wrapped in a plastic wrapper inside the bag.
It must be stressed that in Tangliben, the authorities' decision to conduct the warrantless search did not rest solely on the tipped
information supplied by the informants. The authorities, using their own personal observation, saw that the accused was acting
suspiciously.
Similar to Tangliben, in the great majority of cases upholding the validity of a warrantless search and seizure on the basis of a
confidential tip, the police did not rely exclusively on information sourced from the informant. There were overt acts and other
circumstances personally observed by the police that engendered great suspicion. Hence, the holding that an inclusive
warrantless search can be conducted on the solitary basis of tipped information is far from being an established and inflexible
doctrine.
To cite but a few examples, in the early case of People v. Malmstdedt,81 the authorities set up a checkpoint in response to some
reports that a Caucasian man was coming from Sagada with dangerous drugs in his possession. At the checkpoint, the officers
intercepted a bus and inspected it. Upon reaching the accused, the police personally observed that there was a bulge on the
accused's waist. This prompted the officer to ask for the accused's identification papers, which the accused failed to provide. The
accused was then asked to reveal what was bulging on his waist, which turned out to be hashish, a derivative of marijuana. In this
case, the Court ruled that the probable cause justifying the warrantless search was based on the personal observations of the
authorities and not solely on the tipped information:
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.82
In People v. Tuazon,83 the authorities did not solely rely on confidential information that the accused would deliver an
unspecified amount of shabu using a Gemini car bearing plate number PFC 411. Upon conducting a visual search of the motor
vehicle that was flagged down by the authorities, the police personally saw a gun tucked on the accused's waist. Moreover, the
accused was not able to produce any pertinent document related to the firearm. This was what prompted the police to order the
accused to alight from the vehicle.
In People v. Quebral,84 the authorities did not solely rely on the police informer's report that two men and a woman on board an
owner type jeep with a specific plate number would deliver shabu, a prohibited drug, at a Petron Gasoline Station in Balagtas,
Bulacan. The authorities conducted a surveillance operation and personally saw the accused handing out a white envelope to her
co-accused, a person included in the police's drug watch list.
In People v. Saycon,85 in holding that the authorities had probable cause in conducting an intrusive warrantless search, the Court
explained that probable cause was not engendered solely by the receipt of confidential information. Probable cause was
produced because a prior test-buy was conducted by the authorities, which confirmed that the accused was engaged in the
transportation and selling of shabu.
In Manalili v. Court of Appeals and People,86 the person subjected to a warrantless search and seizure was personally observed
by the police to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the
policemen. When approached and asked what he was holding in his hands, he tried to resist. The Court held that the policemen
had sufficient reason to accost the accused-appellant to determine if he was actually "high" on drugs due to his suspicious
actuations, coupled with the fact that based on information, this area was a haven for drug addicts.87
In People v. Solayao,88 "police officers noticed a man who appeared drunk. This man was also 'wearing a camouflage uniform or
a jungle suit.' Upon seeing the police, the man fled. His flight added to the suspicion. After stopping him the police officers found
an unlicensed 'homemade firearm' in his possession."89
In People v. Lo Ho Wing,90 the authorities did not rely on an anonymous, unverified tip. Deep penetration agents were recruited
to infiltrate the crime syndicate. An undercover agent actually met and conferred with the accused, personally confirming the
criminal activities being planned by the accused. In fact, the agent regularly submitted reports of his undercover activities on the
criminal syndicate.
The jurisprudence cited by the CA in holding that the anonymous text message sent to the RPSB Hotline sufficed to engender
probable cause on the part of the authorities, i.e., People v. Tampis91 (Tampis), stated that "tipped information is - sufficient to
provide probable cause to effect a warrantless search and seizure."92
However, in Tampis, as in the aforementioned jurisprudence, the police did not merely rely on information relayed by an
informant. Prior to the warrantless search conducted, the police actually "conducted a surveillance on the intended place and saw
both appellants packing the suspected marijuana leaves into a brown bag with the markings 'Tak Tak Tak Ajinomoto' inscribed
on its side."93 In Tampis, the authorities were able to personally witness the accused packing illegal drugs into the brown bag
prior to the warrantless search and seizure.
Moreover, it is observed that when the Court in Tampis held that "tipped information is sufficient to provide probable cause to
effect a warrantless search and seizure,"94 the Court cited the case of Aruta as its basis. However, the Court in Aruta did not hold
that tipped information in and of itself is sufficient to create probable cause. In fact, in Aruta, as already previously explained,
despite the fact that the apprehending officers already had prior knowledge from their informant regarding Aruta's alleged
activities, the warrantless search conducted on Aruta was deemed unlawful for lack of probable cause.
The earliest case decided by the Court which upheld the validity of an extensive warrantless search based exclusively on a
solitary tip is the case of Maspil, Jr., wherein the authorities set up a checkpoint, flagged down the jeep driven by the accused, and
examined the contents thereof on the sole basis of information provided by confidential informers.
In justifying the validity of the warrantless search, the Court in Maspil, Jr. depended heavily on the early case of Valmonte, which
delved into the constitutionality of checkpoints set up in Valenzuela City.
It bears stressing that the Court in Valmonte never delved into the validity of warrantless searches and seizures on the pure basis
of confidential information. Valmonte did not hold that in checkpoints, intrusive searches can be conducted on the sole basis of
tipped information. Valmonte merely stated that checkpoints are not illegal per se.95 In fact, in Valmonte, the Court stressed that
"[f]or 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."96
Hence, the jurisprudential support of the Court's holding in Maspil, Jr. is, at best, frail.
With respect to Bagista, the Court held therein that the authorities had probable cause to search the accused's belongings without
a search warrant based solely on information received from a confidential informant.
In Bagista, the Court relied heavily on the SCOTUS' decision in Carroll vs. U.S97 (Carroll) in holding that "[w]ith regard to the
search of moving vehicles, this had 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."98
Does Carroll support the notion that an unverified tipped information engenders probable cause? In Carroll, which upheld the
validity of a warrantless search of a vehicle used to transport contraband liquor in Michigan, the SCOTUS found that the
warrantless search was justified in light of the following circumstances:
The search and seizure were made by Cronenwett, Scully and Thayer, federal prohibition agents, and one Peterson, a state officer,
in December, 1921, as the car was going westward on the highway between Detroit and Grand Rapids at a point 16 miles outside
of Grand Rapids. The facts leading to the search and seizure were as follows: on September 29th, Cronenwett and Scully were in
an apartment in Grand Rapids. Three men came to that apartment, a man named Kruska and the two defendants, Carroll and
Kiro. Cronenwett was introduced to them as one Stafford, working in the Michigan Chair Company in Grand Rapids, who wished
to buy three cases of whiskey. The price was fixed at $13 a case. The three men said they had to go to the east end of Grand
Rapids to get the liquor and that they would be back in half or three-quarters of an hour. They went away, and in a short time
Kruska came back and said they could not get it that night, that the man who had it was not in, but that they would deliver it the
next day. They had come to the apartment in an automobile known as an Oldsmobile Roadster, the number of which Cronenwett
then identified, a[s] did Scully. The proposed vendors did not return the next day, and the evidence disclosed no explanation of
their failure to do so. One may surmise that it was suspicion of the real character of the proposed purchaser, whom Carroll
subsequently called by his first name when arrested in December following. Cronenwett and his subordinates were engaged in
patrolling the road leading from Detroit to Grand Rapids, looking for violations of the Prohibition Act. This seems to have been
their regular tour of duty. On the 6th of October, Carroll and Kiro, going eastward from Grand Rapids in the same Oldsmobile
Roadster, passed Cronenwett and Scully some distance out from Grand Rapids. Cronenwett called to Scully, who was taking
lunch, that the Carroll boys had passed them going toward Detroit, and sought with Scully to catch up with them to see where
they were going. The officers followed as far as East Lansing, half way to Detroit, but there lost trace of them. On the 15th of
December, some two months later, Scully and Cronenwett, on their regular tour of duty, with Peterson, the State officer, were
going from Grand Rapids to Ionia, on the road to Detroit, when Kiro and Carroll met and passed them in the same automobile,
coming from the direction of Detroit to Grand Rapids. The government agents turned their car and followed the defendants to a
point some sixteen miles east of Grand Rapids, where they stopped them and searched the car.
xxxx
We know in this way that Grand Rapids is about 152 miles from Detroit, and that Detroit and its neighborhood along the Detroit
River, which is the International Boundary, is one of the most active centers for introducing illegally into this country spirituous
liquors for distribution into the interior. It is obvious from the evidence that the prohibition agents were engaged in a regular
patrol along the important highways from Detroit to Grand Rapids to stop and seize liquor carried in automobiles. They knew or
had convincing evidence to make them believe that the Carroll boys, as they called them, were so-called "bootleggers" in Grand
Rapids, i.e., that they were engaged in plying the unlawful trade of selling such liquor in that city. The officers had soon after
noted their going from Grand Rapids half way to Detroit, and attempted to follow them to that city to see where they went, but
they escaped observation. Two months later, these officers suddenly met the same men on their way westward, presumably from
Detroit. The partners in the original combination to sell liquor in Grand Rapids were together in the same automobile they had
been in the night when they tried to furnish the whisky to the officers which was thus identified as part of the firm equipment.
They were coming from the direction of the great source of supply for their stock to Grand Rapids, where they plied their trade.
That the officers, when they saw the defendants, believed that they were carrying liquor we can have no doubt, and we think it is
equally clear that they had reasonable cause for thinking so. Emphasis is put by defendant's counsel on the statement made by
one of the officers that they were not looking for defendants at the particular time when they appeared. We do not perceive that it
has any weight. As soon as they did appear, the officers were entitled to use their reasoning faculties upon all the facts of which
they had previous knowledge in respect to the defendants.99
Hence, in Carroll, the probable cause justifying the warrantless search was not founded on information relayed by confidential
informants; there were no informants involved in the case whatsoever. Probable cause existed because the state authorities
themselves had personally interacted with the accused, having engaged with them in an undercover transaction.
Therefore, just as in Maspil, Jr., the jurisprudential support upon which Bagista heavily relies is not strong.
It is also not lost on the Court that in Bagista, the Court did not decide with unanimity.
In his Dissenting Opinion in Bagista, Associate Justice Teodoro R. Padilla expressed the view that "the information alone received
by the NARCOM agents, without other suspicious circumstances surrounding the accused, did not give rise to a probable cause
justifying the warrantless search made on the bag of the accused." In explaining his dissent, Justice Padilla correctly explained
that:
In the case at bar, the NARCOM agents searched the bag of the accused on the basis alone of an information they received that a
woman, 23 years of age with naturally curly hair, and 5'2" or 5'3" in height would be transporting marijuana. The extensive
search was indiscriminately made on all the baggages of all passengers of the bus where the accused was riding, whether male or
female, and whether or not their physical appearance answered the description of the suspect as described in the alleged
information. If there really was such an information, as claimed by the NARCOM agents, it is a perplexing thought why they had to
search the baggages of ALL passengers, not only the bags of those who appeared to answer the description of the woman
suspected of carrying marijuana.
Moreover, the accused was not at all acting suspiciously when the NARCOM agents searched her bag, where they allegedly found
the marijuana.
From the circumstances of the case at bar, it would seem that the NARCOM agents were only fishing for evidence when they
searched the baggages of all the passengers, including that of the accused. They had no probable cause to reasonably believe that
the accused was the woman carrying marijuana alluded to in the information they allegedly received. Thus, the warrantless
search made on the personal effects of herein accused on the basis of mere information, without more, is to my mind bereft of
probable cause and therefore, null and void. It follows that the marijuana seized in the course of such warrantless search was
inadmissible in evidence.100
It is said that dissenting opinions often appeal to the intelligence of a future age.101 For Justice Padilla's Dissenting Opinion, such
age has come. This holding, which is reflected in the recent tide of jurisprudence, must now fully find the light of day as it is more
in line with the basic constitutional precept that the Bill of Rights occupies a position of primacy in the fundamental law, hovering
above the articles on governmental power. The Court's holding that tipped information, on its own, cannot engender probable
cause is guided by the principle that the right against unreasonable searches and seizures sits at the very top of the hierarchy of
rights, wherein any allowable transgression of such right is subject to the most stringent of scrutiny.
Hence, considering the foregoing discussion, the Court now holds that the cases adhering to the doctrine that exclusive reliance
on an unverified, anonymous tip cannot engender probable cause that permits a warrantless search of a moving vehicle that goes
beyond a visual search - which include both long-standing and the most recent jurisprudence - should be the prevailing and
controlling line of jurisprudence.
Adopting a contrary rule would set an extremely dangerous and perilous precedent wherein, on the sheer basis of an unverified
information passed along by an alleged informant, the authorities are given the unbridled license to undertake extensive and
highly intrusive searches, even in the absence of any overt circumstance that engenders a reasonable belief that an illegal activity
is afoot.
them, the police simply had no reason to reasonably believe that the passenger vehicle contained an item, article or object which
by law is subject to seizure and destruction.
What further militates against the finding that there was sufficient probable cause on the part of the police to conduct an
intrusive search is the fact that the information regarding the description of the person alleged to be transporting illegal
drugs, i.e., wearing a collared white shirt with green stripes, red ball cap, and carrying a blue sack, was relayed merely through a
text message from a completely anonymous person. The police did not even endeavor to inquire how this stranger gathered the
information. The authorities did not even ascertain in any manner whether the information coming from the complete stranger
was credible. After receiving this anonymous text message, without giving any second thought, the police accepted the unverified
information as gospel truth and immediately proceeded in establishing the checkpoint. To be sure, information coming from a
complete and anonymous stranger, without the police officers undertaking even a semblance of verification, on their own, cannot
reasonably produce probable cause that warrants the conduct of an intrusive search.
In fact, as borne from the cross-examination of PO3 Mabiasan, the authorities did not even personally receive and examine the
anonymous text message. The contents of the text message were only relayed to them by a duty guard, whose identity the police
could not even recall:
Q x x x [W]ho received the information, was it you or another person, Mr. Witness?
A The duty guard, sir.

This fear was eloquently expressed by former Chief Justice Artemio V. Panganiban in his Concurring and Dissenting Opinion
in People v. Montilla.102 In holding that law and jurisprudence require stricter grounds for valid arrests and searches, former Q And usually now, informations (sic) is usually transmitted and text (sic) to the duty guard, Mr. Witness?
Chief Justice Panganiban explained that allowing warrantless searches and seizures based on tipped information alone places the
sacred constitutional right against unreasonable searches and seizures in great jeopardy: A Yes, sir.

x x x Everyone would be practically at the mercy of so-called informants, reminiscent of the Makapilis during the Japanese Q Can you produce the transcript of the text message (sic) can you write in a piece of paper, Mr. Witness?
occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and
possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their
accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers A Our duty guard just informed us the information, sir.
can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw
intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for Q So the text was not preserve (sic), Mr. Witness?
validly effecting an arrest or conducting a search and seizure. Indeed, the majority's ruling would open loopholes that would
allow unreasonable arrests, searches and seizures.103
A Yes, sir.
It is not hard to imagine the horrid scenarios if the Court were to allow intrusive warrantless searches and seizures on the
solitary basis of unverified, anonymous tips. Q Who is you duty guard, Mr. Witness?

Any person can easily hide in a shroud of anonymity and simply send false and fabricated information to the police. Unscrupulous A I cannot remember, sir.104
persons can effortlessly take advantage of this and easily harass and intimidate another by simply giving false information to the
police, allowing the latter to invasively search the vehicle or premises of such person on the sole basis of a bogus tip.
Simply stated, the information received through text message was not only hearsay evidence; it is double hearsay.

On the side of the authorities, unscrupulous law enforcement agents can easily justify the infiltration of a citizen's vehicle or
Moreover, as testified by PO3 Mabiasan himself, tipped information received by the authorities through the duty guard was
residence, violating his or her right to privacy, by merely claiming that raw intelligence was received, even if there really was no
unwritten and unrecorded, violating the Standard Operating Procedure that any information received by a police station that
such information received or if the information received was fabricated.
shall be duly considered by the authorities should be properly written in a log book or police blotter:

Simply stated, the citizen's sanctified and heavilv-protected right against unreasonable search and seizure will be at the mercy a
Q Is it not an (sic) Standard Operating Procedure that any information received by the Police Stations or a detachment properly
phony tips. The right against unreasonable searches and seizures will be rendered hollow and meaningless. The Court cannot
written in a log book or written in a Police blotter, that is the Standard Operating Procedure, correct, Mr. Witness?
sanction such erosion of the Bill of Rights.

A Yes, sir.
D. The Absence of Probable Cause in the Instant Case

Q It was not written the information that you received, correct, Mr. Witness?
Applying the foregoing discussion in the instant case, to reiterate, the police merely adopted the unverified and unsubstantiated
suspicion of another person, i.e., the person who sent the text through the RPSB Hotline. Apart from the information passed on to
A Not at that time, sir.105
Further, it does not escape the attention of the Court that, as testified to by PSI Ngoslab on cross-examination, the mobile phone
which received the anonymous person's text message was not even an official government issued phone.106 From the records of
the case, it is unclear as to who owned or possessed the said phone used as the supposed official hotline of the RPSB Office.
Furthermore, PSI Ngoslab testified that he was not even sure whether the said official hotline still existed.107
Surely, probable cause justifying an intrusive warrantless search and seizure cannot possibly arise from double hearsay evidence
and from an irregularly-received tipped information. A reasonably discreet and prudent man will surely not believe that an
offense has been committed and that the item sought in connection with said offense are in the place to be searched
based solely on the say-so of an unknown duty guard that a random, unverified text message was sent to an unofficial mobile
phone by a complete stranger.
Therefore, with the glaring absence of probable cause that justifies an intrusive warrantless search, considering that the police
officers failed to rely on their personal knowledge and depended solely on an unverified and anonymous tip, the warrantless
search conducted on accused-appellant Sapla was an invalid and unlawful search of a moving vehicle.
The Inapplicability of The Other Instances of Reasonable Warrantless Searches and Seizures
Neither are the other instances of reasonable warrantless searches and seizures applicable in the instant case.
Without need of elaborate explanation, the search conducted on accused-appellant Sapla was not incidental to a lawful arrest.
Such requires a lawful arrest that precedes the search, which is not the case here. Further, the prosecution has not alleged and
proven that there was a seizure of evidence in plain view, that it was a customs search, and that there were exigent and
emergency circumstances that warranted a warrantless search.
Neither can the search conducted on accused-appellant Sapla be considered a valid stop and frisk search. The Court has explained
that stop and frisk searches refer to 'the act of a police officer to stop a citizen on the street, interrogate him, and pat him for
weapon(s) or contraband.' Thus, the allowable scope of a 'stop and frisk' search is limited to a "protective search of outer clothing
for weapons."108 The search conducted by the authorities on accused-appellant Sapla went beyond a protective search of outer
clothing for weapons or contraband.
Moreover, while it was clarified by the Court in Malacat v. Court of Appeals109 that probable cause is not required to
conduct stop and frisk searches, "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."110 In Comprado, Cogaed, and Veridiano, the Court has held that mere reliance on information relayed by
an informant does not suffice to provide a genuine reason for the police to conduct a warrantless search and seizure. In other
words, in the aforesaid cases, the Court has held that information from an informant is mere suspicion that does not validate
a stop and frisk search.
Invalid Consented Warrantless Search
Neither can the Court consider the search conducted on accused-appellant Sapla as a valid consented search.
The CA found that accused-appellant Sapla "consented to the search in this case and that the illegal drugs - four (4) bricks of
marijuana, discovered as a result of consented search [are] admissible in evidence."111
The Court disagrees.
In Tudtud, the Court held that there can only be an effective waiver of rights against unreasonable searches and seizures if the
following requisites are present:
1. It must appear that the rights exist;
2. The person involved had knowledge, actual or constructive, of the existence of such right; and
3. Said person had an actual intention to relinquish the right.112
Considering that a warrantless search is in derogation of a constitutional right, the Court has held that "[t]he fundamental law
and jurisprudence require more than the presence of these circumstances to constitute a valid waiver of the constitutional right
against unreasonable searches and seizures. Courts indulge every reasonable presumption against waiver of fundamental
constitutional rights; acquiescence in the loss of fundamental rights is not to be presumed. The fact that a person failed to object
to a search does not amount to permission thereto."113
Hence, even in cases where the accused voluntarily handed her bag114 or the chairs containing marijuana to the arresting
officer,115 the Court has held there was no valid consent to the search.116
Again, in Veridiano, the Court emphasized that the consent to a warrantless search and seizure must be unequivocal, specific,
intelligently given and unattended by duress or coercion.117 Mere passive conformity to the warrantless search is only an
implied acquiescence which does not amount to consent and that the presence of a coercive environment negates the cl2im that
the petitioner therein consented to the warrantless search.118
The very recent case of Yanson is likewise instructive. As in the instant case, "Sison, [the therein accused] who was then unarmed,
was prodded by the arresting officers to open the pickup's hood. His beguiling conformity is easily accounted by how he was then
surrounded by police officers who had specifically flagged him and his companions down. He was under the coercive force of
armed law enforcers. His consent, if at all, was clearly vitiated."119
In the instant case, the totality of the evidence presented convinces the Court that accused-appellant Sapla's apparent consent to
the search conducted by the police was not unequivocal, specific, intelligently given, and unattended by duress or coercion. It
cannot be seriously denied that accused-appellant Sapla was subjected to a coercive environment, considering that he was
confronted by several armed police officers in a checkpoint.
In fact, from the testimony of PO3 Mabiasan himself, it becomes readily apparent that accused-appellant Sapla's alleged voluntary
opening of the sack was not unequivocal. When PO3 Mabiasan asked accused-appellant Sapla to open the sack, the latter clearly
hesitated and it was only "[a]fter a while [that] he voluntarily opened [the sack]."120
At most, accused-appellant Sapla's alleged act of opening the blue sack was mere passive conformity to a warrantless search
conducted in a coercive and intimidating environment. Hence, the Court cannot consider the search conducted as a valid
consented search.
The Exclusionary Rule or Fruit of the Poisonous Tree Doctrine
The necessary and inescapable consequence of the illegality of the search and seizure conducted by the police in the instant case
is the inadmissibility of the drug specimens retrieved.
According to Article III, Section 3(2) of the Constitution, any evidence obtained in violation of the right against unreasonable
searches and seizures shall be inadmissible for any purpose in any proceeding.
Known as the exclusionary rule, "evidence obtained and confiscated on the occasion of such unreasonable searches and seizures
[is] deemed tainted and should be excluded for being the proverbial fruit of a poisonous tree. In other words, evidence obtained
from unreasonable searches and seizures shall be inadmissible in evidence for any purpose in any proceeding."121
Therefore, with the inadmissibility of the confiscated marijuana bricks, there is no more need for the Court to discuss the other
issues surrounding the apprehension of accused-appellant Sapla, particularly the gaps in the chain of custody of the alleged
seized marijuana bricks, which likewise renders the same inadmissible. The prosecution is left with no evidence left to support
the conviction of accused-appellant Sapla. Consequently, accused-appellant Sapla is acquitted of the crime charged.
Epilogue

The Court fully recognizes the necessity of adopting a resolute and aggressive stance against the menace of illegal drugs. Our
Constitution declares that the maintenance of peace and order and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.122

Nevertheless, by sacrificing the sacred and indelible right against unreasonable searches and seizures for expediency's sake, the
very maintenance of peace and order sought after is rendered wholly nugatory. By disregarding basic constitutional rights as a
means to curtail the proliferation of illegal drugs, instead of protecting the general welfare, oppositely, the general welfare is
viciously assaulted. In other words, when the Constitution i.s disregarded, the battle waged against illegal drugs becomes a self-
defeating and self-destructive enterprise. A battle waged against illegal drugs that tramples on the rights of the people is not a
war on drugs; it is a war against the people.123

The Bill of Rights should never be sacrificed on the altar of convenience. Otherwise, the malevolent mantle of the rule of men
dislodges the rule of law.124

WHEREFORE, in view of the foregoing, the appeal is hereby GRANTED. The Decision dated April 24, 2018 of the Court of Appeals
in CA-G.R. CR-HC No. 09296 is hereby REVERSED and SET ASIDE. Accordingly, accused-appellant Jerry Sapla y Guerrero a.k.a.
Eric Salibad y Mallari is ACQUITTED of the crime charged on the ground of reasonable doubt, and is ORDERED IMMEDIATELY
RELEASED from detention unless he is being lawfully held for another cause. Let an entry of final judgment be issued
immediately.

Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for immediate
implementation. The said Director is ORDERED to REPORT to this Court within five (5) days from receipt of this Decision the
action he has taken.

SO ORDERED.
-De Lima vs Guerrero G.R. No. 229781 October 10, 2017
G.R. No. 229781
SENATOR LEILA M. DE LIMA, Petitioner
vs.
HON. JUANITA GUERRERO, in her capacity as Presiding Judge, Regional Trial Court of Muntinlupa City, Branch 204,
PEOPLE OF THE PHILIPPINES, P/DIR. GEN. RONALD M. DELA ROSA, in his capacity as Chief of the Philippine National
Police, PSUPT. PHILIP GIL M. PHILIPPS, in his capacity as Director, Headquarters Support Service, SUPT. ARNEL
JAMANDRON APUD, in his capacity as Chief, PNP Custodial Service Unit, and ALL PERSONS ACTING UNDER THEIR
CONTROL, SUPERVISION, INSTRUCTION OR DIRECTION IN RELATION TO THE ORDERS THAT MAY BE ISSUED BY THE
COURT, Respondents
DECISION
VELASCO, JR., J.:
For consideration is the Petition for Certiorari and Prohibition with Application for a Writ of Preliminary Injunction, and Urgent
Prayer for Temporary Restraining Order and Status Quo Ante Order1 under Rule 65 of the Rules of Court filed by petitioner
Senator Leila De Lima. In it, petitioner assails the following orders and warrant issued by respondent judge Hon. Juanita Guerrero
of the Regional Trial Court (RTC) of Muntinlupa City, Branch 204, in Criminal Case No. 17-165, entitled "People vs. Leila De Lima,
et al.:" (1) the Order dated February 23, 2017 finding probable cause for the issuance of warrant of arrest against petitioner De
Lima; (2) the Warrant of Arrest against De Lima also dated February 23, 2017; (3) the Order dated February 24, 2017 committing
the petitioner to the custody of the PNP Custodial Center; and finally, (4) the supposed omission of the respondent judge to act on
petitioner's Motion to Quash, through which she questioned the jurisdiction of the RTC.2
Antecedents
The facts are undisputed. The Senate and the House of Representatives conducted several inquiries on the proliferation of
dangerous drugs syndicated at the New Bilibid Prison (NBP), inviting inmates who executed affidavits in support of their
testimonies.3 These legislative inquiries led to the filing of the following complaints with the Department of Justice:
a) NPS No. XVI-INV-16J-00313, entitled "Volunteers against Crime and Corruption (VACC), represented by Dante Jimenez
vs. Senator Leila M. De Lima, et al.;"
b) NPS No. XVI-INV-16J-00315, entitled "Reynaldo Esmeralda and Ruel Lasala vs. Senator Leila De Lima, et al.;"
c) NPS No. XVI-INV-16K-00331, entitled "Jaybee Nifio Sebastian, represented by his wife Roxanne Sebastian, vs. Senator
Leila M De Lima, et al.;" and
d) NPS No. XVI-INV-16K-00336, entitled "National Bureau of Investigation (NBI) vs. Senator Leila M. De Lima, et al. "4
Pursuant to DOJ Department Order No. 790, the four cases were consolidated and the DOJ Panel of Prosecutors (DOJ
Panel),5 headed by Senior Assistant State Prosecutor Peter Ong, was directed to conduct the requisite preliminary investigation. 6
The DOJ Panel conducted a preliminary hearing on December 2, 2016,7 wherein the petitioner, through her counsel, filed
an Omnibus Motion to Immediately Endorse the Cases to the Office of the Ombudsman and for the Inhibition of the Panel of
Prosecutors and the Secretary of Justice ("Omnibus Motion").8 In the main, the petitioner argued that the Office of the Ombudsman
has the exclusive authority and jurisdiction to hear the four complaints against her. Further, alleging evident partiality on the part
of the DOJ Panel, the petitioner contended that the DOJ prosecutors should inhibit themselves and refer the complaints to the
Office of the Ombudsman.
A hearing on the Omnibus Motion was conducted on December 9, 2016,9 wherein the complainants, YACC, Reynaldo Esmeralda
(Esmeralda) and Ruel Lasala (Lasala), filed a Joint Comment/Opposition to the Omnibus Motion. 10
On December 12, 2016, petitioner, in turn, interposed a Reply to the Joint Comment/Opposition filed by complainants VACC,
Esmeralda and Lasala. In addition, petitioner submitted a Manifestation with Motion to First Resolve Pending Incident and to Defer
Further Proceedings. 11
During the hearing conducted on December 21, 2016, petitioner manifested that she has decided not to submit her counter-
affidavit citing the pendency of her two motions.12 The DOJ Panel, however, ruled that it will not entertain belatedly filed counter-
affidavits, and declared all pending incidents and the cases as submitted for resolution. Petitioner moved for but was denied
reconsideration by the DOJ Panel.13
On January 13, 2017, petitioner filed before the Court of Appeals a Petition for Prohibition and Certiorari14assailing the
jurisdiction of the DOJ Panel over the complaints against her. The petitions, docketed as CA-G.R. No. 149097 and CA-G.R. No. SP
No. 149385, are currently pending with the Special 6th Division of the appellate court.15 Meanwhile, in the absence of a
restraining order issued by the Court of Appeals, the DOJ Panel proceeded with the conduct of the preliminary
investigation16 and, in its Joint Resolution dated February 14, 2017,17 recommended the filing of Informations against petitioner
De Lima. Accordingly, on February 17, 2017, three Informations were filed against petitioner De Lima and several co-accused
before the RTC ofMuntinlupa City. One of the Infonnations was docketed as Criminal Case No. 17-16518 and raffled off to Branch
204, presided by respondent judge. This Information charging petitioner for violation of Section 5 in relation to Section (jj),
Section 26(b), and Section 28 of Republic Act No. (RA) 9165, contained the following averments:
That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and within the jurisdiction of
this Honorable Court, accused Leila M. De Lima, being then the Secretary of the Department of Justice, and accused Rafael Marcos
Z. Rages, being then the Officer-in-Charge of the Bureau of Corrections, by taking advantage of their public office, conspiring and
confederating with accused Ronnie P. Dayan, being then an employee of the Department of Justice detailed to De Lima, all of them
having moral ascendancy or influence over inmates in the New Bilibid Prison, did then and there commit illegal drug trading, in
the following manner: De Lima and Ragos, with the use of their power, position, and authority, demand, solicit and extort money
from the high profile inmates in the New Bilibid Prison to support the senatorial bid of De Lima in the May 2016 election; by
reason of which, the inmates, not being lawfully authorized by law and through the use of mobile phones and other electronic
devices, did then and there willfully and unlawfully trade and traffic dangerous drugs, and thereafter give and deliver to De Lima,
through Ragos and Dayan, the proceeds of illegal drug trading amounting to Five Million (₱5,000,000.00) Pesos on 24 November
2012, Five Million (₱5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (₱100,000.00) Pesos
weekly "tara" each from the high profile inmates in the New Bilibid Prison.19
On February 20, 2017, petitioner filed a Motion to Quash,20mainly raising the following: the RTC lacks jurisdiction over the offense
charged against petitioner; the DOJ Panel lacks authority to file the Information; the Information charges more than one offense;
the allegations and the recitals of facts do not allege the corpus delicti of the charge; the Information is based on testimonies of
witnesses who are not qualified to be discharged as state witnesses; and the testimonies of these witnesses are hearsay. 21
On February 23, 2017, respondent judge issued the presently assailed Order 22finding probable cause for the issuance of warrants
of arrest against De Lima and her co-accused. The Order stated, viz.:
After a careful evaluation of the herein Information and all the evidence presented during the preliminary investigation
conducted in this case by the Department of Justice, Manila, the Court finds sufficient probable cause for the issuance of Warrants
of Arrest against all the accused LEILA M. DE LIMA, RAFAEL MARCOS Z. RAGOS and RONNIE P ALISOC DAYAN.
WHEREFORE, let Warrants of Arrest be issued against the abovementioned accused.
SO ORDERED.23
Accordingly, the questioned Warrant of Arrest dated February 23, 2017 ,24 which contained no recommendation for bail, was
issued against petitioner.
On February 24, 2017, the PNP Investigation and Detection Group served the Warrant of Arrest on petitioner and the respondent
judge issued the assailed February 24, 2017 Order,25 committing petitioner to the custody of the PNP Custodial Center.
On February 27, 2017, petitioner repaired to this court via the present petition, praying for the following reliefs:
a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017, the Warrant of Arrest dated the
same date, and the Order dated 24 February 2017 of the Regional Trial Court - Branch 204, Muntinlupa City, in Criminal Case No.
17-165 entitled People of the Philippines versus Leila M De Lima, et al.;
b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further proceedings until and
unless the Motion to Quash is resolved with finality;
c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and a writ of preliminary
injunction to the proceedings; and
d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the Order and Warrant of Arrest,
both dated February 23, 201 7, thereby recalling both processes and restoring petitioner to her liberty and freedom. 26
On March 9, 2017, the Office of the Solicitor General (OSG), on behalf of the respondents, interposed its Comment to the
petition.27 The OSG argued that the petition should be dismissed as De Lima failed to show that she has no other plain, speedy,
and adequate remedy. Further, the OSG posited that the petitioner did not observe the hierarchy of courts and violated the rule
against forum shopping. On substantive grounds, the OSG asserted inter alia that the RTC has jurisdiction over the offense
charged against the petitioner, that the respondent judge observed the constitutional and procedural rules, and so did not
commit grave abuse of discretion, in the issuance of the assailed orders and warrant.28
On petitioner's motion, the Court directed the holding of oral arguments on the significant issues raised. The Court then heard the
parties in oral arguments on March 14, 21, and 28, 2017.29
In the meantime, the OSG filed a Manifestation dated March 13, 2017,30 claiming that petitioner falsified the jurats appearing in
the: (1) Verification and Certification against Forum Shopping page of her petition; and (2) Affidavit of Merit in support of her
prayer for injunctive relief. The OSG alleged that while the advertedjurats appeared to be notarized by a certain Atty. Maria Cecille
C. Tresvalles-Cabalo on February 24, 2017, the guest logbook31 in the PNP Custodial Center Unit in Camp Crame for February 24,
2017 does not bear the name of Atty. Tresvalles-Cabalo. Thus, so the OSG maintained, petitioner De Lima did not actually appear
and swear before the notary public on such date in Quezon City, contrary to the allegations in the jurats. For the OSG, the petition
should therefore be dismissed outright for the falsity committed by petitioner De Lima.
In compliance with an Order of this Court, petitioner filed the Affidavit of Atty. Maria Cecille C. Tresvalles-Cabalo dated March 20,
201732 to shed light on the allegations of falsity in petitioner'sjurats.
The parties simultaneously filed their respective Memoranda on April 17, 2017.33
The Issues
From the pleadings and as delineated in this Court's Advisory dated March 10, 201734 and discussed by the parties during the
oral arguments, the issues for resolution by this Court are:
Procedural Issues:
A Whether or not petitioner is excused from compliance with the doctrine on hierarchy of courts considering that the petition
should first be filed with the Court of Appeals.
B. Whether or not the pendency of the Motion to Quash the Information before the trial court renders the instant petition
premature.
C. Whether or not petitioner, in filing the present petition, violated the rule against forum shopping given the pendency of the
Motion to Quash the Information before the Regional Trial Court of Muntinlupa City in Criminal Case No. 17-165 and the Petition
for Certiorari filed before the Court of Appeals in C.A. G.R. SP No. 149097, assailing the preliminary investigation conducted by the
DOJ Panel.
Substantive Issues:
A. Whether the Regional Trial Court or the Sandiganbayan has the jurisdiction over the violation of Republic Act No. 9165 averred
in the assailed Information.
B. Whether or not the respondent gravely abused her discretion in finding probable cause to issue the Warrant of Arrest against
petitioner.
C. Whether or not petitioner is entitled to a Temporary Restraining Order and/or Status Quo Ante Order in the interim until the
instant petition is resolved or until the trial court rules on the Motion to Quash.
OUR RULING
Before proceeding to a discussion on the outlined issues, We shall first confront the issue of the alleged falsification committed by
petitioner in the jurats of her Verification and Certification against Forum Shopping and Affidavit of Merit in support of her
prayer for injunctive relief.
In her Affidavit, Atty. Tresvalles-Cabalo disproves the OSG's allegation that she did not notarize the petitioner's Verification and
Certification against Forum Shopping and Affidavit of Merit in this wise:
4. On February 24, 2017 at or around nine in the morning (9:00 AM), I went to PNP, CIDG, Camp Crame, Quezon City to notarize
the Petition as discussed the previous night.
5. I met Senator De Lima when she was brought to the CIDG at Camp Crame and I was informed that the Petition was already
signed and ready for notarization.
6. I was then provided the Petition by her staff. I examined the signature of Senator De Lima and confirmed that it was signed by
her. I have known the signature of the senator given our personal relationship. Nonetheless, I still requested from her staff a
photocopy of any of her government-issued valid Identification Cards (ID) bearing her signature. A photocopy of her passport
was presented to me. I compared the signatures on the Petition and the Passport and I was able to verify that the Petition was in
fact signed by her. Afterwards, I attached the photocopy of her Passport to the Petition which I appended to my Notarial
Report/Record.
7. Since I already know that Sen. De Lima caused the preparation of the Petition and that it was her who signed the same, I
stamped and signed the same.
8. To confirm with Senator De Lima that I have already notarized the Petition, I sought entry to the detention facility at or around
three in the afternoon (3:00 PM). x x x
xxxx
11. Since I was never cleared after hours of waiting, I was not able to talk again to Senator De Lima to confirm the notarization of
the Petition. I then decided to leave Camp Crame.35
At first glance, it is curious that Atty. Tresvalles-Cabalo who claims to have "stamped and signed the [Verification and
Certification and Affidavit of Merit]" inside Camp Crame, presumably in De Lima's presence, still found it necessary to, hours
later, "confirm with Senator De Lima that [she had] already notarized the Petition." Nonetheless, assuming the veracity of the
allegations narrated in the Affidavit, it is immediately clear that petitioner De Lima did not sign the Verification and Certification
against Forum Shopping and Affidavit of Merit in front of the notary public. This is contrary to the jurats (i.e., the certifications of
the notary public at the end of the instruments) signed by Atty. Tresvalles-Cabalo that the documents were "SUBSCRIBED AND
SWORN to before me."
Such clear breach of notarial protocol is highly censurable36 as Section 6, Rule II of the 2004 Rules on Notarial Practice requires
the affiant, petitioner De Lima in this case, to sign the instrument or document in the presence of the notary, viz.:
SECTION 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:
(a) appears in person before the notary public and presents an instrument or document;
(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined
by these Rules;
(c) signs the instrument or document in the presence of the notary; and
(d) takes an oath or affirmation before the notary public as to such instrument or document.(Emphasis and underscoring
supplied.)
While there is jurisprudence to the effect that "an irregular notarization merely reduces the evidentiary value of a document to
that of a private document, which requires /roof of its due execution and authenticity to be admissible as evidence,"37 the same
cannot be considered controlling in determining compliance with the requirements of Sections 1 and 2, Rule 65 of the Rules of
Court. Both Sections 1 and 2 of Rule 6538 require that the petitions for certiorari and prohibition must be verified and
accompanied by a "sworn certificate of non-forum shopping."
In this regard, Section 4, Rule 7 of the Rules of Civil Procedure states that "[a] pleading is verified by an affidavit that the affiant
has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic
records." "A pleading required to be verified which x x x lacks a proper verification, shall be treated as an unsigned pleading."
Meanwhile, Section 5, Rule 7 of the Rules of Civil Procedure provides that "[t]he plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues
in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed." "Failure to comply with the
foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause
for the dismissal of the case without prejudice, unless otherwise provided x x x."
In this case, when petitioner De Lima failed to sign the Verification and Certification against Forum Shopping in the presence of
the notary, she has likewise failed to properly swear under oath the contents thereof, thereby rendering false and null
the jurat and invalidating the Verification and Certification against Forum Shopping. The significance of a proper jurat and the
effect of its invalidity was elucidated in William Go Que Construction v. Court of Appeals,39where this Court held that:
In .this case, it is undisputed that the Verification/Certification against Forum Shopping attached to the petition for certiorari in
CA-G.R. SP No. 109427 was not accompanied with a valid affidavit/properly certified under oath. This was because
the jurat thereof was defective in that it did not indicate the pertinent details regarding the affiants' (i.e., private respondents)
competent evidence of identities.
Under Section 6, Rule II of AM. No. 02-8-13-SC 63 dated July 6, 2004, entitled the "2004 Rules on Notarial Practice" (2004 Rules
on Notarial Practice), ajurat refers to an act in which an individual on a single occasion:
xxxx
In Fernandez v. Villegas (Fernandez), the Court pronounced that noncompliance with the verification requirement or a defect
therein "does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the
pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the
ends of justice may be served thereby." "Verification is deemed substantially complied with when one who has ample knowledge
to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition
have been made in good faith or are true and correct." Here, there was no substantial compliance with the verification
requirement as it cannot be ascertained that any of the private respondents actually swore to the truth of the allegations in the
petition for certiorari in CA-G.R. SP No. 109427 given the lack of competent evidence of any of their identities. Because of this, the
fact that even one of the private respondents swore that the allegations in the pleading are true and correct of his knowledge and
belief is shrouded in doubt.
For the same reason, neither was there substantial compliance with the certification against forum shopping requirement.
In Fernandez, the Court explained that "non-compliance therewith or a defect therein, unlike in verification, is generally not
curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of 'substantial
compliance' or presence of 'special circumstances or compelling reasons."' Here, the CA did not mention - nor does there exist -
any perceivable special circumstance or compelling reason which justifies the rules' relaxation. At all events, it is uncertain if any
of the private respondents certified under oath that no similar action has been filed or is pending in another forum.
xxxx
Case law states that "[v]erification is required to secure an assurance that the allegations in the petition have been made in good
faith or are true and correct, and not merely speculative." On the other hand, "[t]he certification against forum shopping is
required based on the principle that a party-litigant should not be allowed to pursue simultaneous remedies in different fora."
The important purposes behind these requirements cannot be simply brushed aside absent any sustainable explanation justifying
their relaxation. In this case, proper justification is especially called for in light of the serious allegations of forgery as to the
signatures of the remaining private respondents, i.e., Lominiqui and Andales. Thus, by simply treating the insufficient
submissions before it as compliance with its Resolution dated August 13, 2009 requiring anew the submission of a proper
verification/certification against forum shopping, the CA patently and grossly ignored settled procedural rules and, hence,
gravely abused its discretion. All things considered, the proper course of action was for it to dismiss the petition.40 (Emphasis and
underscoring supplied.)
Without the presence of the notary upon the signing of the Verification and Certification against Forum Shopping, there is no
assurance that the petitioner swore under oath that the allegations in the petition have been made in good faith or are true and
correct, and not merely speculative. It must be noted that verification is not an empty ritual or a meaningless formality. Its import
must never be sacrificed in the name of mere expedience or sheer caprice,41 as what apparently happened in the present case.
Similarly, the absence of the notary public when petitioner allegedly affixed her signature also negates a proper attestation that
forum shopping has not been committed by the filing of the petition. Thus, the petition is, for all intents and purposes, an
unsigned pleading that does not deserve the cognizance of this Court.42 In Salum bides, Jr. v. Office of the Ombudsman,43the Court
held thus:
The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against
forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the
discretion of the court to allow the deficiency to be remedied, while the failure to certifv against forum shopping shall be cause for
dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading. (Emphasis
and italicization from the original.)
Notably, petitioner has not proffered any reason to justify her failure to sign the Verification and Certification Against Forum
Shopping in the presence of the notary. There is, therefore, no justification to relax the rules and excuse the petitioner's non-
compliance therewith. This Court had reminded parties seeking the ultimate relief of certiorari to observe the rules, since
nonobservance thereof cannot be brushed aside as a "mere technicality."44 Procedural rules are not to be belittled or simply
disregarded, for these prescribed procedures ensure an orderly and speedy administration of justice.45 Thus, as in William Go Que
Construction, the proper course of action is to dismiss outright the present petition.
Even if We set aside this procedural infirmity, the petition just the same merits denial on several other grounds.
PETITIONER DISREGARDED THE HIERARCHY OF COURTS
Trifling with the rule on hierarchy of courts is looked upon with disfavor by this Court.46 It will not entertain direct resort to it
when relief can be obtained in the lower courts.47 The Court has repeatedly emphasized that the rule on hierarchy of courts is an
important component of the orderly administration of justice and not imposed merely for whimsical and arbitrary
reasons.48 In The Diocese of Bacolod v. Commission on Elections,49the Court explained the reason for the doctrine thusly:
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 for 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.
xxxx
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. 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.
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 confusion 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.50 (Emphasis supplied.)
Nonetheless, there are recognized exceptions to this rule and direct resort to this Court were allowed in some instances. These
exceptions were summarized in a case of recent vintage, Aala v. Uy, as follows:
In a fairly recent case, we summarized other well-defined exceptions to the doctrine on hierarchy of courts. Immediate resort to
this Court may be allowed when any of the following grounds are present: (1) when genuine issues of constitutionality are raised
that must be addressed immediately; (2) when the case involves transcendental importance; (3) when the case is novel; (4) when
the constitutional issues raised are better decided by this Court; (5) when time is of the essence; (6) when the subject of review
involves acts of a constitutional organ; (7) when there is no other plain, speedy, adequate remedy in the ordinary course of law;
(8) when the petition includes questions that may affect public welfare, public policy, or demanded by the broader interest of
justice; (9) when the order complained of was a patent nullity; and (10) when the appeal was considered as an inappropriate
remedy.51
Unfortunately, none of these exceptions were sufficiently established in the present petition so as to convince this court to brush
aside the rules on the hierarchy of courts.
Petitioner's allegation that her case has sparked national and international interest is obviously not covered by the exceptions to
the rules on hierarchy of courts. The notoriety of a case, without more, is not and will not be a reason for this Court's decisions.
Neither will this Court be swayed to relax its rules on the bare fact that the petitioner belongs to the minority party in the present
administration. A primary hallmark of an independent judiciary is its political neutrality. This Court is thus loath to perceive and
consider the issues before it through the warped prisms of political partisanships.
That the petitioner is a senator of the republic does not also merit a special treatment of her case. The right to equal treatment
before the law accorded to every Filipino also forbids the elevation of petitioner's cause on account of her position and status in
the government.
Further, contrary to her position, the matter presented before the Court is not of first impression. Petitioner is not the first public
official accused of violating RA 9165 nor is she the first defendant to question the finding of probable cause for her arrest. In fact,
stripped of all political complexions, the controversy involves run-of-the mill matters that could have been resolved with ease by
the lower court had it been given a chance to do so in the first place.
In like manner, petitioner's argument that the rule on the hierarchy of court should be disregarded as her case involves pure
questions of law does not obtain. One of the grounds upon which petitioner anchors her case is that the respondent judge erred
and committed grave abuse of discretion in finding probable cause to issue her arrest. By itself, this ground removes the case
from the ambit of cases involving pure questions of law. It is established that the issue of whether or not probable cause exists for
the issuance of warrants for the arrest of the accused is a question of fact, determinable as it is from a review of the allegations in
the Information, the Resolution of the Investigating Prosecutor, including other documents and/ or evidence appended to the
Information.52 This matter, therefore, should have first been brought before the appellate court, which is in the better position to
review and determine factual matters.
Yet, petitioner harps on the supposed judicial efficiency and economy of abandoning the rule on the hierarchy of courts in the
present case. Indeed, the Court has considered the practical aspects of the administration of justice in deciding to apply the
exceptions rather than the rule. However, it is all the more for these practical considerations that the Court must insist on the
application of the rule and not the exceptions in this case. As petitioner herself alleges, with the President having declared the
fight against illegal drugs and corruption as central to his platform of government, there will be a spike of cases brought before
the courts involving drugs and public officers.53 As it now stands, there are 232,557 criminal cases involving drugs, and around
260,796 criminal cases involving other offenses pending before the R TCs.54 This Court cannot thus allow a precedent allowing
public officers assailing the finding of probable cause for the issuance of arrest warrants to be brought directly to this Court,
bypassing the appellate court, without any compelling reason.
THE PRESENT PETITION IS PREMATURE
The prematurity of the present petition is at once betrayed in the reliefs sought by petitioner's Prayer, which to restate for added
emphasis, provides:
WHEREFORE, premises considered, and in the interest of substantial justice and fair play, Petitioner respectfully prays the
Honorable Court that judgment be rendered:
a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017, the Warrant of Arrest dated the
same date, and the Order dated 24 February 2017 of the Regional Trial CourtBranch 204, Muntinlupa City, in Criminal Case No.
17-165 entitled People of the Philippines versus Leila M De Lima et al.;
b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further proceedings until and
unless the Motion to Quash is resolved with finality;
c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and a writ of preliminary
injunction to the proceedings; and
d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the Order and Warrant of Arrest,
both dated February 23, 201 7, thereby recalling both processes and restoring petitioner to her liberty and freedom.55 (Emphasis
supplied)
Under paragraph (a), petitioner asks for a writ of certiorari annulling the Order dated February 23, 2017 finding probable cause,
the warrant of arrest and the Order dated February 24, 2017 committing petitioner to the custody of the PNP Custodial Center.
Clearly petitioner seeks the recall of said orders to effectuate her release from detention and restore her liberty. She did not ask
for the dismissal of the subject criminal case.
More importantly, her request for the issuance of a writ of prohibition under paragraph (b) of the prayer "until and unless the
Motion to Quash is resolved with finality," is an unmistakable admission that the RTC has yet to rule on her Motion to Quash and
the existence of the RTC's authority to rule on the said motion. This admission against interest binds the petitioner; an admission
against interest being the best evidence that affords the greatest certainty of the facts in dispute. 56 It is based on the presumption
that "no man would declare anything against himself unless such declaration is true. "57 It can be presumed then that the
declaration corresponds with the truth, and it is her fault if it does not.58
Moreover, petitioner under paragraphs (c) and (d) prayed for a TRO and writ of preliminary injunction and a status quo ante
order which easily reveal her real motive in filing the instant petition-to restore to "petitioner her liberty and freedom."
Nowhere in the prayer did petitioner explicitly ask for the dismissal of Criminal Case No. 17-165. What is clear is she merely
asked the respondent judge to rule on her Motion to Quash before issuing the warrant of arrest.
In view of the foregoing, there is no other course of action to take than to dismiss the petition on the ground of prematurity and
allow respondent Judge to rule on the Motion to Quash according to the desire of petitioner.
This Court, in Solid Builders Inc. v. China Banking Corp., explained why a party should not pre-empt the action of a trial court:
Even Article 1229 of the Civil Code, which SBI and MFII invoke, works against them. Under that provision, the equitable reduction
of the penalty stipulated by the parties in their contract will be based on a finding by the court that such penalty is iniquitous or
unconscionable. Here, the trial court has not yet made a ruling as to whether the penalty agreed upon by CBC with SBI and MFII is
unconscionable. Such finding will be made by the trial court only after it has heard both parties and weighed their respective
evidence in light of all relevant circumstances. Hence, for SBI and MFII to claim any right or benefit under that provision at this
point is premature.59 (Emphasis supplied)
In State of Investment House, Inc. v. Court of Appeals,60the Court likewise held that a petition for certiorari can be resorted to only
after the court a quo has already and actually rendered its decision. It held, viz.:
We note, however, that the appellate court never actually ruled on whether or not petitioner's right had prescribed. It merely
declared that it was in a position to so rule and thereafter required the parties to submit memoranda. In making such a
declaration, did the CA commit grave abuse of discretion amounting to lack of jurisdiction? It did not.
xxxx
All things considered, this petition is premature. The CA has decided nothing and whatever petitioner's vehement objections may
be (to any eventual ruling on the issue of prescription) should be raised only after such ruling shall have actually been
promulgated.
The situation evidently does not yet call for a recourse to a petition for certiorari under Rule 65. 61(Italicization from the original.
Emphasis supplied.)
An analogous ruling was made by this Court in Diaz v. Nora, where it ruled in this wise:
x x x In the case of the respondent labor arbiter, he has not denied the motion for execution filed by the petitioner. He merely did
not act on the same. Neither had petitioner urged the immediate resolution of his motion for execution by said arbiter. In the case
of the respondent NLRC, it was not even given the opportunity to pass upon the question raised by petitioner as to whether or not
it has jurisdiction over the appeal, so the records of the case can be remanded to the respondent labor arbiter for execution of the
decision.
Obviously, petitioner had a plain, speedy and adequate remedy to seek relief from public respondents but he failed to avail
himself of the same before coming to this Court. To say the least, the petition is premature and must be struck down.62 (Emphasis
supplied.)
The dissents would deny the applicability of the foregoing on the ground that these were not criminal cases that involved a
pending motion to quash. However, it should be obvious from the afore-quoted excerpts that the nature of the cases had nothing
to do with this Court's finding of prematurity in those cases. Instead, what was stressed therein was that the lower courts had not
yet made, nor was not given the opportunity to make, a ruling before the parties came before this forum.
Indeed, the prematurity of the present petition cannot be over-emphasized considering that petitioner is actually asking the
Court to rule on some of the grounds subject of her Motion to Quash. The Court, if it rules positively in favor of petitioner
regarding the grounds of the Motion to Quash, will be preempting the respondent Judge from doing her duty to resolve the said
motion and even prejudge the case. This is clearly outside of the ambit of orderly and expeditious rules of procedure. This,
without a doubt, causes an inevitable delay in the proceedings in the trial court, as the latter abstains from resolving the incidents
until this Court rules with finality on the instant petition.
Without such order, the present petition cannot satisfy the requirements set before this Court can exercise its review powers.
Section 5 (2)(C) of Article VIII of the 1987 Constitution explicitly requires the existence of "final judgments and orders of lower
courts" before the Court can exercise its power to "review, revise, reverse, modify, or affirm on appeal or certiorari" in "all cases
in which the jurisdiction of any lower court is in issue," viz.:
SECTION 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments
and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved. (Emphasis supplied.)
In the palpable absence of a ruling on the Motion to Quash -- which puts the jurisdiction of the lower court in issue -- there is no
controversy for this Court to resolve; there is simply no final judgment or order of the lower court to review, revise, reverse,
modify, or affirm. As per the block letter provision of the Constitution, this Court cannot exercise its jurisdiction in a vacuum nor
issue a definitive ruling on mere suppositions.
Succinctly, the present petition is immediately dismissible for this Court lacks jurisdiction to review a non-existent court action. It
can only act to protect a party from a real and actual ruling by a lower tribunal. Surely, it is not for this Court to negate "uncertain
contingent future event that may not occur as anticipated, or indeed may not occur at all," as the lower court's feared denial of the
subject Motion to Quash.63
The established rule is that courts of justice will take cognizance only of controversies "wherein actual and not merely
hypothetical issues are involved."64 The reason underlying the rule is "to prevent the courts through avoidance of premature
adjudication from entangling themselves in abstract disagreements, and for us to be satisfied that the case does not present a
hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." 65
Even granting arguendo that what is invoked is the original jurisdiction of this Court under Section 5 (1) of Article VIII, the
petition nonetheless falls short of the Constitutional requirements and of Rule 65 of the Rules of Court. In the absence of a final
judgment, order, or ruling on the Motion to Quash challenging the jurisdiction of the lower court, there is no occasion for this
Court to issue the extraordinary writ of certiorari. Without a judgment or ruling, there is nothing for this Court to declare as
having been issued without jurisdiction or in grave abuse of discretion.
Furthermore, it is a basic requirement under Rule 65 that there be "[no] other plain, speedy and adequate remedy found in
law."66 Thus, the failure to exhaust all other remedies, as will be later discussed, before a premature resort to this Court is fatal to
the petitioner's cause of action.
Petitioner even failed to move for the reconsideration of the February 23 and 24, 2017 Orders she is currently assailing in this
Petition. As this Court held in Estrada v. Office of the Ombudsman, "[a] motion for reconsideration allows the public respondent an
opportunity to correct its factual and legal errors x x x [it] is mandatory before the filing of a petition for certiorari."67The reasons
proffered by petitioner fail to justify her present premature recourse.
Various policies and rules have been issued to curb the tendencies of litigants to disregard, nay violate, the rule enunciated in
Section 5 of Article VIII of the Constitution to allow the Court to devote its time and attention to matters within its jurisdiction
and prevent the overcrowding of its docket. There is no reason to consider the proceedings at bar as an exception.
PETITIONER VIOLATED THE RULE AGAINST FORUM SHOPPING
It is settled that forum shopping exists when a party repetitively avails himself of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by, some other court.
It is considered an act of malpractice as it trifles with the courts and abuses their processes. 68 Thus, as elucidated in Luzon Iron
Development Group Corporation v. Bridgestone Mining and Development Corporation, 69forum shopping warrants the immediate
dismissal of the suits filed:
Forum shopping is the act of litigants who repetitively avail themselves of multiple judicial remedies in different fora,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances; and raising substantially similar issues either pending in or already resolved adversely by some other court; or for
the purpose of increasing their chances of obtaining a favorable decision, if not in one court, then in another. The rationale
against forum-shopping is that a party should not be allowed to pursue simultaneous remedies in two different courts, for to do
so would constitute abuse of court processes which tends to degrade the administration of justice, wreaks havoc upon orderly
judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts.
xxxx
What is essential in determining the existence of forum-shopping is the vexation caused the courts and litigants by a party who
asks different courts and/or administrative agencies to rule on similar or related causes and/or grant the same or substantially
similar reliefs, in the process creating the possibility of conflicting decisions being rendered upon the same issues.
xxxx
We emphasize that the grave evil sought to be avoided by the rule against forum-shopping is the rendition by two competent
tribunals of two separate and contradictory decisions. To avoid any confusion, this Court adheres strictly to the rules against
forum shopping, and any violation of these rules results in the dismissal of a case. The acts committed and described herein can
possibly constitute direct contempt.70
This policy echoes the last sentence of Section 5, Rule 7 of the Rules of Court, which states that "[i]f the acts of the party or his
counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice
and shall constitute direct contempt as well as a cause for administrative sanctions."
The test to determine the existence of forum shopping is whether the elements of litis pendentia, or whether a final judgment in
one case amounts to res judicata in the other. Forum shopping therefore exists when the following elements are present: (a)
identity of parties, or at least such parties representing the same interests in both actions; (b) identity of rights asserted and
reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that any
judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under
consideration.71
Anent the first requisite, there is an identity of parties when the parties in both actions are the same, or there is privity between
them, or they are successors-in-interest by title subsequent to the commencement of the action litigating for the same thing and
under the same title and in the same capacity.72
Meanwhile, the second and third requisites obtain where the same evidence necessary to sustain the second cause of action is
sufficient to authorize a recovery in the first, even if the forms or the nature of the two (2) actions are different from each other. If
the same facts or evidence would sustain both, the two (2) actions are considered the same within the rule that the judgment in
the former is a bar to the subsequent action; otherwise, it is not.73
All these requisites are present in this case.
The presence of the first requisite is at once apparent. The petitioner is an accused in the criminal case below, while the
respondents in this case, all represented by the Solicitor General, have substantial identity with the complainant in the criminal
case still pending before the trial court.
As for the second requisite, even a cursory reading of the petition and the Motion to Quash will reveal that the arguments and the
reliefs prayed for are essentially the same. In both, petitioner advances the RTC's supposed lack of jurisdiction over the offense,
the alleged multiplicity of offenses included in the Information; the purported lack of the corpus delicti of the charge, and,
basically, the non-existence of probable cause to indict her. And, removed of all non-essentials, she essentially prays for the same
thing in both the present petition and the Motion to Quash: the nullification of the Information and her restoration to liberty and
freedom. Thus, our ruling in Jent v. Tullet Prebon (Philippines), Inc. 74 does not apply in the present case as the petition at bar and
the motion to quash pending before the court a quo involve similar if not the same reliefs. What is more, while Justice Caguioa
highlights our pronouncement in Jent excepting an "appeal or special civil action for certiorari" from the rule against the violation
of forum shopping, the good justice overlooks that the phrase had been used with respect to forum shopping committed
through successive actions by a "party, against whom an adverse judgment or order has [already] been rendered in one
forum."75 The exception with respect to an "appeal or special civil action for certiorari" does not apply where the forum shopping
is committed by simultaneous actions where no judgment or order has yet been rendered by either forum. To restate for
emphasis, the RTC has yet to rule on the Motion to Quash. Thus, the present petition and the motion to quash before the R TC
are simultaneous actions that do not exempt petitions for certiorari from the rule against forum shopping.
With the presence of the first two requisites, the third one necessarily obtains in the present case. Should we grant the petition
and declare the RTC without jurisdiction over the offense, the RTC is bound to grant De Lima's Motion to Quash in deference to
this Court's authority. In the alternative, if the trial court rules on the Motion to Quash in the interim, the instant petition will be
rendered moot and academic.
In situations like the factual milieu of this instant petition, while nobody can restrain a party to a case before the trial court to
institute a petition for certiorari under Rule 65 of the Rules of Court, still such petition must be rejected outright because
petitions that cover simultaneous actions are anathema to the orderly and expeditious processing and adjudication of cases.
On the ground of forum shopping alone, the petition merits immediate dismissal.
THE REGIONAL TRIAL COURT HAS JURISDICTION
Even discounting the petitioner's procedural lapses, this Court is still wont to deny the instant petition on substantive grounds.
Petitioner argues that, based on the allegations of the Information in Criminal Case No. 17-165, the Sandiganbayan has the
jurisdiction to try and hear the case against her. She posits that the Information charges her not with violation of RA 9165 but
with Direct Bribery-a felony within the exclusive jurisdiction of the Sandiganbayan given her rank as the former Secretary of
Justice with Salary Grade 31. For the petitioner, even assuming that the crime described in the Information is a violation of RA
9165, the Sandiganbayan still has the exclusive jurisdiction to try the case considering that the acts described in the Information
were intimately related to her position as the Secretary of Justice. Some justices of this Court would even adopt the petitioner's
view, declaring that the Information charged against the petitioner is Direct Bribery.
The respondents, on the other hand, maintain that the R TC has exclusive jurisdiction to try violations of RA 9165, including the
acts described in the Information against the petitioner. The Sandiganbayan, so the respondents contend, was specifically created
as an anti-graft court. It was never conferred with the power to try drug-related cases even those committed by public officials. In
fact, respondents point out that the history of the laws enabling and governing the Sandiganbayan will reveal that its jurisdiction
was streamlined to address specific cases of graft and corruption, plunder, and acquisition of ill-gotten wealth.
Before discussing the issue on jurisdiction over the subject matter, it is necessary to clarify the crime with which the petitioner is
being charged. For ease of reference, the Information filed with the R TC is restated below:
PEOPLE OF THE PHILIPPINES,
Plaintiff,
Versus Criminal Case No. 17-165
LEILA M. DE LIMA
(NPS No. XVI-INV-16J-00315 and NPS No. XVl-INV-16K-00336)
For: Violation of the Comprehensive Dangerous Drugs Act of
(66 Laguna de Bay corner Subic Bay Drive, South Bay Village,
2002, Section 5, in relation to Section 3(jj), Section 26 (b), and
Paraiiaque City and/or Room 502, GSIS Building, Financial Center, Section 28, Republic Act No. 9165 (lllegal Drug Trading)
Roxas Boulevard, Pasay City), RAFAEL MARCOS Z. RAGOS (c/o
National Bureau of Investigation, Taft Avenue, Manila) and
RONNIE P ALISOC DAY AN, (Barangay Galarin, Urbiztondo,
Pangasinan), Accused
x-------------------------------------x
INFORMATION
The undersigned Prosecutors, constituted as a Panel pursuant to Department Orders 706 and 790 dated October 14, 2016 and
November 11, 2016, respectively, accuse LEILA M. DE LIMA, RAFAEL MARCOS Z. RAGOS and RONNIE P ALISOC DAY AN, for
violation of Section 5, in relation to Section 3 (jj), Section 26 (b) and Section 28, Republic Act No. 9165, otherwise known as
the Comprehensive Dangerous Act of 2002, committed as follows:
That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and within the jurisdiction of
this Honorable Court, accused Leila M. De Lima, being then the Secretary of the Department of Justice, and accused Rafael Marcos
Z. Ragos, being then the Officer-in-Charge of the Bureau of Corrections, by taking advantage of their public office, conspiring and
confederating with accused Ronnie P. Dayan, being then the employee of the Department of Justice detailed to De Lima, all of
them having moral ascendancy or influence over inmates in the New Bilibid Prison, did then and there commit illegal drug
trading, in the following manner: De Lima and Ragos, with the use of their power, position, and authority demand, solicit and
extort money from the high profile inmates in the New Bilibid Prison to support the Senatorial bid of De Lima in the May 2016
election; by reason of which, the inmates, not being lawfully authorized by law and through the use of mobile phones and other
electronic devices, did then and there willfully and unlawfully trade and traffic dangerous drugs, and thereafter give and deliver
to De Lima, through Ragos and Dayan, the proceeds of illegal drug trading amounting to Five Million (₱5,000,000.00) Pesos on 24
November 2012, Five Million (₱5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (₱l00,000.00) Pesos
weekly "tara" each from the high profile inmates in the New Bilibid Prison.
CONTRARY TO LAW.76
Notably, the designation, the prefatory statements and the accusatory portions of the Information repeatedly provide that the
petitioner is charged with "Violation of the Comprehensive Dangerous Drugs Act of 2002, Section 5, in relation to Section 3(jj),
Section 26(b), and Section 28, Republic Act No. 9165." From the very designation of the crime in the Information itself, it should
be plain that the crime with which the petitioner is charged is a violation of RA 9165. As this Court clarified in Quimvel v.
People, 77 the designation of the offense in the Information is a critical element required under Section 6, Rule 110 of the Rules of
Court in apprising the accused of the offense being charged, viz.:
The offense charged can also be elucidated by consulting the designation of the offense as appearing in the Information. The
designation of the offense is a critical element required under Sec. 6, Rule 110 of the Rules of Court for it assists in apprising the
accused of the offense being charged. Its inclusion in the Information is imperative to avoid surprise on the accused and to afford
him of the opportunity to prepare his defense accordingly. Its import is underscored in this case where the preamble states that
the crime charged is of "Acts of Lasciviousness in relation to Section 5(b) of R.A. No.7610." 78(Emphasis supplied.)
Further, a reading of the provisions of RA 9165 under which the petitioner is prosecuted would convey that De Lima is being
charged as a conspirator in the crime of Illegal Drug Trading. The pertinent provisions of RA 9165 read:
SECTION 3. Definitions. - As used in this Act, the following terms shall mean:
xxxx
(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential
chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios, internet,
instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other
consideration in violation of this Act.
xxxx
SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred
thousand pesos (₱500,000.00) to Ten million pesos (₱10,000,000.00) shall be imposed upon any person, who, unless authorized
by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any
dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a
broker in any of such transactions.
xxxx
SECTION 26. Attempt or Conspiracy. - Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the
same penalty prescribed for the commission of the same as provided under this Act:
xxxx
(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled
precursor and essential chemical;
xxxx
SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of the unlawful acts provided
for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of
such unlawful acts are government officials and employees.
While it may be argued that some facts may be taken as constitutive of some elements of Direct Bribery under the Revised Penal
Code (RPC), these facts taken together with the other allegations in the Information portray a much bigger picture, Illegal Drug
Trading. The latter crime, described by the United Nations Office on Drugs and Crime (UNODC) as "a global illicit trade involving
the cultivation, manufacture, distribution and sale of substances,"79 necessarily involves various component crimes, not the least
of which is the bribery and corruption of government officials. An example would be reports of recent vintage regarding billions
of pesos' worth of illegal drugs allowed to enter Philippine ports without the scrutiny of Customs officials. Any money and bribery
that may have changed hands to allow the importation of the confiscated drugs are certainly but trivial contributions in the
furtherance of the transnational illegal drug trading - the offense for which the persons involved should be penalized.
Read as a whole, and not picked apart with each word or phrase construed separately, the Information against De Lima goes
beyond an indictment for Direct Bribery under Article 210 of the RPC.80 As Justice Martires articulately explained, the averments
on solicitation of money in the Information, which may be taken as constitutive of bribery, form "part of the description on how
illegal drug trading took place at the NBP." The averments on how petitioner asked for and received money from the NBP inmates
simply complete the links of conspiracy between her, Ragos, Dayan and the NBP inmates in willfully and unlawfully trading
dangerous drugs through the use of mobile phones and other electronic devices under Section 5, in relation to Section 3(jj),
Section 26(b), and Section 28, of RA 9165.
On this score, that it has not been alleged that petitioner actually participated in the actual trafficking of dangerous drugs and had
simply allowed the NBP inmates to do so is non sequitur given that the allegation of conspiracy makes her liable for the acts of her
co-conspirators. As this Court elucidated, it is not indispensable for a co-conspirator to take a direct part in every act of the crime.
A conspirator need not even know of all the parts which the others have to perform,81 as conspiracy is the common design to
commit a felony; it is not participation in all the details of the execution of the crime. 82 As long as the accused, in one way or
another, helped and cooperated in the consummation of a felony, she is liable as a co-principal.83 As the Information provides, De
Lima's participation and cooperation was instrumental in the trading of dangerous drugs by the NBP inmates. The minute details
of this participation and cooperation are matters of evidence that need not be specified in the Information but presented and
threshed out during trial.
Yet, some justices remain adamant in their position that the Information fails to allege the necessary elements of Illegal Drug
Trading. Justice Carpio, in particular, would cite cases supposedly enumerating the elements necessary for a valid Information for
Illegal Drug Trading. However, it should be noted that the subject of these cases was "Illegal Sale" of dangerous drugs -- a crime
separate and distinct from "Illegal Trading" averred in the Information against De Lima. The elements of "Illegal Sale" will
necessary differ from the elements of Illegal Trading under Section 5, in relation to Section 3(jj), of RA 9165. The definitions of
these two separate acts are reproduced below for easy reference:
SECTION 3. Definitions. - As used in this Act, the following terms shall mean:
xxxx
(ii) Sell. - Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or
any other consideration.
(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential
chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios, internet,
instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other
consideration in violation of this Act.
It is obvious from the foregoing that the crime of illegal trading has been written in strokes much broader than that for illegal
sale. In fact, an illegal sale of drugs may be considered as only one of the possible component acts of illegal trading which may be
committed through two modes: (1) illegal trafficking using electronic devices; or (2) acting as a broker in any transactions
involved in the illegal trafficking of dangerous drugs.
On this score, the crime of "illegal trafficking" embraces various other offenses punishable by RA 9165. Section 3(r) of RA 9165
provides:
(r) Illegal Trafficking. - The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading,
transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and
essential chemical.
In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined as follows:
(a) Administer. - Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by
injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a
dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication.
xxxx
(d) Chemical Diversion. - The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or
procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity
engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment
of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or
mail fraud.
xxxx
(i) Cultivate or Culture. - Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any
plant which is the source of a dangerous drug.
xxxx
(k) Deliver. - Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or
without consideration.
xxxx
(m) Dispense. - Any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of
prescription.
xxxx
(u) Manufacture. - The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor
and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means
of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of
such substances, design or configuration of its form, or labeling or relabeling of its container; except that such terms do not
include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an
incident to his/her administration or dispensation of such drug or substance in the course of his/her professional practice
including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any
other purpose.
xxxx
(kk) Use. - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating,
swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs.
With the complexity of the operations involved in Illegal Trading of drugs, as recognized and defined in RA 9165, it will be quite
myopic and restrictive to require the elements of Illegal Sale-a mere component act-in the prosecution for Illegal Trading.
More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may make it impossible to provide the details of the
elements of Illegal Sale. By "using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-
way radios, internet, instant messengers and chat rooms," the Illegal Trading can be remotely perpetrated away from where the
drugs are actually being sold; away from the subject of the illegal sale. With the proliferation of digital technology coupled with
ride sharing and delivery services, Illegal Trading under RA 9165 can be committed without getting one's hand on the substances
or knowing and meeting the seller or buyer. To require the elements of Illegal Sale (the identities of the buyer, seller, the object
and consideration, in Illegal Trade) would be impractical.
The same may be said of the second mode for committing Illegal Trading, or trading by "acting as a broker" in transactions
involved in Illegal Trafficking. In this instance, the accused may neither have physical possession of the drugs nor meet the buyer
and seller and yet violate RA 9165. As pointed out by Justice Perlas-Bernabe, as early as 1916, jurisprudence has defined a broker
as one who is simply a middleman, negotiating contracts relative to property with which he has no custody, viz.:
A broker is generally defined as one who is engaged, for others, on a commission, negotiating contracts relative to property with
the custody of which he has no concern; the negotiator between other parties, never acting in his own name, but in the name of
those who employed him; he is strictly a middleman and for some purposes the agent of both parties. 84 (Emphasis and
underscoring supplied.)
In some cases, this Court even acknowledged persons as brokers even "where they actually took no part in the negotiations,
never saw the customer."85 For the Court, the primary occupation of a broker is simply bringing "the buyer and the seller
together, even if no sale is eventually made. "86 Hence, in indictments for Illegal Trading, it is illogical to require the elements of
Illegal Sale of drugs, such as the identities of the buyer and the seller, the object and consideration. 87 For the prosecution of Illegal
Trading of drugs to prosper, proof that the accused "act[ed] as a broker" or brought together the buyer and seller of illegal drugs
"using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios, internet, instant
messengers and chat rooms" is sufficient.
The DOJ' s designation of the charge as one for Illegal Drug Trading thus holds sway. After all, the prosecution is vested with a
wide range of discretion-including the discretion of whether, what, and whom to charge.88 The exercise of this discretion depends
on a smorgasboard of factors, which are best appreciated by the prosecutors.89
As such, with the designation of the offense, the recital of facts in the Information, there can be no other conclusion than that
petitioner is being charged not with Direct Bribery but with violation of RA 9165.
Granting without conceding that the information contains averments which constitute the elements of Direct Bribery or that
more than one offence is charged or as ill this case, possibly bribery and violation of RA 9165, still the prosecution has the
authority to amend the information at any time before arraignment. Since petitioner has not yet been arraigned, then the
information subject of Criminal Case No. 17-165 can still be amended pursuant to Section 14, Rule 110 of the Rules of Court
which reads:
SECTION 14. Amendment or Substitution. - A complaint or information may be amended, in form or in substance, without leave of
court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights of the accused.
Now the question that irresistibly demands an answer is whether it is the Sandiganbayan or the RTC that has jurisdiction over the
subject matter of Criminal Case No. 17-165, i.e., violation of RA 9165.
It is basic that jurisdiction over the subject matter in a criminal case is given only by law in the manner and form prescribed by
law.90 It is determined by the statute in force at the time of the commencement of the action. 91 Indeed, Congress has the plenary
power to define, prescribe and apportion the jurisdiction of various courts. It follows then that Congress may also, by law,
provide that a certain class of cases should be exclusively heard and determined by one court. Such would be a special law that is
construed as an exception to the general law on jurisdiction of courts.92
The pertinent special law governing drug-related cases is RA 9165, which updated the rules provided in RA 6425, otherwise
known as the Dangerous Drugs Act of 1972. A plain reading of RA 9165, as of RA 6425, will reveal that jurisdiction over drug-
related cases is exclusively vested with the Regional Trial Court and no other. The designation of the RTC as the court with the
exclusive jurisdiction over drug-related cases is apparent in the following provisions where it was expressly mentioned and
recognized as the only court with the authority to hear drug-related cases:
Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds
Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals. - x x x x
After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing
for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned
or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her
lawful income:
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During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated
and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for
the release of the same.
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Section 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary Submission Program. - x x x
A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person
authorized by the Board with the Regional Trial Court of the province or city where such person is found.
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Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. - If a person
charged with an offense where the imposable penalty is imprisonment of less than six (6) years and one (1) day, and is found by
the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor or the court as the case
may be, shall suspend all further proceedings and transmit copies of the record of the case to the Board.
In the event the Board determines, after medical examination, that public interest requires that such drug dependent be
committed to a center for treatment and rehabilitation, it shall file a petition for his/her commitment with the regional trial court
of the province or city where he/she is being investigated or tried: x x x
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Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each
judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial
region shall be based on the population and the number of cases pending in their respective jurisdiction.
The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act.
Notably, no other trial court was mentioned in RA 9165 as having the authority to take cognizance of drug-related cases. Thus,
in Morales v. Court of Appeals,93this Court categorically named the RTC as the court with jurisdiction over drug related-cases, as
follows:
Applying by analogy the ruling in People v. Simon, People v. De Lara, People v. Santos, and Ordonez v. Vinarao, the imposable
penalty in this case which involves 0.4587 grams of shabu should not exceed prision correccional. We say by analogy because
these cases involved marijuana, not methamphetamine hydrochloride (shabu). In Section 20 of RA. No. 6425, as amended by
Section 17 of RA No. 7659, the maximum quantities of marijuana and methamphetamine hydrochloride for purposes of imposing
the maximum penalties are not the same. For the latter, if the quantity involved is 200 grams or more, the penalty of reclusion
perpetua to death and a fine ranging from ₱500,000 to PIO million shall be imposed. Accordingly, if the quantity involved is below
200 grams, the imposable penalties should be as follows:
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Clearly, the penalty which may be imposed for the offense charged in Criminal Case No. 96-8443 would at most be only prision
correccional duration is from six (6) months and one (1) day to six (6) years. Does it follow then that, as the petitioner insists, the
RTC has no jurisdiction thereon in view of the amendment of Section 32 of B.P. Big. 129 by R.A. No. 7691, which vested upon
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts exclusive original jurisdiction over all
offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine and regardless of other
imposable accessory or other penalties? This Section 32 as thus amended now reads:
xxxx
The exception in the opening sentence is of special significance which we cannot disregard. x xx The aforementioned exception
refers not only to Section 20 of B.P. Blg. 129 providing for the jurisdiction of Regional Trial Courts in criminal cases, but also to
other laws which specifically lodge in Regional Trial Courts exclusive jurisdiction over specific criminal cases, e. g., (a) Article 360
of the Revised Penal Code, as amended by R.A. Nos. 1289 and 4363 on written defamation or libel; (b) Decree on Intellectual
Property (P. D. No. 49, as amended), which vests upon Courts of First Instance exclusive jurisdiction over the cases therein
mentioned regardless of the imposable penalty; and (c) more appropriately for the case at bar, Section 39 of RA No. 6425, as
amended by P.D. No. 44, which vests on Courts of First Instance, Circuit Criminal Courts, and the Juvenile and Domestic Relations
Courts concurrent exclusive original jurisdiction over all cases involving violations of said Act.
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That Congress indeed did not intend to repeal these special laws vesting exclusive jurisdiction in the Regional Trial Courts over
certain cases is clearly evident from the exception provided for in the opening sentence of Section 32 of B.P. Blg. 129, as amended
by RA No. 7691. These special laws are not, therefore, covered by the repealing clause (Section 6) of RA No. 7691.
Neither can it be successfully argued that Section 39 of RA. No. 6425, as amended by P.D. No. 44, is no longer operative because
Section 44 of B.P. Big. 129 abolished the Courts of First Instance, Circuit Criminal Courts, and Juvenile and Domestic Relations
Courts. While, indeed, Section 44 provides that these courts were to be "deemed automatically abolished" upon the declaration
by the President that the reorganization provided in B.P. Blg. 129 had been completed, this Court should not lose sight of the fact
that the Regional Trial Courts merely replaced the Courts of First Instance as clearly borne out by the last two sentences of
Section 44, to wit:
xxxx
Consequently, it is not accurate to state that the "abolition" of the Courts of First Instance carried with it the abolition of their
exclusive original jurisdiction in drug cases vested by Section 39 of R.A. No. 6425, as amended by P. D. No. 44. If that were so, then
so must it be with respect to Article 360 of the Revised Penal Code and Section 57 of the Decree on Intellectual Property. On the
contrary, in the resolution of 19 June 1996 in Caro v. Court of Appeals and in the resolution of 26 February 1997 in Villalon v.
Ba/dado, this Court expressly ruled that Regional Trial Courts have the exclusive original jurisdiction over libel cases pursuant to
Article 360 of the Revised Penal Code. In Administrative Order No. 104-96 this Court mandates that:
xxxx
The same Administrative Order recognizes that violations of RA. No. 6425, as amended, regardless of the quantity involved, are to
be tried and decided by the Regional Trial Courts therein designated as special courts.94 (Emphasis and underscoring supplied)
Yet, much has been made of the terminology used in Section 90 of RA 9165. The dissents would highlight the provision's
departure from Section 39 of RA 6425 - the erstwhile drugs law, which provides:
SECTION 39. Jurisdiction of the Circuit Criminal Court. - The Circuit Criminal Court shall have exclusive original jurisdiction over
all cases involving offenses punishable under this Act.
For those in the dissent, the failure to reproduce the phrase "exclusive original jurisdiction" is a clear indication that no court,
least of all the RTC, has been vested with such "exclusive original jurisdiction" so that even the Sandiganbayan can take
cognizance and resolve a criminal prosecution for violation of RA 9165.
As thoroughly discussed by Justice Peralta in his Concurring Opinion, such deduction is unwarranted given the clear intent of the
legislature not only to retain the "exclusive original jurisdiction" of the RTCs over violations of the drugs law but to segregate
from among the several RTCs of each judicial region some RTCs that will "exclusively try and hear cases involving violations of
[RA 9165)." If at all, the change introduced by the new phraseology of Section 90, RA 9165 is not the deprivation of the RTCs'
"exclusive original jurisdiction" but the further restriction of this "exclusive original jurisdiction" to select RTCs of each judicial
region. This intent can be clearly gleaned from the interpellation on House Bill No. 4433, entitled "An Act Instituting the
Dangerous Drugs Act of 2002, repealing Republic Act No. 6425, as amended:"
Initially, Rep. Dilangalen referred to the fact sheet attached to the Bill which states that the measure will undertake a
comprehensive amendment to the existing law on dangerous drugs -- RA No. 6425, as amended. Adverting to Section 64 of the
Bill on the repealing clause, he then asked whether the Committee is in effect amending or repealing the aforecited law. Rep.
Cuenco replied that any provision of law which is in conflict with the provisions of the Bill is repealed and/or modified
accordingly.
In this regard, Rep. Dilangalen suggested that if the Committee's intention was only to amend RA No. 6425, then the wording used
should be "to amend" and not "to repeal" with regard to the provisions that are contrary to the provisions of the Bill.
Adverting to Article VIII, Section 60, on Jurisdiction Over Dangerous Drugs Case, which provides that "the Supreme Court shall
designate regional trial courts to have original jurisdiction over all offenses punishable by this Act," Rep. Dilangalen inquired
whether it is the Committee's intention that certain RTC salas will be designated by the Supreme Court to try drug-related
offenses, although all RTCs have original jurisdiction over those offenses.
Rep. Cuenco replied in the affirmative. He pointed that at present, the Supreme Court's assignment of drug cases to certain judges
is not exclusive because the latter can still handle cases other than drug-related cases. He added that the Committee's intention is
to assign drug-related cases to judges who will handle exclusively these cases assigned to them.
In this regard, Rep. Dilangalen stated that, at the appropriate time, he would like to propose the following amendment; "The
Supreme Court shall designate specific salas of the RTC to try exclusively offenses related to drugs."
Rep. Cuenca agreed therewith, adding that the Body is proposing the creation of exclusive drug courts because at present, almost
all of the judges are besieged by a lot of drug cases some of which have been pending for almost 20 years.95 (Emphasis and
underscoring supplied.)
Per the "Records of the Bilateral Conference Committee on the Disagreeing Provisions of Senate Bill No. 1858 and House Bill No.
4433," the term "designation" of R TCs that will exclusively handle drug-related offenses was used to skirt the budgetary
requirements that might accrue by the "creation" of exclusive drugs courts. It was never intended to divest the R TCs of their
exclusive original jurisdiction over drug-related cases. The Records are clear:
THE CHAIRMAN (REP. CUENCO). x x x [W]e would like to propose the creation of drug courts to handle exclusively drug cases;
the imposition of a 60-day deadline on courts within which to decide drug cases; and No. 3, provide penalties on officers of the
law and government prosecutors for mishandling and delaying drugs cases.
We will address these concerns one by one.
1. The possible creation of drugs courts to handle exclusively drug cases. Any comments?
xxxx
THE CHAIRMAN (SEN. BARBERS). We have no objection to this proposal, Mr. Chairman. As a matter of fact, this is one of the areas
where we come into an agreement when we were in Japan. However, I just would like to add a paragraph after the word "Act" in
Section 86 of the Senate versions, Mr. Chairman. And this is in connection with the designation of special courts by "The Supreme
Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and
hear cases involving violations of this Act. The number of court designated in each judicial region shall be based on the
population and the number of pending cases in their respective jurisdiction." That is my proposal, Mr. Chairman.
THE CHAIRMAN (REP. CUENCO). We adopt the same proposal.
xxxx
THE CHAIRMAN (SEN. BARBERS). I have no problem with that, Mr. Chairman, but I'd like to call your attention to the fact that my
proposal is only for designation because if it is for a creation that would entail another budget, Mr. Chairman. And almost always,
the Department of Budget would tell us at the budget hearing that we lack funds, we do not have money. So that might delay the
very purpose why we want the RTC or the municipal courts to handle exclusively the drug cases. That's why my proposal is
designation not creation.
THE CHAIRMAN (REP. CUENCO). Areglado. No problem, designation. Approved.96
The exclusive original jurisdiction over violations of RA 9165 is not transferred to the Sandiganbayan whenever the accused
occupies a position classified as Grade 27 or higher, regardless of whether the violation is alleged as committed in relation to
office. The power of the Sandiganbayan to sit in judgment of high-ranking government officials is not omnipotent. The
Sandiganbayan's jurisdiction is circumscribed by law and its limits are currently defined and prescribed by RA 10660, 97 which
amended Presidential Decree No. (PD) 1606.98 As it now stands, the Sandiganbayan has jurisdiction over the following:
SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and
higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:
xxxx
(2) Members of Congress and officials thereof classified as Grade '27' and higher under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade '27' and higher under the Compensation and Position Classification Act
of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees
mentioned in subsection a. of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the information: (a) does not allege any
damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from the same or closely
related transactions or acts in an amount not exceeding One Million pesos (₱l,000,000.00).
The foregoing immediately betrays that the Sandiganbayan primarily sits as a special anti-graft court pursuant to a specific
injunction in the 1973 Constitution.99 Its characterization and continuation as such was expressly given a constitutional fiat
under Section 4, Article XI of the 1987 Constitution, which states:
SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as
now or hereafter may be provided by law.
It should occasion no surprise, therefore, that the Sandiganbayan is without jurisdiction to hear drug-related cases. Even Section
4(b) of PD 1606, as amended by RA 10660, touted by the petitioner and the dissents as a catchall provision, does not operate to
strip the R TCs of its exclusive original jurisdiction over violations of RA 9165. As pointed out by Justices Tijam and Martires, a
perusal of the drugs law will reveal that public officials were never considered excluded from its scope. Hence, Section 27 of RA
9165 punishes government officials found to have benefited from the trafficking of dangerous drugs, while Section 28 of the law
imposes the maximum penalty on such government officials and employees. The adverted sections read:
SECTION 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the
Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laborat01y Equipment Including the Proceeds or Properties Obtained from the
Unlawful Act Committed - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (Pl0,000,000.00), in addition to absolute perpetual disqualification from any public office,
shall be imposed upon any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized
or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts
as provided for in this Act.
Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as
prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons
found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually disqualified
from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including
government-owned or -controlled corporations.
SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of the unlawful acts provided for
in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such
unlawful acts are government officials and employees. (Emphasis supplied)
Section 4(b) of PD 1606, as amended by RA 10660, provides but the general rule, couched in a "broad and general phraseology.
"100 Exceptions abound. Besides the jurisdiction on written defamations and libel, as illustrated in Morales 101and People v.
Benipayo, 102 the RTC is likewise given "exclusive original jurisdiction to try and decide any criminal action or proceedings for
violation of the Omnibus Election Code,"103 regardless of whether such violation was committed by public officers occupying
positions classified as Grade 27 or higher in relation to their offices. In fact, offenses committed by members of the Armed Forces
in relation to their office, i.e., in the words of RA 7055,104 "service-connected crimes or offenses," are not cognizable by the
Sandiganbayan but by court-martial.
Certainly, jurisdiction over offenses and felonies committed by public officers is not determined solely by the pay scale or by the
fact that they were committed "in relation to their office." In determining the forum vested with the jurisdiction to try and decide
criminal actions, the laws governing the subject matter of the criminal prosecution must likewise be considered.
In this case, RA 9165 specifies the RTC as the court with the jurisdiction to "exclusively try and hear cases involving
violations of [RA 9165)." This is an exception, couched in the special law on dangerous drugs, to the general rule under
Section 4(b) of PD 1606, as amended by RA 10660. It is a canon of statutory construction that a special law prevails over a
general law and the latter is to be considered as an exception to the general.105
Parenthetically, it has been advanced that RA 10660 has repealed Section 90 of RA 9165. However, a closer look at the repealing
clause of RA 10660 will show that there is no express repeal of Section 90 of RA 9165 and well-entrenched is the rule that an
implied repeal is disfavored. It is only accepted upon the clearest proof of inconsistency so repugnant that the two laws cannot be
enforced.106 The presumption against implied repeal is stronger when of two laws involved one is special and the other
general.107 The mentioned rule in statutory construction that a special law prevails over a general law applies regardless of the
laws' respective dates of passage. Thus, this Court ruled:
x x x [I]t is a canon of statutory construction that a special law prevails over a general law - regardless of their dates of passage -
and the special is to be considered as remaining an exception to the general.
So also, every effort must be exerted to avoid a conflict between statutes. If reasonable construction is possible, the laws must be
reconciled in that manner.
Repeals of laws by implication moreover are not favored, and the mere repugnancy between two statutes should be very clear to
warrant the court in holding that the later in time repeals the other.108
To reiterate for emphasis, Section 4(b) of PD 1606, as amended by RA 10660, is the general law on jurisdiction of the
Sandiganbayan over crimes and offenses committed by high-ranking public officers in relation to their office; Section 90, RA
9165 is the special law excluding from the Sandiganbayan's jurisdiction violations of RA 9165 committed by such public
officers. In the latter case, jurisdiction is vested upon the RTCs designated by the Supreme Court as drugs court, regardless of
whether the violation of RA 9165 was committed in relation to the public officials' office.
The exceptional rule provided under Section 90, RA 9165 relegating original exclusive jurisdiction to RTCs specially designated
by the Supreme Court logically follows given the technical aspect of drug-related cases. With the proliferation of cases involving
violation of RA 9165, it is easy to dismiss them as common and untechnical. However, narcotic substances possess unique
characteristics that render them not readily identifiable.109 In fact, they must first be subjected to scientific analysis by forensic
chemists to determine their composition and nature.110 Thus, judges presiding over designated drugs courts are specially trained
by the Philippine Judicial Academy (PhilJa) and given scientific instructions to equip them with the proper tools to appreciate
pharmacological evidence and give analytical insight upon this esoteric subject. After all, the primary consideration of RA 9165 is
the fact that the substances involved are, in fact, dangerous drugs, their plant sources, or their controlled precursors and essential
chemicals. Without a doubt, not one of the Sandiganbayan justices were provided with knowledge and technical expertise on
matters relating to prohibited substances.
Hard figures likewise support the original and exclusive jurisdiction of the RTCs over violations of RA 9165. As previously stated,
as of June 30, 2017, there are 232,557 drugs cases pending before the RTCs. On the other hand, not even a single case filed before
the Sandiganbayan from February 1979 to June 30, 2017 dealt with violations of the drugs law. Instead, true to its designation as
an anti-graft court, the bulk of the cases filed before the Sandiganbayan involve violations of RA 3019, entitled the "Anti-Graft and
Corrupt Practices Act" and malversation.111 With these, it would not only be unwise but reckless to allow the tribunal
uninstructed and inexperienced with the intricacies of drugs cases to hear and decide violations of RA 9165 solely on account of
the pay scale of the accused.
Likewise of special significance is the proviso introduced by RA 10660 which, to reiterate for emphasis, states:
Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the information: (a) does not allege any
damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from the same or closely
related transactions or acts in an amount not exceeding One million pesos (₱l,000,000.00).
The clear import of the new paragraph introduced by RA 10660 is to streamline the cases handled by the Sandiganbayan by
delegating to the RTCs some cases involving high-ranking public officials. With the dissents' proposition, opening the
Sandiganbayan to the influx of drug-related cases, RA 10660 which was intended to unclog the dockets of the Sandiganbayan
would all be for naught. Hence, sustaining the RTC's jurisdiction over drug-related cases despite the accused's high-ranking
position, as in this case, is all the more proper.
Even granting arguendo that the Court declares the Sandiganbayan has jurisdiction over the information subject of Criminal Case
No. 17-165, still it will not automatically result in the release from detention and restore the liberty and freedom of petitioner.
The R TC has several options if it dismisses the criminal case based on the grounds raised by petitioner in her Motion to Quash.
Under Rule 117 of the Rules of Court, the trial court has three (3) possible alternative actions when confronted with a Motion to
Quash:
1. Order the amendment of the Infonnation;
2. Sustain the Motion to Quash; or
3. Deny the Motion to Quash.
The first two options are available to the trial court where the motion to quash is meritorious. Specifically, as to the first option,
this court had held that should the Information be deficient or lacking in any material allegation, the trial court can order the
amendment of the Information under Section 4, Rule 117 of the Rules of Court, which states:
SECTION 4. Amendment of Complaint or Information. - If the motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order that an amendment be made.
If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an
opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or
the complaint or information still suffers from the same defect despite the amendment.
The failure of the trial court to order the correction of a defect in the Information curable by an amendment amounts to an
arbitrary exercise of power. So, this Court held in Dio v. People:
This Court has held that failure to provide the prosecution with the opportunity to amend is an arbitrary exercise of power.
In People v. Sandiganbayan (Fourth Division): When a motion to quash is filed challenging the validity and sufficiency of an
Information, and the defect may be cured by amendment, courts must deny the motion to quash and order the prosecution to file
an amended Information. Generally, a defect pertaining to the failure of an Information to charge facts constituting an offense is
one that may be corrected by an amendment. In such instances, courts are mandated not to automatically quash the Information;
rather, it should grant the prosecution the opportunity to cure the defect through an amendment. This rule allows a case to
proceed without undue delay. By allowing the defect to be cured by simple amendment, unnecessary appeals based on technical
grounds, which only result to prolonging the proceedings, are avoided.
More than this practical consideration, however, is the due process underpinnings of this rule. As explained by this Court in
People v. Andrade, the State, just like any other litigant, is entitled to its day in court. Thus, a court's refusal to grant the
prosecution the opportunity to amend an Information, where such right is expressly granted under the Rules of Court and
affirmed time and again in a string of Supreme Court decisions, effectively curtails the State's right to due process. 112
Notably, the defect involved in Dio was the Information's failure to establish the venue - a matter of jurisdiction in criminal cases.
Thus, in the case at bar where petitioner has not yet been arraigned, the court a quo has the power to order the amendment of the
February 17, 2017 Information filed against the petitioner. This power to order the amendment is not reposed with this Court in
the exercise of its certiorari powers.
Nevertheless, should the trial court sustain the motion by actually ordering the quashal of the Infonnation, the prosecution is not
precluded from filing another information. An order sustaining the motion to quash the information would neither bar another
prosecution113 or require the release of the accused from custody. Instead, under Section 5, Rule 117 of the Rules of Court, the
trial court can simply order that another complaint or information be filed without discharging the accused from custody. Section
5, Rule 117 states, thus:
Section 5. Effect of sustaining the motion to quash. - If the motion to quash is sustained, the court may order that another
complaint or information be filed except as provided in Section 6 of this rule. If the order is made, the accused, if in custody, shall
not be discharged unless admitted to bail. If no order is made or if having been made, no new information is filed within the time
specified in the order or within such further time as the court may allow for good cause, the accused, if in custody, shall be
discharged unless he is also in custody for another charge.
Section 6, Rule 117, adverted to in the foregoing provision, prevents the re-filing of an information on only two grounds: that the
criminal action or liability has already been extinguished, and that of double jeopardy. Neither was invoked in petitioner's Motion
to Quash filed before the court a quo.
The third option available to the trial court is the denial of the motion to quash. Even granting, for the nonce, the petitioner's
position that the trial court's issuance of the warrant for her arrest is an implied denial of her Motion to Quash, the proper
remedy against this court action is to proceed to trial, not to file the present petition for certiorari. This Court in Galzote v.
Briones reiterated this established doctrine:
A preliminary consideration in this case relates to the propriety of the chosen legal remedies availed of by the petitioner in the
lower courts to question the denial of his motion to quash. In the usual course of procedure, a denial of a motion to quash filed by
the accused results in the continuation of the trial and the determination of the guilt or innocence of the accused. If a judgment of
conviction is rendered and the lower court's decision of conviction is appealed, the accused can then raise the denial of his
motion to quash not only as an error committed by the trial court but as an added ground to overturn the latter's ruling.
In this case, the petitioner did not proceed to trial but opted to immediately question the denial of his motion to quash via a
special civil action for certiorari under Rule 65 of the Rules of Court.
As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal from an interlocutory order is
not allowed under Section 1 (b), Rule 41 of the Rules of Court. Neither can it be a proper subject of a petition for certiorari which
can be used only in the absence of an appeal or any other adequate, plain and speedy remedy. The plain and speedy remedy upon
denial of an interlocutory order is to proceed to trial as discussed above. 114 (Emphasis and underscoring supplied)
At this juncture, it must be stressed yet again that the trial court has been denied the opportunity to act and rule on petitioner's
motion when the latter jumped the gun and prematurely repaired posthaste to this Court, thereby immobilizing the trial court in
its tracks. Verily, De Lima should have waited for the decision on her motion to quash instead of prematurely filing the instant
recourse.
In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition and direct the trial court to
rule on the Motion to Quash and undertake all the necessary proceedings to expedite the adjudication of the subject criminal case.
RESPONDENT JUDGE DID NOT ABUSE HER DISCRETION IN FINDING PROBABLE CAUSE TO ORDER THE PETITIONER'S ARREST
The basis for petitioner's contention that respondent judge committed grave abuse of discretion in issuing the February 23, 2017
Order115 finding probable cause to arrest the petitioner is two-pronged: respondent judge should have first resolved the
pending Motion to Quash before ordering the petitioner's arrest; and there is no probable cause to justify the petitioner's arrest.
Grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an evasion of positive duty or a
virtual refusal to act at all in contemplation of the law.116
In the present case, the respondent judge had no positive duty to first resolve the Motion to Quash before issuing a warrant of
arrest. There is no rule of procedure, statute, or jurisprudence to support the petitioner's claim. Rather, Sec.5(a), Rule 112 of the
Rules of Court117 required the respondent judge to evaluate the prosecutor's resolution and its supporting evidence within a
limited period of only ten (10) days, viz.:
SEC. 5. When warrant of arrest may issue. -
(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment
order when the complaint or information was filed pursuant to Section 6 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the filing of the complaint or information.
It is not far-fetched to conclude, therefore, that had the respondent judge waited longer and first attended to the
petitioner's Motion to Quash, she would have exposed herself to a possible administrative liability for failure to observe Sec. 5(a),
Rule 112 of the Rules of Court. Her exercise of discretion was sound and in conformity with the provisions of the Rules of Court
considering that a Motion to Quash may be filed and, thus resolved by a trial court judge, at any time before the accused petitioner
enters her plea.118 What is more, it is in accord with this Court's ruling in Marcos v. Cabrera-Faller119that "[a]s the presiding judge,
it was her task, upon the filing of the Information, to first and foremost determine the existence or non-existence of probable
cause for the arrest of the accused."
This Court's ruling in Miranda v. Tuliao 120does not support the petitioner's position. Miranda does not prevent a trial court from
ordering the arrest of an accused even pending a motion to quash the infonnation. At most, it simply explains that an accused can
seek judicial relief even if he has not yet been taken in the custody of law.
Undoubtedly, contrary to petitioner's postulation, there is no rule or basic principle requiring a trial judge to first resolve a
motion to quash, whether grounded on lack of jurisdiction or not, before issuing a warrant of arrest. As such, respondent judge
committed no grave abuse of discretion in issuing the assailed February 23, 2017 Order even before resolving petitioner's Motion
to Quash. There is certainly no indication that respondent judge deviated from the usual procedure in finding probable cause to
issue the petitioner's arrest.
And yet, petitioner further contends that the language of the February 23, 2017 Order violated her constitutional rights and is
contrary to the doctrine in Soliven v. Makasiar. 121Petitioner maintains that respondent judge failed to personally determine the
probable cause for the issuance of the warrant of arrest since, as stated in the assailed Order, respondent judge based her
findings on the evidence presented during the preliminary investigation and not on the report and supporting documents
submitted by the prosecutor.122 This hardly deserves serious consideration.
Personal determination of the existence of probable cause by the judge is required before a warrant of arrest may issue. The
Constitution123 and the Revised Rules of Criminal Procedure124 command the judge "to refrain from making a mindless
acquiescence to the prosecutor's findings and to conduct his own examination of the facts and circumstances presented by both
parties. "125 This much is clear from this Court's n1ling in Soliven cited by the petitioner, viz.:
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.126
It must be emphasized, however, that in determining the probable cause to issue the warrant of arrest against the petitioner,
respondent judge evaluated the Information and "all the evidence presented during the preliminary investigation conducted in
this case." The assailed February 23, 2017 Order is here restated for easy reference and provides, thusly:
After a careful evaluation of the herein Information and all the evidence presented during the preliminary investigation
conducted in this case by the Department of Justice, Manila, the Court finds sufficient probable cause for the issuance of Warrants
of Arrest against all the accused LEILA M. DE LIMA x x x.127 (Emphasis supplied.)
As the prosecutor's report/resolution precisely finds support from the evidence presented during the preliminary investigation,
this Court cannot consider the respondent judge to have evaded her duty or refused to perform her obligation to satisfy herself
that substantial basis exists for the petitioner's arrest. "All the evidence presented during the preliminary investigation"
encompasses a broader category than the "supporting evidence" required to be evaluated in Soliven. It may perhaps even be
stated that respondent judge performed her duty in a manner that far exceeds what is required of her by the rules when she
reviewed all the evidence, not just the supporting documents. At the very least, she certainly discharged a judge's duty in finding
probable cause for the issuance of a warrant, as described in Ho v. People:
The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what probable cause
means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a
reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested.
Hence, the judge, before issuing a warrant of arrest, 'must satisfy himself that based on the evidence submitted, there is sufficient
proof that a crime has been committed and that the person to be arrested is probably guilty thereof' At this stage of the criminal
proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is
sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon we stressed that the
judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de
novo hearing. He simply personally reviews the prosecutor's initial determination finding probable cause to see if it is supported
by substantial evidence."
xxxx
x x x [T]he judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of
arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason
to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have
supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or
non-existence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the
existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the
prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the
information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable
His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and
examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every
case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have
sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcript of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify
the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the
prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of
regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the
Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This
Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the
investigating officer.128 (Emphasis supplied.)
Notably, for purposes of determining the propriety of the issuance of a warrant of arrest, the judge is tasked to merely determine
the probability, not the certainty, of the guilt of the accused.129 She is given wide latitude of discretion in the determination of
probable cause for the issuance of warrants of arrest.130 A finding of probable cause to order the accused's arrest does not require
an inquiry into whether there is sufficient evidence to procure a conviction.131 It is enough that it is believed that the act or
omission complained of constitutes the offense charged.132
Again, per the February 23, 2017 Order, respondent judge evaluated all the evidence presented during the preliminary
investigation and on the basis thereof found probable cause to issue the warrant of arrest against the petitioner. This is not
surprising given that the only evidence available on record are those provided by the complainants and the petitioner, in fact, did
not present any counter-affidavit or evidence to controvert this. Thus, there is nothing to disprove the following preliminary
findings of the DOJ prosecutors relative to the allegations in the Information filed in Criminal Case No. 17-165:
Thus, from November 2012 to March 2013, De Lima[,] Ragos and Dayan should be indicted for violation of Section 5, in relation
to Section 3Gj), Section 26(b) and Section 28, of R.A. 9165, owing to the delivery of PS million in two (2) occasions, on 24
November 2012 and 15 December 2012, to Dayan and De Lima. The monies came inmate Peter Co [were] proceeds from illicit
drug trade, which were given to support the senatorial bid of De Lima.
Also in the same period, Dayan demanded from Ragos money to support the senatorial bid of De Lima. Ragos demanded and
received ₱100,000 tara from each of the high-profile inmates in exchange for privileges, including their illicit drug trade. Ablen
collected the money for Ragos who, in turn, delivered them to Dayan at De Lima's residence. 133
The foregoing findings of the DOJ find support in the affidavits and testimonies of several persons. For instance, in his Affidavit
dated September 3, 2016, NBI agent Jovencio P. Ablen, Jr. narrated, viz.:
21. On the morning of 24 November 2012, I received a call from Dep. Dir. Ragos asking where I was. I told him I was at home. He
replied that he will fetch me to accompany him on a very important task.
22. Approximately an hour later, he arrived at my house. I boarded his vehicle, a Hyundai Tucson, with plate no. RGU910. He then
told me that he will deliver something to the then Secretary of Justice, Sen. Leila De Lima. He continued and said "Nior confidential
'to. Tayong dalawa lang ang nakakaalam nito. Dadalhin natin yung quota kay Lola. SM 'yang nasa bag. Tingnan mo."
23. The black bag he was referring to was in front of my feet. It [was a] black handbag. When I opened the bag, I saw bundles of
One Thousand Peso bills.1âwphi1
24. At about 10 o'clock in the morning, we arrived at the house located at Laguna Bay corner Subic Bay Drive, South Bay Village,
Paranaque City.
25. Dep. Dir. Ragos parked his vehicle in front of the house. We both alighted the vehicle but he told me to stay. He then
proceeded to the house.
26. From our parked vehicle, I saw Mr. Ronnie Dayan open the gate. Dep. Dir. Ragos then handed the black handbag containing
bundles of one thousand peso bills to Mr. Dayan.
27. At that time, I also saw the then DOJ Sec. De Lima at the main door of the house. She was wearing plain clothes which is
commonly known referred to as "duster."
28. The house was elevated from the road and the fence was not high that is why I was able to clearly see the person at the main
door, that is, Sen. De Lima.
29. When Dep. Dir. Ragos and Mr. Dayan reached the main door, I saw Mr. Dayan hand the black handbag to Sen. De Lima, which
she received. The three of them then entered the house.
30. After about thirty (30) minutes, Dep. Dir. Ragos went out of the house. He no longer has the black handbag with him.
31. We then drove to the BuCor Director's Quarters in Muntinlupa City. While cruising, Dep. Dir. Ragos told me "Nior 'wag kang
maingay kahit kanino at wala kang nakita ha," to which I replied "Sabi mo e. e di wala akong nakita."
32. On the morning of 15 December 2012, Dep. Dir. Ragos again fetched me from my house and we proceeded to the same house
located at Laguna Bay comer Subic Bay Drive, South Bay Village, Paranaque City.
33. That time, I saw a plastic bag in front of my feet. I asked Dep. Dir. Ragos "Quota na naman Sir?" Dep. Dir. Ragos replied "Ano pa
nga ba, 'tang ina sila lang meron. "134
Petitioner's co-accused, Rafael Ragos, recounted in his own Affidavit dated September 26, 2016 a similar scenario:
8. One morning on the latter part of November 2012, I saw a black handbag containing a huge sum of money on my bed inside the
Director's Quarters of the BuCor. I looked inside the black handbag and saw that it contains bundles of one thousand peso bills.
9. I then received a call asking me to deliver the black handbag to Mr. Ronnie Dayan. The caller said the black handbag came from
Peter Co and it contains "Limang Manoi<' which means Five Million Pesos (Php5,000,000.00) as a "manoR' refers to One Million
Pesos (Php 1,000,000.00) in the vernacular inside the New Bilibid Prison.
10. As I personally know Mr. Dayan and knows that he stays in the house of the then DOJ Sec. Leila M. De Lima located at Laguna
Bay corner Subic Bay Drive, South Bay Village, Paranaque City, I knew I had to deliver the black handbag to Sen. De Lima at the
said address.
11. Before proceeding to the house of Sen. De Lima at the above[-]mentioned address, I called Mr. Ablen to accompany me in
delivering the money. I told him we were going to do an important task.
12. Mr. Ablen agreed to accompany me so I fetched him from his house and we proceeded to the house of Sen. De Lima at the
above-mentioned address.
13. While we were in the car, I told Mr. Ablen that the important task we will do is deliver Five Million Pesos (Php5,000,000.00)
"Quota" to Sen. De Lima. I also told him that the money was in the black handbag that was on the floor of the passenger seat (in
front of him) and he could check it, to which Mr. Ablen complied.
All these, at least preliminarily, outline a case for illegal drug trading committed in conspiracy by the petitioner and her co-
accused. Thus, the Court cannot sustain the allegation that respondent judge committed grave abuse of discretion in issuing the
assailed Order for petitioner's arrest.
Petitioner would later confine herself to the contention that the prosecution's evidence is inadmissible, provided as they were by
petitioner's co-accused who are convicted felons and whose testimonies are but hearsay evidence.

14. Before noon, we arrived at the house of Sen. De Lima located at Laguna Bay corner Subic Bay Drive, South Bay Village,
Paranaque City.
15. I parked my vehicle in front of the house. Both Mr. Ablen and I alighted from the vehicle but I went to the gate alone carrying
the black handbag containing the Five Million Pesos (Php5,000,000.00).
Nowhere in Ramos v. Sandiganbayan 137 - the case relied upon by petitioner - did this Court rule that testimonies given by a co-
accused are of no value. The Court simply held that said testimonies should be received with great caution, but not that they
would not be considered. The testimony of Ramos' co-accused was, in fact, admitted in the cited case. Furthermore, this Court
explicitly ruled in Estrada v. Office of the Ombudsman138that hearsay evidence is admissible during preliminary investigation. The
Court held thusly:

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay.
16. At the gate, Mr. Ronnie Dayan greeted me and opened the gate for me. I then handed the handbag containing the money to Mr. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely
Dayan. preliminary, and does not finally adjudicate rights and obligations of parties.139 (Emphasis supplied.)

17. We then proceeded to the main door of the house where Sen. De Lima was waiting for us. At the main door, Mr. Dayan handed
the black handbag to Sen. De Lima, who received the same. We then entered the house.
18. About thirty minutes after, I went out of the house and proceeded to my quarters at the BuCor, Muntinlupa City.
Verily, the admissibility of evidence,140 their evidentiary weight, probative value, and the credibility of the witness are matters
that are best left to be resolved in a full-blown trial,141 not during a preliminary investigation where the technical rules of
evidence are not applied142 nor at the stage of the determination of probable cause for the issuance of a warrant of arrest. Thus,
the better alternative is to proceed to the conduct of trial on the merits for the petitioner and the prosecution to present their
respective evidence in support of their allegations.

19. One morning in the middle part of December 2012, I received a call to again deliver the plastic bag containing money from
Peter Co to Mr. Ronnie Dayan. This time the money was packed in a plastic bag left on my bed inside my quarters at the BuCor, With the foregoing disquisitions, the provisional reliefs prayed for, as a consequence, have to be rejected.
Muntinlupa City. From the outside of the bag, I could easily perceive that it contains money because the bag is translucent.
WHEREFORE, the instant petition for prohibition and certiorari is DISMISSED for lack of merit. The Regional Trial Court of
20. Just like before, I fetched Mr. Ablen from his house before proceeding to the house of Sen. De Lima located at Laguna Bay Muntinlupa City, Branch 204 is ordered to proceed with dispatch with Criminal Case N6.17-165.
corner Subic Bay Drive, South Bay Village, Paranaque City, where I know I could find Mr. Dayan.
SO ORDERED.
21. In the car, Mr. Ablen asked me if we are going to deliver "quota." I answered yes.

22. We arrived at the house of Sen. De Lima at the above[-]mentioned address at noontime. I again parked in front of the house.

23. I carried the plastic bag containing money to the house. At the gate, I was greeted by Mr. Ronnie Dayan. At that point, I handed
the bag to Mr. Dayan. He received the bag and we proceeded inside the house. 135

The source of the monies delivered to petitioner De Lima was expressly bared by several felons incarcerated inside the NBP.
Among them is Peter Co, who testified in the following manner:

6. Noong huling bahagi ng 2012, sinabi sa akin ni Hans Tanna nanghihingi ng kontribusyon sa mga Chinese sa Maximum Security
Compound ng NBP si dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado sa 2013 Elections. Dalawang beses
akong nagbigay ng tig-P5 Million para tugunan ang hiling ni Sen. De Lima, na dating DOJ Secretary;

7. Binigay ko ang mga halagang ito kay Hans Tan para maibigay kay Sen. Leila De Lima na dating DOJ Secretary. Sa parehong
pagkakataon, sinabihan na lang ako ni Hans Tan na naibigay na ang pera kay Ronnie Dayan na siyang tumatanggap ng pera para
kay dating DOJ Sec. De Lima Sinabi rin ni Hans Tanna ang nagdeliver ng pera ay si dating OIC ng BuCor na si Rafael Ragos.

8. Sa kabuuan, nakapagbigay ang mga Chinese sa loob ng Maximum ng PIO Million sa mga huling bahagi ng taong 2012 kay
dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado sa 2013 Elections. Ang mga perang ito ay mula sa
pinagbentahan ng illegal na droga.136
-Falcis vs Civil Register General (G.R. No. 217910. September 3, 2019)
[ G.R. No. 217910, September 03, 2019 ]
JESUS NICARDO M. FALCIS, III, PETITIONER, V. CIVIL REGISTRAR GENERAL, RESPONDENT.
LGBTS CHRISTIAN CHURCH, INC., REVEREND CRESENCIO "CEEJAY" AGBAYANI, JR., MARLON FELIPE, AND MARIA ARLYN
"SUGAR" IBAÑEZ, PETITIONERS-IN-INTERVENTION.
ATTY. FERNANDO P. PERITO, ATTY. RONALDO T. REYES, ATTY. JEREMY I. GATDULA, ATTY. CRISTINA A. MONTES, AND
ATTY. RUFINO POLICARPIO III, INTERVENORS-OPPOSITORS.
DECISION
LEONEN, J.:
Cultural hegemony often invites people to conform to its impositions on their identities. Yet, there are some who, despite
pressures, courageously choose to be authentic to themselves. This case is about the assurance of genuine individual autonomy
within our constitutional legal order. It is about the virtue of tolerance and the humane goal of non-discrimination. It is about
diversity that encourages meaningful—often passionate—deliberation. Thus, it is about nothing less than the quality of our
freedom.
This Court does not have a monopoly in assuring this freedom. With the most difficult political, moral, and cultural questions, the
Constitution requires that we share with the political departments of government, especially with Congress, the quest for
solutions which balance interests while maintaining fealty to fundamental freedoms.
Adjudication enables arguments between parties with respect to the existence and interpretation of fundamental freedoms. On
the other hand, legislation ideally allows public democratic deliberation on the various ways to assure these fundamental rights.
The process of legislation exposes the experiences of those who have been oppressed, ensuring that they are understood by those
who stand with the majority. Often, public reason needs to be first shaped through the crucible of campaigns and advocacies
within our political forums before it is sharpened for judicial fiat.
Judicial wisdom is, in large part, the art of discerning when courts choose not to exercise their perceived competencies.
In this case, this Court unanimously chooses the path of caution.
Those with sexual orientations other than the heteronormative, gender identities that are transgender or fluid, or gender
expressions that are not the usual manifestations of the dominant and expected cultural binaries—the lesbian, gay, bisexual,
transgender, queer, intersex, and other gender and sexual minorities (LGBTQI+) community—have suffered enough
marginalization and discrimination within our society. We choose to be careful not to add to these burdens through the swift
hand of judicial review.
Marriage, as conceived in our current laws, may hew to the dominant heteronormative model, but asserting by judicial fiat that it
should—with all its privileges and burdens—apply to same-sex couples as well will require a precision in adjudication, which the
circumstances in this case do not present. To do so assumes a blind unproven judicial faith that the shape of marriage in our
current laws will be benign for same-sex couples. Progressive passion asserted recklessly may unintentionally impose more
burdens rather than less.
The pleadings assert a broad right of same-sex couples to official legal recognition of their intimate choices. They certainly
deserve legal recognition in some way. However, whether such recognition should come by way of the exact same bundle of
rights granted to heterosexual couples in our present laws is a proposition that should invite more public discussion in the halls
of Congress.
Given the factual context of this case, this Court declines, for now, to grant the broad relief prayed for in the Petition.
Furthermore, the exercise of this Court's power of judicial review is among the most elementary matters imparted to aspiring
lawyers. One who brandishes himself a lawyer is rightly presumed to be well-acquainted with the bare rudiments of court
procedure and decorum. To forget these rules and practices—or worse, to purport to know them, but really, only to exploit them
by way of propaganda—and then, to jump headlong into the taxing endeavor of constitutional litigation is a contemptuous
betrayal of the high standards of the legal profession.
Lawyers, especially those engaged in public interest litigation, should always be mindful that their acts and omissions before the
courts do not only affect themselves. By thrusting themselves into the limelight to take up the cudgels on behalf of a minority
class, public interest lawyers represent the hopes and aspirations of a greater mass of people, not always with the consent of all
the members of that class. Their errors and mistakes, their negligence and lethargy have a ripple effect even on persons who have
no opportunity to consent to the stratagems and tactics employed by ill-prepared and sophomoric counsels.
On May 18, 2015, Jesus Nicardo M. Falcis III (Falcis) filed pro se before this Court a Petition for Certiorari and Prohibition under
Rule 65 of the 1997 Rules of Civil Procedure.1 His Petition sought to "declare Articles 1 and 2 of the Family Code as
unconstitutional and, as a consequence, nullify Articles 46(4)2 and 55(6)3 of the Family Code."4
Falcis claims that a resort to Rule 65 was appropriate, citing5 Magallona v. Executive Secretary,6 Araullo v. Executive
Secretary,7 and the separate opinion8 of now-retired Associate Justice Arturo D. Brion (Associate Justice Brion) in Araullo. Again
citing Associate Justice Brion's separate opinion, he claims that this Court should follow a "'fresh' approach to this Court's judicial
power"9 and find that his Petition pertains to a constitutional case attended by grave abuse of discretion.10 He also asserts that
the mere passage of the Family Code, with its Articles 1 and 2, was a prima facie case of grave abuse of discretion,11 and that the
issues he raised were of such transcendental importance12 as to warrant the setting aside of procedural niceties.
Falcis further argues that his Petition complied with the requisites of judicial review: (1) actual case or controversy; (2) standing;
(3) was raised at the earliest opportunity; and (4) that the constitutional question is the very lis mota of the case.13 As to
standing, he claims that his standing consisted in his personal stake in the outcome of the case, as he "is an open and self-
identified homosexual"14 who alleges that the Family Code has a "normative impact"15 on the status of same-sex relationships in
the country. He was also allegedly injured by the supposed "prohibition against the right to marry the same-sex[,]"16 which
prevents his plans to settle down in the Philippines.17
Falcis justifies the direct recourse to this Court by citing, in addition to the alleged transcendental importance of the issues he
raised, the supposed lack of need for trial concerning any factual issues. He also insists that the constitutionality of Articles 1 and
2 of the Family Code were the very lis mota of his case.18
According to Falcis, a facial challenge on Articles 1 and 2 is permitted as these two (2) provisions regulate fundamental rights
such as "the right to due process and equal protection, right to decisional and marital privacy, and the right to found a family in
accordance with religious convictions."19
Falcis further claims that strict scrutiny should be the test used in appraising the constitutionality of Articles 1 and 2 of the Family
Code, and that the compelling state interest involved is the protection of marriage pursuant to Article XV, Section 2 of the
Constitution, not the protection of heterosexual relationships.20 He argues that like opposite-sex couples, same-sex couples are
equally capable of founding their own families and fulfilling essential marital obligations.21 He claims that contrary to Chi Ming
Tsoi v. Court of Appeals,22 procreation is not an essential marital obligation. Because there is allegedly no necessity to limit
marriage as only between a man and a woman, Articles 1 and 2 of the Family Code are supposedly unconstitutional for depriving
Falcis of his right to liberty without substantive due process of law.23
To support his allegation that strict scrutiny is the appropriate test, Falcis extensively referenced and quoted—devoting more
than five (5) pages of his 29-page Petition—the separate concurring opinion of retired Chief Justice Reynato Puno (retired Chief
Justice Puno) in Ang Ladlad Party-list v. Commission on Elections.24 However, he claims that retired Chief Justice Puno
incorrectly concluded that the appropriate test is intermediate or heightened review.25 Nonetheless, he argues that even under
the rational basis test, there is a violation of the equal protection clause since there is no substantial distinction between same-
sex and opposite-sex couples.26
Finally, Falcis claims that Articles 1 and 2 of the Family Code deny the existence of "individuals belonging to religious
denominations that believe in same-sex marriage"27 and that they have a "right to found a family in accordance with their
religious convictions."28 He claims that the religious weddings conducted by these denominations have been denied civil
recognition "unlike the religious convictions of Catholics and Muslims."29
On June 30, 2015, this Court ordered the Civil Registrar General to comment on the Petition.30
On June 22, 2015, Fernando P. Perito (Perito) filed pro se an Answer-in-Intervention31 to the Petition. He claims that the Petition
failed to comply with several requirements of Rule 65, including: (1) the annexing of a certified true copy of the judgment, order,
or resolution subject of the case; (2) there being no act of any tribunal, board, or officer exercising judicial or quasi-judicial
functions; and (3) that the Petition had to be filed within 60 days from notice of the assailed judgment, order, or
resolution.32 Perito also claims that Falcis did not present any statistics or evidence showing discrimination against the LGBTQI+
community33 and that Falcis did not show any specific injury, such as the denial of a marriage license or refusal of a solemnizing
officer to officiate a same-sex marriage.34
Perito further points out that Falcis is estopped from questioning the validity of the Family Code, it having been effective since
1987.35 He also extensively cites the Christian Bible as authority for defending Articles 1 and 2's limitation of marriage as
between a man and a woman.36
This Answer-in-Intervention was treated by this Court as a motion to intervene with answer-in-intervention, which was granted
in this Court's July 28, 2015 Resolution.37 This Court, in the same Resolution, further required Falcis to reply to the Answer-in-
Intervention.
Falcis filed his Reply38 to the Answer-in-Intervention on September 21, 2015. He reiterates his claims concerning his compliance
with procedural requirements. His Reply was noted in this Court's October 6, 2015 Resolution.39
The Civil Registrar General, through the Office of the Solicitor General, filed its Comment (Ad Cautelam)40 on March 29, 2016. It
prays that this Court deny due course to or dismiss the Petition. It notes that the Petition was not in the nature of a class suit, but
was instead personal only to Falcis.41 Because of this, it claims that Falcis failed to show injury-in-fact and an actual case or
controversy, but was rather seeking an advisory opinion that this Court cannot issue.42
The Civil Registrar General also faults Falcis for not impleading Congress, as his Petition actually challenged the current
legislative policy on same-sex marriage, and not any act committed by the Civil Registrar-General.43 Finally, it claims that Falcis
has not proven that the issues in this case are of such transcendental importance, there being no law or facts contained in his
Petition to determine any principles concerning the constitutionality of same-sex marriage in the Philippines.44
On April 7, 2016, LGBTS Christian Church, Inc. (LGBTS Church), Reverend Crescencio "Ceejay" Agbayani, Jr. (Reverend Agbayani),
Marlon Felipe (Felipe), and Maria Arlyn "Sugar" Ibañez (Ibañez)—collectively, petitioners-intervenors—whose counsel was
Falcis himself, filed a Motion for Leave to Intervene and Admit Attached Petition-in-Intervention.45 They ask this Court to allow
them to intervene in the proceedings, claiming that: (1) they offer further procedural and substantive arguments; (2) their rights
will not be protected in a separate proceeding; and (3) they have an interest in the outcome of this case. They adopt by reference
the arguments raised by Falcis in his Petition.46
Subsequently, they filed their Petition-in-Intervention,47 which is a Petition for Certiorari under Rule 65 of the Rules of Court,
seeking the same reliefs as those in Falcis' Petition, namely: (1) the declaration of unconstitutionality of Articles 1 and 2 of the
Family Code; and (2) the invalidation of Articles 46(4) and 55(6) of the Family Code.48
Similar to Falcis, petitioners-intervenors claim that a petition for certiorari under Rule 65 is an appropriate remedy.49 They aver
that the requisites of judicial review are present. First, they have an actual case or controversy since petitioners-intervenors
Reverend Agbayani, Felipe, and Ibanez were supposedly denied a marriage license on August 3, 2015.50 Second, they have legal
standing. LGBTS Church claims third-party standing, even as it also claims that its own right to religious freedom was directly, not
just indirectly violated. Petitioners-intervenors Reverend Agbayani, Felipe, and Ibañez claim standing on the basis of their
supposed attempts to secure marriage licenses. This was despite LGBTS Church claiming that it has third-party standing because
its own members, which included petitioners-intervernors Reverend Agbayani, Felipe, and Ibañez, were "unlikely"51 to file
suit.52
Petitioners-intervenors restate Falcis' claims that the issues were raised at the earliest opportunity, that the constitutionality of
Articles 1 and 2 of the Family Code is the lis mota of the case, and that a direct recourse to this Court was proper.53
Petitioners-intervenors use arguments from Christian theology to prove that there should be no civil restriction against same-sex
marriage.54 They also claim that the lack of civil recognition for their religious ceremonies, as contrasted with the recognition
granted to "Filipino Catholics and Filipino Muslims[,]"55 violate the equal protection clause.56
This Court noted the Motion to Intervene and Petition-in-Intervention in its June 7, 2016 Resolution.57
On August 10, 2016, Falcis filed a Motion to Set the Case for Oral Arguments.58 He also filed a Reply59 to the Comment (Ad
Cautelam), again reiterating his procedural arguments.
In compliance with this Court's December 6, 2016 Resolution,60 the Office of the Solicitor General manifested61 that it was
maintaining the arguments stated in its Comment (Ad Cautelam), but reserved its right to comment on the Petition-in-
Intervention. Its Manifestation was noted in this Court's February 7, 2017 Resolution.62
On March 28, 2017, this Court granted the Motion for Leave to Intervene and Admit Petition-in-Intervention and required the
Civil Registrar General and Perito to comment on the Petition-in-Intervention.63
The Civil Registrar General filed its Comment (Ad Cautelam) on the Petition-in-Intervention,64 which this Court noted in its
August 8, 2017 Resolution.65 The Civil Registrar General claims that the issues raised in the Petition are political questions,
saying that marriage's legal definition is a policy issue for Congress to determine,66 and that any amendment to the definition in
Articles 1 and 2 of the Family Code should be addressed to Congress.67
In a March 6, 2018 Resolution,68 this Court set the case for oral arguments, with a scheduled preliminary conference on June 5,
2018.69 Perito manifested that he would not be able to attend the preliminary conference.70
During the preliminary conference, Falcis, who appeared on his own behalf and on behalf of petitioners-intervenors, was ordered
to show cause why he should not be cited in direct contempt:
Considering that petitioner Jesus Nicardo M. Falcis III was attired with a casual jacket, cropped jeans and loafers without socks,
Associate Justice Marvic M.V.F. Leonen directed him to show cause by June 6, 2018, why he should not be cited in direct contempt
for his failure to observe the required decorum during the preliminary conference which is a formal session of the Court.
Petitioner was likewise advised to request a briefing from his former professors, or the law firm he is going to retain, on the
proper protocols to be observed inside the Court, to facilitate an orderly and smooth proceeding during the oral argument.71
On June 6, 2018, Falcis filed his Compliance72 with the show-cause order. In a July 3, 2018 Resolution,73 this Court found Falcis
guilty of direct contempt of court:
Atty. Falcis acted in a contumacious manner during the June 5, 2018 preliminary conference.
Atty. Falcis is not an uninformed layperson. He has been a member of the Philippine Bar for a number of years. As an officer of the
court, he is duty bound to maintain towards this Court a respectful attitude essential to the proper administration of justice. He is
charged with knowledge of the proper manner by which lawyers are to conduct themselves during judicial proceedings. His
Lawyer's Oath and the Code of Professional Responsibility exhort him to maintain the requisite decency and to afford dignity to
this Court.
Lawyers must serve their clients with competence and diligence. Under Rule 18.02 of the Code of Professional Responsibility, "[a]
lawyer shall not handle any legal matter without adequate preparation." Atty. Falcis' appearance and behavior during the
preliminary conference reveal the inadequacy of his preparation. Considering that the Advisory for Oral Arguments was served
on the parties three (3) months prior to the preliminary conference, it was inexcusably careless for any of them to appear before
this Court so barely prepared.
The preliminary conference was not mere make-work. Rather, it was essential to the orderly conduct of proceedings and, In the same Resolution, Falcis, Atty. Angeles, Atty. Guangko, and Atty. Maranan were all required96 to show cause why they
ultimately, to the judicious disposition of this case. Appearance in it by counsels and parties should not be taken lightly. should not be cited in indirect contempt for failing to comply with this Court's June 26 2018 Order.97

Atty. Falcis jeopardized the cause of his clients. Without even uttering a word, he recklessly courted disfavor with this Court. His On August 9, 2018, Atty. Angeles, Atty. Guangko, and Atty. Maranan filed their Manifestation with Motion for Leave to Admit
bearing and demeanor were a disservice to his clients and to the human rights advocacy he purports to represent.74 (Citation Memorandum.98 They, along with Falcis, filed their Manifestation and Compliance with the August 7, 2018 Resolution on August
omitted) 13, 2018.99

Falcis was admonished to properly conduct himself in court and to be more circumspect of the duties attendant to his being a For this Court's resolution is the issue of whether or not the Petition and/or the Petition-in-Intervention are properly the subject
lawyer. He was sternly warned that any further contemptuous acts shall be dealt with more severely.75 of the exercise of our power of judicial review. Subsumed under this are the following procedural issues:

On June 8, 2018, Ronaldo T. Reyes, Jeremy I. Gatdula, Cristina A. Montes, and Rufino Policarpio III (intervenors-oppositors) filed a First, whether or not the mere passage of the Family Code creates an actual case or controversy reviewable by this Court;
Motion for Leave to Intervene and to Admit the Opposition-in-Intervention.76 They claim that they have a legal interest in this
case since the grant of the Petition would run counter to their religious beliefs.77
Second, whether or not the self-identification of petitioner Jesus Nicardo M. Falcis III as a member of the LGBTQI+ community
gives him standing to challenge the Family Code;
In their Opposition-in-Intervention,78 they claim that this Court has no jurisdiction to act upon the Petition, none of the
requisites of justiciability having been met. They further assert that they have standing to intervene in these proceedings as the
proposed definition of marriage in the Petition is contrary to their religious beliefs and religious freedom as guaranteed in Article Third, whether or not the Petition-in-Intervention cures the procedural defects of the Petition; and
III, Sections 4 and 5 of the Constitution. They claim to be concerned taxpayers who seek to uphold the Constitution.79
Fourth, whether or not the application of the doctrine of transcendental importance is warranted.
Intervenors-oppositors argue that granting the Petition would be tantamount to judicial legislation, thus violating the doctrine of
separation of powers. They claim that the definition of marriage in the Family Code was a valid exercise of legislative prerogative Should the Petition and/or Petition-in-Intervention show themselves to be appropriate subjects of judicial review, this Court may
which this Court must uphold.80 Further, there is no grave abuse of discretion on the part of the Civil Registrar General, as there proceed to address the following substantive issues:
was no violation of the equal protection clause or of Falcis' right to liberty. They claim that there are substantial differences
between opposite-sex and same-sex unions that account for state recognition only of the former, and that such limitation is for
the common good.81 For them, children's welfare is a compelling state interest justifying intrusion into certain liberties, First, whether or not the right to marry and the right to choose whom to marry are cognates of the right to life and liberty;
including the non-recognition of same-sex marriage. They assert that there was no violation of the right to privacy since Falcis
and petitioners-intervenors "are not prohibited from publicly identifying as homosexuals or from entering into same-sex Second, whether or not the limitation of civil marriage to opposite-sex couples is a valid exercise of police power;
relationships[.]"82

On June 13, 2018, Atty. Aldrich Fitz U. Dy (Atty. Dy), Atty. Keisha Trina M. Guangko (Atty. Guangko), Atty. Darwin P. Angeles (Atty.
Angeles), and Atty. Alfredo B. Molo III (Atty. Molo) entered their appearance as co-counsels for Falcis and petitioners-intervenors
.83
The Civil Registrar General filed its Supplemental Comment with Leave of Court84 on June 14, 2018. Addressing the substantive
issues of the Petition, it claims that since the Constitution only contemplates opposite-sex marriage in Article XV, Section 2 and
other related provisions, Articles 1 and 2 of the Family Code are constitutional.85
Oral arguments were conducted on June 19, 201886 and June 26, 2018.87 On June 26, 2018, this Court ordered the parties to
submit their respective memoranda within 30 days.88
Third, whether or not limiting civil marriages to opposite-sex couples violates the equal protection clause;
Fourth, whether or not denying same-sex couples the right to marry amounts to a denial of their right to life and/or liberty
without due process of law;
Fifth, whether or not sex-based conceptions of marriage violate religious freedom;
Sixth, whether or not a determination that Articles 1 and 2 of the Family Code are unconstitutional must necessarily carry with it
the conclusion that Articles 46(4) and 55(6) of the Family Code, on homosexuality and lesbianism as grounds for annulment and
legal separation, are also unconstitutional; and

On July 25, 2018, both the Civil Registrar General89 and intervenors-oppositors90 filed their respective Memoranda, which were Finally, whether or not the parties are entitled to the reliefs prayed for.
noted in this Court's July 31, 2018 Resolution.91
I
On July 26, 2018, rather than file their memoranda, Falcis and petitioners-intervenors, through counsels Atty. Angeles, Atty.
Guangko, and Atty. Christoper Ryan R. Maranan (Atty. Maranan) of Molo Sia Dy Tuazon Ty and Coloma Law Offices, filed a Motion
From its plain text, the Constitution does not define or restrict marriage on the basis of sex,100 gender,101 sexual
for Extension of Time to File Memorandum.92 Without this Court's prior favorable action on their Motion for Extension, they filed
orientation,102 or gender identity or expression.103
their Memorandum93 on August 3, 2018.

Article XV of the 1987 Constitution concerns the family and operates in conjunction with Article II, Section 12.104 Article XV,
In its August 7, 2018 Resolution,94 this Court denied the Motion for Extension and dispensed with Falcis' and petitioners-
Section 1 pertains to the family in general, identifying it "as the foundation of the nation[,]" and articulates the State's overarching
intervenors' Memorandum. The Resolution read, in part:
commitment to "strengthen its solidarity and actively promote its total development."105 Article XV, Section 2 concerns
marriage, in particular, and articulates a broad commitment to protecting its inviolability as a social institution. It states:
[W]ith the exception of Intervenor-Oppositor Atty. Fernando P. Perito, the other parties in this case have fully complied with this
Court's Order within the imposed deadline. These show that even considering the complexity of issues to be resolved in this case,
SECTION 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
the parties are capable of submitting and filing their respective Memoranda.95
Lacking a manifestly restrictive textual definition of marriage, the Constitution is capable of accommodating a contemporaneous
understanding of sexual orientation, gender identity and expression, and sex characteristics (SOGIESC). The plain text and
meaning of our constitutional provisions do not prohibit SOGIESC. These constitutional provisions in particular, and the
Constitution in general, should be read through the lens of "a holistic approach in legal interpretation"106:
The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider context and the interplay of
the historical, the contemporary, and even the envisioned. Judicial interpretation entails the convergence of social realities and
social ideals. The latter are meant to be effected by the legal apparatus, chief of which is the bedrock of the prevailing legal order:
the Constitution. Indeed, the word in the vernacular that describes the Constitution — saligan — demonstrates this imperative of
constitutional primacy.107
As a social institution, the family is shaped by economic forces and other social structural forces, such as ideologies and
politics.108 For instance, the discovery of agriculture has transformed the concept of family and marriage by elevating the
ownership of property as a central consideration:
[T]he right to own land and pass it on to heirs meant that women's childbearing abilities and male domination became more
important. Rather than kinship, marriage became the center of family life and was increasingly based on a formal contractual
relationship between men, women, and their kinship groups. The property and gender implications of marriage are evident in the
exchange of gifts between spouses and families and clearly defined rules about the rights and responsibilities of each marital
partner. During the Middle Ages, economic factors influenced marital choices more than affection, even among the poor, and
women's sexuality was treated as a form of property (Coltrane and Adams 2008:54). Wealth and power inequalities meant that
marriages among the elite and/or governing classes were based largely on creating political alliances and producing male
children (Coontz 2005). Ensuring paternity became important in the transfer of property to legitimate heirs, and the rights and
sexuality of women were circumscribed. Ideologies of male domination prevailed, and women, especially those who were
married to powerful men, were typically treated like chattel and given very few rights.109 (Emphasis supplied)
Consequently, this has placed great significance on procreation as a purpose or end of the family.
Then, in the 18th century, women and children were seen as capable of operating factory machinery and, thus, entered the
factory labor system to meet the surge in the demand for workers.110 This "potential for economic independence altered
families by making children less reliant on families for their survival and women freer from male domination."111
Eventually, the economic transition that came with the spread of industrialization resulted in massive social, geographical, and
familial changes:
Industrialization shifted populations from rural to urban areas in search of work; for example, in 1830 most Americans still lived
in rural areas and were employed in farming, but by 1930, most lived in towns and cities and were engaged in non-farming
occupations. Urbanization, immigration, and adjustment to the industrial labor market took a toll on the stability of families.
Industrial production undermined the family-based economy, food production technologies reduced the need for farmers, and
essentials once produced by families were now produced in massive quantities in factories. New professional institutions
emerged (e.g., public schools, hospitals) and assumed responsibility for many of the functions once fulfilled by families, ultimately
making people less dependent on the family and leading some social scientists to predict its demise.112
This reorganization of work in the industrial economy "disrupted the gender order of many families by pulling women into the
paid labor force and spawning new visions of gender equality."113 As a consequence, marriage based on free choice, romantic
love, and companionship developed.114
Eventually, the modern family was seen primarily as:
. . . a nuclear, marriage-based entity in which men provided economically for their families and women performed housework and
took care of children. . . . Socially defined notions of masculinity and femininity reflected these gendered family roles; for example,
men were characterized as being naturally aggressive and rational—traits valuable in the competitive area of work—and women
as being essentially submissive, domestic, and nurturing.115
The evolution of the social concept of family reveals that heteronormativity in marriage is not a static anthropological fact. The
perceived complementarity of the sexes is problematized by the changing roles undertaken by men and women, especially under
the present economic conditions.
To continue to ground the family as a social institution on the concept of the complementarity of the sexes is to perpetuate the
discrimination faced by couples, whether opposite-sex or same-sex, who do not fit into that mold. It renders invisible the lived
realities of families headed by single parents, families formed by sterile couples, families formed by couples who preferred not to
have children, among many other family organizations. Furthermore, it reinforces certain gender stereotypes within the family.
II
In a proper case, a good opportunity may arise for this Court to review the scope of Congress' power to statutorily define the
scope in which constitutional provisions are effected. This is not that case. The Petition before this Court does not present an
actual case over which we may properly exercise our power of judicial review.
There must be narrowly-framed constitutional issues based on a justiciable controversy:
Contemporaneous construction and aids that are external to the text may be resorted to when the text is capable of multiple,
viable meanings. It is only then that one can go beyond the strict boundaries of the document. Nevertheless, even when meaning
has already been ascertained from a reading of the plain text, contemporaneous construction may serve to verify or validate the
meaning yielded by such reading.
Limited resort to contemporaneous construction is justified by the realization that the business of understanding the
Constitution is not exclusive to this Court. The basic democratic foundation of our constitutional order necessarily means that all
organs of government, and even the People, read the fundamental law and are guided by it. When competing viable
interpretations arise, a justiciable controversy may ensue requiring judicial intervention in order to arrive with finality at which
interpretation shall be sustained. To remain true to its democratic moorings, however, judicial involvement must remain guided
by a framework or deference and constitutional avoidance. This same principle underlies the basic doctrine that courts are to
refrain from issuing advisory opinions. Specifically as regards this Court, only constitutional issues that are narrowly framed,
sufficient to resolve an actual case, may be entertained.116 (Citations omitted)
Founded on the principle of supremacy of law, judicial review is the courts' power to decide on the constitutionality of exercises
of power by the other branches of government and to enforce constitutional rights.117
Judicial review is inherent in this Court's judicial power. Article VIII, Section 1 of the 1987 Constitution states:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
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.
Article VIII, Section 1 expands the territory of justiciable questions and narrows the off-limits area of political questions.
In Estrada v. Desierto:118
To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of
legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation
of powers and on prudential considerations, continue to be refined in the mills of constitutional law. In the United States, the
most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962
case of Baker v. Carr, viz:
". . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is
inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's
presence. The doctrine of which we treat is one of political questions', not of political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and
outer perimeters of a political question. Our leading case is Tañada v. Cuenco, where this Court, through former Chief Justice
Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular
measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded
the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and
enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of
doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called
political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to ". . .
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ (of habeas corpus) or the extension thereof. . . ."119 (Emphasis in the original, citations
omitted)
Nonetheless, the expansion of this Court's judicial power is by no means an abandonment of the need to satisfy the basic
requisites of justiciability.120 In Provincial Bus Operators Association of the Philippines v. Department of Labor and
Employment:121
As a rule, "the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved
in a justiciable controversy and is essential to the protection of the rights of the parties concerned." A controversy is said to be
justiciable if: first, there is an actual case or controversy involving legal rights that are capable of judicial determination; second,
the parties raising the issue must have standing or locus standi to raise the constitutional issue; third, the constitutionality must
be raised at the earliest opportunity; and fourth, resolving the constitutionality must be essential to the disposition of the
case.122
Fundamentally, for this Court to exercise the immense power that enables it to undo the actions of the other government
branches, the following requisites must be satisfied: (1) there must be an actual case or controversy involving legal rights that are
capable of judicial determination; (2) the parties raising the issue must have standing or locus standi to raise the constitutional
issue; (3) the constitutionality must be raised at the earliest possible opportunity, thus ripe for adjudication; and (4) the matter of
constitutionality must be the very lis mota of the case, or that constitutionality must be essential to the disposition of the case.123
III
This Court's constitutional mandate does not include the duty to answer all of life's questions.124 No question, no matter how
interesting or compelling, can be answered by this Court if it cannot be shown that there is an "actual and an antagonistic
assertion of rights by one party against the other in a controversy wherein judicial intervention is unavoidable."125
This Court does not issue advisory opinions.126 We do not act to satisfy academic questions or dabble in thought experiments.
We do not decide hypothetical, feigned, or abstract disputes, or those collusively arranged by parties without real adverse
interests.127 If this Court were to do otherwise and jump headlong into ruling on every matter brought before us, we may close
off avenues for opportune, future litigation. We may forestall proper adjudication for when there are actual, concrete, adversarial
positions, rather than mere conjectural posturing:
Even the expanded jurisdiction of this Court under Article VIII, Section 1 does not provide license to provide advisory opinions.
An advisory opinion is one where the factual setting is conjectural or hypothetical. In such cases, the conflict will not have
sufficient concreteness or adversariness so as to constrain the discretion of this Court. After all, legal arguments from concretely
lived facts are chosen narrowly by the parties. Those who bring theoretical cases will have no such limits. They can argue up to
the level of absurdity. They will bind the future parties who may have more motives to choose specific legal arguments. In other
words, for there to be a real conflict between the parties, there must exist actual facts from which courts can properly determine
whether there has been a breach of constitutional text.128 (Emphasis in the original, citation omitted)
As this Court makes "final and binding construction[s] of law[,]"129 our opinions cannot be mere counsel for unreal conflicts
conjured by enterprising minds. Judicial decisions, as part of the legal system,130 bind actual persons, places, and things. Rulings
based on hypothetical situations weaken the immense power of judicial review.131
IV
It is not enough that laws or regulations have been passed or are in effect when their constitutionality is questioned. The judiciary
interprets and applies the law. "It does not formulate public policy, which is the province of the legislative and executive branches
of government."132 Thus, it does not—by the mere existence of a law or regulation—embark on an exercise that may render
laws or regulations inefficacious.
Lest the exercise of its power amount to a ruling on the wisdom of the policy imposed by Congress on the subject matter of the
law, the judiciary does not arrogate unto itself the rule-making prerogative by a swift determination that a rule ought not exist.
There must be an actual case, "a contrast of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."133
IV (A)
In Philippine Press Institute, Inc. v. Commission on Elections,134 the petitioner did not assert a specific act committed against it
by the Commission on Elections in enforcing or implementing the questioned law. This Court found that there was no actual case
or controversy.
In Garcia v. Executive Secretary,135 the core issue that the petitioner prayed for this Court to resolve was deemed to be delving
into the policy or wisdom underlying the law. This Court noted that the full discretionary authority to formulate policy was
vested in Congress.
In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,136 the possibility of abuse in the execution of law
was deemed insufficient to trigger judicial review. This Court emphasized that there must first be an actual act of abuse.
In Republic of the Philippines v. Roque,137 no actual case or controversy existed as the respondents could not point to an
instance when the assailed law was said to have been implemented against them.
In Corales v. Republic,138 the petition to assail an executive issuance was found to be premature and "based entirely on surmises,
conjectures[,] and speculations."
In our 2018 ruling in Provincial Bus Operators Association of the Philippines,139 an alleged diminution of the petitioners'
income, wholly based on speculation, did not warrant the exercise of judicial review.
IV (B)
There are instances when this Court exercised the power of judicial review in cases involving newly-enacted laws.
In Pimentel, Jr. v. Aguirre,140 this Court fixed the point at which a legal issue matures into an actual case or controversy—at the
pre-occurrence of an "overt act":141
In the unanimous en banc case Tañada v. Angara, this Court held that when an act of the legislative department is seriously
alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. By the mere enactment of the
questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial
duty. Said the Court:
"In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt
raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the dispute. . . . The duty (to adjudicate) remains to assure
that the supremacy of the Constitution is upheld.' Once a 'controversy as to the application or interpretation of a constitutional
provision is raised before this Court . . ., it becomes a legal issue which the Court is bound by constitutional mandate to decide. '
....
"As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its sacred duty and
authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government."
In the same vein, the Court also held in Tatad v. Secretary of the Department of Energy:
". . . Judicial power includes not only the duty of the courts to settle actual controversies involving rights which are legally
demandable and enforceable, but also the duty to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of government. The courts, as guardians of the
Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed
by the fundamental law. Where the statute violates the Constitution, it is not only the right but the duty of the judiciary to declare
such act unconstitutional and void."
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws, as in the present case, settling the dispute becomes the duty and the responsibility
of the courts.142 (Emphasis supplied, citations omitted)
Thus, in Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain,143 this
Court stated: "[t]hat the law or act in question is not yet effective does not negate ripeness."144
Subsequently, this Court, in Southern Hemisphere Engagement Network, Inc.,145 stated:
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices
to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must
be sufficient facts to enable the Court to intelligently adjudicate the issues.146 (Emphasis in the original)
This Court's liberality in scrutinizing a petition for an actual case or controversy was more recently illustrated
in Belgica and Spouses Imbong v. Ochoa.147 In Belgica, this Court found that there was an actual case or controversy:
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the
constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for adjudication since the
challenged funds and the provisions allowing for their utilization — such as the 2013 GAA for the PDAF, PD 910 for the
Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund — are currently existing and
operational; hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of these
public funds.148
Belgica was followed by Araullo v. Aquino III,149 where this Court stated:
An actual and justiciable controversy exists in these consolidated cases. The incompatibility of the perspectives of the parties on
the constitutionality of the DAP and its relevant issuances satisfy the requirement for a conflict between legal rights. The issues
being raised herein meet the requisite ripeness considering that the challenged executive acts were already being implemented
by the DBM, and there are averments by the petitioners that such implementation was repugnant to the letter and spirit of the
Constitution. Moreover, the implementation of the DAP entailed the allocation and expenditure of huge sums of public funds. The
fact that public funds have been allocated, disbursed or utilized by reason or on account of such challenged executive acts gave
rise, therefore, to an actual controversy that is ripe for adjudication by the Court.150
In Spouses Imbong, this Court found that there was an actual case or controversy, despite the Petition being a facial challenge:
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH Law cannot be
challenged "on its face" as it is not a speech regulating measure.
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment. These
include religious freedom, freedom of the press, and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances. After all, the fundamental right to religious freedom, freedom of the press and peaceful
assembly are but component rights of the right to one's freedom of expression, as they are modes which one's thoughts are
externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some
modifications. While this Court has withheld the application of facial challenges to strictly penal statutes, it has expanded its
scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights.
The underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government. Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life, speech
and religion and other fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority
to take cognizance of these kindred petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss
these petitions on the simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive
branch of government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino
people.151 (Emphasis in the original, citations omitted)
IV (C)
Here, the Petition cannot be entertained as a facial challenge to Articles 1, 2, 46(4), and 55(6) of the Family Code.
A facial challenge is "an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities."152 It is distinguished from "as-applied" challenges, which consider
actual facts affecting real litigants.153
Facial challenges are only allowed as a narrow exception to the requirement that litigants must only present their own cases,
their extant factual circumstances, to the courts. In David v. Arroyo:154
[F]acial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;" The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is
the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court. A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails,
the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates
the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law's "very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third
parties.155
However, in Disini, Jr. v. Secretary of Justice,156 this Court distinguished those facial challenges that could be properly
considered as presenting an actual case or controversy:
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, "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.
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.157 (Citations omitted)
To be entertained by this Court, a facial challenge requires a showing of curtailment of the right to freedom of expression,
because its basis is that an overly broad statute may chill otherwise constitutional speech.158
The imperative of justiciability was reiterated in Philippine Constitution Association v. Philippine Government:159
In Province of North Cotabato v. GRP (MOA-AD case), . . . the Court explained the limits of the power of judicial review and the
prerequisites for the judicial determination of a case.
In [that] case, the Court rejected the argument of the Solicitor General that there was no justiciable controversy that was ripe for
adjudication. . . . The Court ruled that "[w]hen an act of a branch of government is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute." Moreover, in the MOA-AD
case, the Executive was about to sign the initialed MOA-AD with the MILF in Kuala Lumpur, Malaysia in the presence of
representatives of foreign states. Only the prompt issuance by this Court of a temporary restraining order stopped the signing,
averting the implications that such signing would have caused.
In the present case, however, the Court agrees with the Solicitor General that there is no actual case or controversy requiring a
full-blown resolution of the principal issue presented by petitioners.
Unlike the unconstitutional MOA-AD, the CAB, including the FAB, mandates the enactment of the Bangsamoro Basic Law in order
for such peace agreements to be implemented. In the MOA-AD case, there was nothing in the MOA-AD which required the passage
of any statute to implement the provisions of the MOA-AD, which in essence would have resulted in dramatically dismembering
the Philippines by placing the provinces and areas covered by the MOA-AD under the control and jurisdiction of a Bangsamoro
Juridical Entity.
....
Further, under the MOA-AD, the Executive branch assumed the mandatory obligation to amend the Constitution to conform to the
MOA-AD. The Executive branch guaranteed to the MILF that the Constitution would be drastically overhauled to conform to the
MOA-AD. ... the Executive branch usurped the sole discretionary power of Congress to propose amendments to the Constitution
as well as the exclusive power of the sovereign people to approve or disapprove such proposed amendments. . . . such ultra
vires commitment by the Executive branch constituted grave abuse of discretion amounting to lack or excess of jurisdiction.
....
Even if there were today an existing bill on the Bangsamoro Basic Law, it would still not be subject to judicial review. The Court
held in Montesclaros v. COMELEC that it has no power to declare a proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power of judicial review cannot be
exercised in vacuo. As the Court in Montesclaros noted, invoking Section 1, Article VIII of the Constitution, there can be no
justiciable controversy involving the constitutionality of a proposed bill. The power of judicial review comes into play only after
the passage of a bill, and not before. Unless enacted into law, any proposed Bangsamoro Basic Law pending in Congress is not
subject to judicial review.160 (Citations omitted)
Ultimately, petitions before this Court that challenge an executive or legislative enactment must be based on actual facts,
sufficiently for a proper joinder of issues to be resolved.161 If litigants wish to assail a statute or regulation on its face, the
burden is on them to prove that the narrowly-drawn exception for an extraordinary judicial review of such statute or regulation
applies.
When faced with speculations—situations that have not yet fully ripened into clear breaches of legally demandable rights or
obligations—this Court shall refrain from passing upon the case. Any inquiries that may be made may be roving, unlimited, and
unchecked.162 In contrast to political branches of government, courts must deal with specificities:
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.163
V
Jurisprudence on justiciability in constitutional adjudication has been unequivocal on the requirement of actual cases and
controversies. In Angara v. Electoral Commission:164
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers?
The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is
limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and legislative departments of the
government.165 (Emphasis supplied)
Even now, under the regime of the textually broadened power of judicial review articulated in Article VIII, Section 1 of the 1987
Constitution, the requirement of an actual case or controversy is not dispensed with.166 In Association of Medical Clinics for
Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc.:167
Basic in the exercise of judicial power — whether under the traditional or in the expanded setting — is the presence of an actual
case or controversy. For a dispute to be justiciable, a legally demandable and enforceable right must exist as basis, and must be
shown to have been violated.
....
The Court's expanded jurisdiction — itself an exercise of judicial power — does not do away with the actual case or controversy
requirement in presenting a constitutional issue, but effectively simplifies this requirement by merely requiring a prima
facie showing of grave abuse of discretion in the assailed governmental act.168 (Emphasis supplied, citation omitted)
V(A)
It is the parties' duty to demonstrate actual cases or controversies worthy of judicial resolution.
Pleadings before this Court must show a violation of an existing legal right or a controversy that is ripe for judicial determination.
In a concurring opinion in Belgica:169
Basic in litigation raising constitutional issues is the requirement that there must be an actual case or controversy. This Court
cannot render an advisory opinion. We assume that the Constitution binds all other constitutional departments,
instrumentalities, and organs. We are aware that in the exercise of their various powers, they do interpret the text of the
Constitution in the light of contemporary needs that they should address. A policy that reduces this Court to an adviser for official
acts by the other departments that have not yet been done would unnecessarily tax our resources. It is inconsistent with our role
as final arbiter and adjudicator and weakens the entire system of the Rule of Law. Our power of judicial review is a duty to make a
final and binding construction of law. This power should generally be reserved when the departments have exhausted any and all
acts that would remedy any perceived violation of right. The rationale that defines the extent of our doctrines laying down
exceptions to our rules on justiciability are clear: Not only should the pleadings show a convincing violation of a right, but the
impact should be shown to be so grave, imminent, and irreparable that any delayed exercise of judicial review or deference
would undermine fundamental principles that should be enjoyed by the party complaining or the constituents that they
legitimately represent.170
Facts are the basis of an actual case or controversy. To reiterate, "there must be sufficient facts to enable the Court to intelligently
adjudicate the issues."171 Thus, as illustrated in Southern Hemisphere Engagement Network, Inc.:
Petitioners' obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way
approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion,
which is not its function.
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend
to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of
ripeness.
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the
surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be
abused. Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving
rights which are legally demandable and enforceable.172 (Emphasis in the original, citations omitted)
V(B)
Parties coming to court must show that the assailed act had a direct adverse effect on them. In Lozano v. Nograles:173
An aspect of the "case-or-controversy" requirement is the requisite of "ripeness". In the United States, courts are centrally
concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not
occur at all. Another approach is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial
decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of
ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it. An alternative road to review similarly taken would be
to determine whether an action has already been accomplished or performed by a branch of government before the courts may
step in.174 (Emphasis supplied, citations omitted)
VI
The need to demonstrate an actual case or controversy is even more compelling in cases concerning minority groups. This Court
is a court of law. We are equipped with legal expertise, but we are not the final authority in other disciplines. In fields such as
politics, sociology, culture, and economics, this Court is guided by the wisdom of recognized authorities, while being steered by
our own astute perception of which notions can withstand reasoned and reasonable scrutiny. This enables us to filter
unempirical and outmoded, even if sacrosanct, doctrines and biases.
This Court exists by an act of the sovereign Filipino people who ratified the Constitution that created it. Its composition at any
point is not the result of a popular election reposing its members with authority to decide on matters of policy. This Court cannot
make a final pronouncement on the wisdom of policies. Judicial pronouncements based on wrong premises may unwittingly
aggravate oppressive conditions.
The scrutiny on the existence of actual facts becomes most necessary when the rights of marginalized, minority groups have been
thrust into constitutional scrutiny by a party purporting to represent an entire sector.
VI (A)
In Ang Ladlad LGBT Party v. Commission on Elections,175 this Court acknowledged that the LGBTQI+ community has historically
"borne the brunt of societal disapproval":
We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the
brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure — religious beliefs, convictions about
the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore,
these "generally accepted public morals" have not been convincingly transplanted into the realm of law.176 (Citation omitted)
A common position taken by those who socially disapprove of the LGBTQI+ community is that this community violates the
complementarity of the sexes. Relying on natural law, the concept asserts that the sexual differences between a man and a
woman are constitutive of one's identity, out of which the family is created.177
Consequently, this views the sexual orientation, gender identity, and gender expression of members of the LGBTQI+ community
as unnatural, purely ideological, or socially constructed. These identities are criticized for being "often founded on nothing more
than a confused concept of freedom in the realm of feelings and wants, or momentary desires provoked by emotional impulses
and the will of the individual, as opposed to anything based on the truths of existence."178 Lacking "an essential and
indispensable finality"179—that is, procreative possibility—"homosexual acts are intrinsically disordered and can in no case be
approved of."180
However, contrary to this view, same-sex conduct is a natural phenomenon:
Homosexuality has been observed in most vertebrate groups, and also among insects, spiders, crustaceans, octopi and parasitic
worms. The phenomenon has been reported in close to 1000* animal species, and is well documented for half that number, but
the real extent is probably much higher.
The frequency of homosexuality varies from species to species. In some species, homosexuality has never been reported, while in
others the entire species is bisexual. In zoos around 1 in 5 pairs of king penguins are of the same sex. The record is held by orange
fronted parakeets, where roughly half of all pairs in captivity are of the same sex.181
At the moment, there is no consensus among scientists about the exact reasons as to how an individual develops a particular
sexual orientation.182 It has been suggested in scientific studies that sexual orientation is polygenetic and sociocultural:
Although we emphasize the polygenicity of the genetic effects on same-sex sexual behavior, we identified five SNPs whose
association with same-sex sexual behavior reached genome-wide significance. Three of these replicated in other independent
samples whose measures related to identity and attraction rather than behavior. These SNPs may serve to generate new lines of
enquiry. In particular, the finding that one of the replicated SNPs (rs28371400-15q21.3) is linked to male pattern balding and is
nearby a gene (TCF12) relevant to sexual differentiation strengthens the idea that sex-hormone regulation may be involved in the
development of same-sex sexual behavior. Also, that another replicated SNP (rs34730029-11q12.1) is strongly linked to several
genes involved in olfaction raises intriguing questions. Although the underlying mechanism at this locus is unclear, a link
between olfaction and reproductive function has previously been established. Individuals with Kallmann syndrome exhibit both
delayed or absent pubertal development and an impaired sense of smell because of the close developmental origin of fetal
gonadotropin-releasing hormone and olfactory neurons.
Our study focused on the genetic basis of same-sex sexual behavior, but several of our results point to the importance of
sociocultural context as well. We observed changes in prevalence of reported same-sex sexual behavior across time, raising
questions about how genetic and sociocultural influences on sexual behavior might interact. We also observed partly different
genetic influences on same-sex sexual behavior in females and males; this could reflect sex differences in hormonal influences on
sexual behavior (for example, importance of testosterone versus estrogen) but could also relate to different sociocultural
contexts of female and male same-sex behavior and different demographics of gay, lesbian, and bisexual groups. With these
points in mind, we acknowledge the limitation that we only studied participants of European ancestry and from a few Western
countries; research involving larger and more diverse samples will afford greater insight into how these findings fare across
different sociocultural contexts.
Our findings provide insights into the biological underpinnings of same-sex sexual behavior but also underscore the importance
of resisting simplistic conclusions—because the behavioral phenotypes are complex, because our genetic insights are
rudimentary, and because there is a long history of misusing genetic results for social purposes.183 (Citations omitted)
Sexual orientation has also been correlated with physiological features in the brain. In 1991, neuroscientist Simon LeVay (LeVay)
conducted research on "the anterior hypothalamus, which contains four cell groups called the interstitial nuclei of the anterior
hypothalamus (INAH)."184 LeVay's "research found that a particular group of neurons called INAH3 was significantly larger in
heterosexual men than in homosexual men."185 Other researchers that same year also proposed that the anterior commissure, a
bundle of nerves that connects a small region of the right and left sides of the brain, "is bigger in homosexual men than in
heterosexual men."186 These studies propose that there are anatomical differences between men of different sexual orientations.
To insulate the human species from the natural phenomenon of same-sex conduct is to reinforce an inordinately anthropocentric
view of nature. Giving primacy to "human reason and sentience[,]"187 anthropocentrism is "the belief that there is a clear and
morally relevant dividing line between humankind and the rest of nature, that humankind is the only principal source of value or
meaning in the world."188
This "human-nature dualism contains a problematic inconsistency and contradiction,"189 for it rejects the truth that human
beings are part of nature.190 Further, human superiority is conceived from the lens of human cognitive abilities191 and imposes
a socially constructed moral hierarchy between human beings and nature.192
Human-nature dualism lays the foundation "for a cultural context that legitimized domination. . . . [which] is at the root of other
modern 'imaginary oppositions' such as the split between reason-emotion, mind-body, and masculine-feminine."193 This
dichotomy propels numerous forms of gender oppression in that anything attached to reason and culture is associated with
masculinity, while anything attached to emotion, body, and nature is associated with femininity.194 This anthropocentric view
can only manifest itself "in a violent and self-destructive manner, fatal both to human and non-human life[.]"195
VI (B)
In the realm of the social sciences, a great number of 20th-century psychoanalysts unfortunately viewed homosexuality as
something pathological.196 This influenced the field of American psychiatry in the mid-20th century that when the American
Psychological Association published the first edition of the Diagnostic and Statistical Manual in 1952, "it listed all the conditions
psychiatrists then considered to be a mental disorder. DSM-I classified 'homosexuality' as a 'sociopathic personality
disturbance.'"197
It was not until the research of biologist Alfred Kinsey and other scientists challenged the orthodoxy that homosexuality was
delisted as a mental disorder in the next iteration of the Diagnostic and Statistical Manual:
The Kinsey reports, surveying thousands of people who were not psychiatric patients, found homosexuality to be more common
in the general population than was generally believed, although his now-famous '10%' statistic is today believed to be closer to
1%-4%. This finding was sharply at odds with psychiatric claims of the time that homosexuality was extremely rare in the
general population. Ford and Beach's study of diverse cultures and of animal behaviors, confirmed Kinsey's view that
homosexuality was more common than psychiatry maintained and that it was found regularly in nature. In the late 1950s, Evelyn
Hooker, a psychologist, published a study in which she compared psychological test results of 30 gay men with 30 heterosexual
controls, none of whom were psychiatric patients. Her study found no more signs of psychological disturbances in the gay male
group, a finding that refuted psychiatric beliefs of her time that all gay men had severe psychological disturbances.198
However, the official removal of homosexuality from the Diagnostic and Statistical Manual as a mental disorder was not the last
word on the subject. Homosexuality was still considered a "disorder," and it was not until several years later that all traces of
what was mistakenly thought to be a "disease" would be completely removed from the manual:
In any event, the events of 1973 did not immediately end psychiatry's pathologizing of some presentations of homosexuality. For
in 'homosexuality's' place, the DSM-II contained a new diagnosis: Sexual Orientation Disturbance (SOD). SOD regarded
homosexuality as an illness if an individual with same-sex attractions found them distressing and wanted to change. The new
diagnosis legitimized the practice of sexual conversion therapies (and presumably justified insurance reimbursement for those
interventions as well), even if homosexuality per se was no longer considered an illness. The new diagnosis also allowed for the
unlikely possibility that a person unhappy about a heterosexual orientation could seek treatment to become gay.
SOD was later replaced in DSM-III by a new category called 'Ego Dystonic Homosexuality' (EDH). However, it was obvious to
psychiatrists more than a decade later that the inclusion first of SOD, and later EDH, was the result of earlier political
compromises and that neither diagnosis met the definition of a disorder in the new nosology. Otherwise, all kinds of identity
disturbances could be considered psychiatric disorders. 'Should people of color unhappy about their race be considered mentally
ill?' critics asked. What about short people unhappy about their height? Why not ego-dystonic masturbation? As a result, ego-
dystonic homosexuality was removed from the next revision, DSM-III-R, in 1987. In so doing, the APA implicitly accepted a
normal variant view of homosexuality in a way that had not been possible fourteen years earlier.199 (Citations omitted)
Homosexuality was officially removed from the Diagnostic and Statistical Manual in 1986.200 According to the American
Psychological Association:
[L]esbian, gay and bisexual orientations are not disorders. Research has found no inherent association between any of these
sexual orientations and psychopathology. Both heterosexual behavior and homosexual behavior are normal aspects of human
sexuality. Both have been documented in many different cultures and historical eras. Despite the persistence of stereotypes that
portray lesbian, gay and bisexual people as disturbed, several decades of research and clinical experience have led all mainstream
medical and mental health organizations in this country to conclude that these orientations represent normal forms of human
experience. Lesbian, gay and bisexual relationships are normal forms of human bonding. Therefore, these mainstream
organizations long ago abandoned classifications of homosexuality as a mental disorder.201 (Emphasis supplied)
The American Psychological Association's revision marked the "beginning of the end of organized medicine's official participation
in the social stigmatization of homosexuality"202 as similar movements also followed. In 1990, the World Health Organization
removed homosexuality per se from the International Classification of Diseases.
Social forces have likewise shaped the use of penal laws to further discrimination and persecution of the LGBTQI+ community:
To a large extent, the religious and medical discourses became the bases for legal or state-prescribed discourses in early Western
societies. As a result, the argument that homosexuality is both a sin and a sickness is strengthened. An illustration of this would
be the laws against same-sex relations in colonies of the British Empire during the 19th century. The inclusion of Section 377,
which refers to carnal intercourse between same-sex individuals, as an offense "against the order of nature" and "unnatural" is a
clear indication that homosexuality is viewed as both a sin and a sickness (Carey, 2011; Kannabiran & Singh, 2009). Although the
said legislation did not explicitly mention male-to-male or female-to-female sexual relations as a crime, they are considered to be
"against the order of nature" and punishable by law (Indian Penal Code, 1860). Among the countries that adopted this law were
Australia, Bangladesh, Bhutan, Brunei, Fiji, Hong Kong, India, Kiribati, Malaysia, Maldives, Marshall Islands, Myanmar (Burma),
Nauru, New Zealand, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa in
the Asia Pacific region; and Botswana, Gambia, Ghana, Kenya, Tanzania, Uganda, Zambia, and Zimbabwe in the African region
(Human Rights Watch, 2008). Germany, one of the most powerful countries during the Second World War, likewise had its own
version of the sodomy law stated in Paragraph 175 of the German Criminal Code (Awareness Harmony Acceptance Advocates
[AHAA], 2014).
LGBT discrimination has a long history and serves as a remnant of the colonial era when the most powerful nations used laws as
mechanisms of control over morality and standards of behavior (Human Rights Watch, 2008; United Nations Human Rights
Commission [UNHRC], n.d.). The criminalization of homosexuality led to the LGBT people's repression, which persisted even
beyond the end of the Second World War when the international community pushed for the recognition and respect for human
rights.
....
As of 2015, 113 United Nations member states have legally recognized same-sex relations (ILGA, 2015). Also, key international
documents and human rights instruments were achieved, among them the Yogyakarta Principles in 2006, the UNHRC Resolution
on Human Rights, Sexual Orientation and Gender Identity (SOGI) in 2011, and the UNHRC Core State Obligations on LGBT Human
Rights in 2012.203
A 2012 coalition report204 submitted by OutRight Action International,205 together with 40 Philippine LGBTQI+ and human
rights groups206 and 13 activists,207 to the 106th Session of the United Nations Human Rights Committee208 showed that from
1996 to 2012, 163 LGBTQI+ persons have been murdered due to their gender identity, gender expression, or sexual
orientation.209 The report documented discriminatory acts against LGBTQI+ groups and persons both by State and non-State
actors.
In 2016, EnGendeRights, Inc. and OutRight Action International, as with 34 Philippine groups and individuals,210 submitted a
report211 to the Committee on the Elimination of Discrimination against Women.212 This report documented the lack of
national anti-discrimination, gender recognition, and hate crime legislation, as well as cases of discrimination by
police,213 health workers,214 educators,215 employers,216 and the judiciary217 against LGBTQI+ persons.
A more recent report submitted in 2017218 by civil society organizations219 to the Universal Periodic Review of the United
Nations Human Rights Council continued to document human rights violations against LGBTQI+ persons, including an existing
legal framework inadequate to address systemic problems of discrimination and exclusion.
This is not to say that there is a universal experience for the LGBTQI+ community. To do so would be to "provide homogenized
and distorted views"220 of the community, "advancing the interest of more privileged individuals."221 As first noted by
American professor Kimberlé Williams Crenshaw:
This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that
cannot be understood as resulting from discrete sources of discrimination. I suggest further that this focus on otherwise-
privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex
become grounded in experiences that actually represent only a subset of a much more complex phenomenon.222
Axes of privilege and empowerment, on one hand, and oppression and marginalization, on the other, provide a spectrum that
reflects the diversity of lived experiences of LGBTQI+ persons and groups. This is not confined to the spheres of SOGIESC: class
and economic status, ethnicity, religion, age, disability, and other identities223 all play roles in the intersections of LGBTQI+
persons.
Therefore, any entity that attempts to speak for and on behalf of a diverse community must be able to adequately thread the
needle in representation of them, assisting this Court's understanding with sufficient facts that would enable it to empower, and
not further exclude, an already marginalized community.
VI (C)
There is a perception within the LGBTQI+ community that the Philippines is considered among the most gay-friendly countries in
the world.224
Accounts on the pre-colonial Philippine society report that different SOGIESC expressions were recognized and accepted in the
islands.
For instance, the Vocabulario de la Lengua Tagala, published in 1860, and the Vocabulario de la Lengua Bicol, in 1865, both make
reference to the word asog, which refers to men who dress in women's clothes and keep relations with fellow men.225 These
persons exercised significant roles in the pre-colonial Philippine society and were even revered as authorities:
[F]rom the earliest encounters between the Spanish and the natives, gender-crossing was already very much a reality in a
number of communities across the entire archipelago. Local men dressed up as—and acting like—women were called, among
others, bayoguin, bayok, agi-ngin, asog, bido, and binabae. The Spanish thought them remarkable not only because they
effectively transitioned from male to female, but also because as spiritual intermediaries or babaylan, they were revered figures
of authority in their respective communities. It's important to remember that their taking on the customary clothes of women—
as well as their engagement in feminine work—was of a piece with a bigger and more basic transformation, one that redefined
their gender almost completely as female. More than mere cross-dressers, these "men" were gender-crossers, for they didn't
merely assume the form and behavior of women. Their culture precisely granted them social and symbolic recognition as binabae
("womanlike").226 (Emphasis supplied)
It has been noted that it was difficult to recognize the asogs, bayoguins, and binabayis as men because they carried extraordinary
clothing, appearance, and actions similar to women.227 This has been considered a manifestation of freedom as they had "liberty
over their choice of wear, behavior, beliefs and way of living."228
Aside from this fluidity in gender expression, it has also been observed that "the local concept of matrimony was not imprisoned
into male-and-female only."229 According to various cronicas y relaciones, the bayoguin, bayok, agi-ngin, asog, bido, and binabae,
among others, "were "married" to men, who became their maridos ("husbands"), with whom they indulged in regular sexual
congress."230
It was only during the arrival of the Spanish colonizers in the Philippine islands that these activities previously engaged in by
the asog, bayoguin, and binabayi became suppressed:
The right of men to wed their fellow men was suppressed, and the tradition of the asog wearing long skirts and feminine clothes
vanished. More than these, men were banned from having sexual relations with fellow men for this ran contrary to the dominant
religion anointed by the Spanish. The church had a corresponding punishment for the natives who violated this rule. All sinners
had to go through the sanctity of confession, for confession was the spring that cleansed man's sins (Rafael, 1988).231
In contemporary times, as this Court has noted, there is no penalty in the Philippines for engaging in what may be called
"homosexual conduct."232 Notably, Republic Act No. 11166, or the Philippine HIV and AIDS Policy Act, states a policy of non-
discrimination in Section 2:
SECTION 2. Declaration of Policies. — . . .
....
Policies and practices that discriminate on the basis of perceived or actual HIV status, sex, gender, sexual orientation, gender
identity and expression, age, economic status, disability, and ethnicity hamper the enjoyment of basic human rights and freedoms
guaranteed in the Constitution and are deemed inimical to national interest.
However, discrimination remains. Hence, the call for equal rights and legislative protection continues.
To address the continuing discrimination suffered by the LGBTQI+ community in the Philippines, a number of legislative
measures have been filed in Congress.
For instance, the following bills were filed in the 17th Congress: (1) House Bill No. 267, or the Anti-SOGIE (Sexual Orientation and
Gender Identity or Expression) Discrimination Bill,233 which was eventually consolidated, along with other bills, into House Bill
No. 4982234; (2) House Bill No. 79, which focused on the same subject as House Bill No. 267;235 (3) House Bill No. 2952, which
aims to establish LGBT help and protection desks in all Philippine National Police stations nationwide;236 House Bill No. 5584,
which aims to define domestic violence against individuals, including members of the LGBTQI+ community other than women
and children;237 and Senate Bill No. 1271, otherwise known as the Anti-Discrimination Bill.238
As of the 18th Congress, steps are being taken to pass the Sexual Orientation, Gender Identity, and Gender Expression (SOGIE)
Equality Bill, with at least 10 congressional bills239 and four Senate bills240 against discrimination based on sexual orientation
and gender identity pending.
While comprehensive anti-discrimination measures that address the specific conditions faced by the LGBTQI+ community have
yet to be enacted, Congress has made headway in instituting protective measures. Republic Act No. 11313, or the Safe Spaces Act,
specifically addresses "transphobic, homophobic, and sexist slurs" and penalizes gender-based street and public spaces sexual
harassment:
SECTION 3. Definition of Terms. — As used in this Act:
(a) Catcalling refers to unwanted remarks directed towards a person, commonly done in the form of wolf-whistling
and misogynistic, transphobic, homophobic, and sexist slurs;
....
SECTION 4. Gender-based Streets and Public Spaces Sexual Harassment. — The crimes of gender-based streets and public spaces
sexual harassment are committed through any unwanted and uninvited sexual actions or remarks against any person regardless
of the motive for committing such action or remarks.
Gender-based streets and public spaces sexual harassment includes catcalling, wolf-whistling, unwanted invitations,
misogynistic, transphobic, homophobic and sexist slurs, persistent uninvited comments or gestures on a person's appearance,
relentless requests for personal details, statement of sexual comments and suggestions, public masturbation or flashing of private
parts, groping, or any advances, whether verbal or physical, that is unwanted and has threatened one's sense of personal space
and physical safety, and committed in public spaces such as alleys, roads, sidewalks and parks. Acts constitutive of gender-based
streets and public spaces sexual harassment are those performed in buildings, schools, churches, restaurants, malls, public
washrooms, bars, internet shops, public markets, transportation terminals or public utility vehicles.
In the absence of a comprehensive national law, local government units have passed ordinances recognizing and upholding
SOGIESC. In Quezon City, City Ordinance No. 2357, or the Quezon City Gender-Fair Ordinance, was passed.241 In Davao City,
Ordinance No. 0417-12 was passed, penalizing acts that discriminate sexual and gender orientation.242 In 2018, the Davao City
Government announced that it would establish an "all-gender" comfort room to accommodate members of the LGBTQI+
community.243 Its purpose, Vice Mayor Bernard Al-ag stated, is "to reduce discrimination in the preferred gender of the
people."244
Meanwhile, the San Juan City Government passed Ordinance No. 55, which provides for anti-discrimination of members of the
LGBT community.245 The Mandaluyong City Government passed Ordinance No. 698 in 2018 to "uphold the rights of all Filipinos
especially those discriminated by reason of gender identity and sexual orientation."246 In 2019, during the Metro Manila Pride
March and Festival, the Marikina City Government announced the enactment of City Ordinance No. 065, its anti-discrimination
ordinance.247
Moreover, the Philippine Commission on Women has listed other local government units that adopted anti-discrimination
ordinances to prohibit discrimination based on sexual orientation and gender identity:
Angeles City in Pampanga, Antipolo City, Bacolod City in Negros Occidental, Batangas City in Batangas, Candon City in Ilocos Sur,
Cebu City, Dagupan City in Pangasinan, . . . Mandaue City, Puerto Princesa, . . . Vigan City in Ilocos Sur, Municipality of San Julian in
Eastern Samar, Province of Agusan del Norte, Province of Batangas [,] and Province of Cavite.248
The history of erasure, discrimination, and marginalization of the LGBTQI+ community impels this Court to make careful
pronouncements—lest it cheapen the resistance, or worse, thrust the whole struggle for equality back to the long shadow of
oppression and exclusion. The basic requirement of actual case or controversy allows this Court to make grounded declarations
with clear and practical consequences.
VII
Here, petitioner has no actual facts that present a real conflict between the parties of this case. The Petition presents no actual
case or controversy.
Despite a goal of proving to this Court that there is a continuing and pervasive violation of fundamental rights of a marginalized
minority group, the Petition is woefully bereft of sufficient actual facts to substantiate its arguments.
A substantive portion of the Petition merely parrots the separate concurring opinion of retired Chief Justice Puno in Ang Ladlad
LGBT Party, concerning the concept of suspect classifications. Five (5) pages of the 29-page Petition are block quotes from retired
Chief Justice Puno, punctuated by introductory paragraphs of, at most, two (2) sentences each.
A separate opinion is the expression of a justice's individual view apart from the conclusion held by the majority of this
Court.249 Even first year law students know that a separate opinion is without binding effect.250 This Court may adopt in a
subsequent case the views in a separate opinion, but a party invoking it bears the burden of proving to this Court that the
discussion there is the correct legal analysis that must govern.
Petitioner made no such effort. He did not explain why this Court should adopt the separate opinion of retired Chief Justice Puno.
It is not enough, as petitioner has done, to merely produce copious quotations from a separate opinion. Even more curious,
petitioner would eventually betray a lack of confidence in those quotations by ultimately saying that he "disagrees with the
former Chief Justice's conclusion."251 From his confused and disjointed reference to retired Chief Justice Puno, petitioner would
arrive at the conclusion that Articles 1 and 2 of the Family Code must be examined through the lens of the strict scrutiny test.
In his separate concurring opinion in Ang Ladlad LGBT Party, retired Chief Justice Puno referred to submissions made by
petitioner Ang Ladlad Party-List before respondent Commission on Elections on the "history of purposeful unequal
treatment"252 suffered by the LGBTQI+ community. This Court, however, cannot recognize Ang Ladlad Party-List's allegations,
since they were made by a different party, in a different case, on a different set of facts, for a different subject matter, concerning a
different law, to a different governmental body. These are not "actual facts" sufficient to engender a justiciable controversy here.
They cannot be summarily imported and given any weight in this case, to determine whether there is a clash of rights between
adversarial parties.
All told, petitioner's 29-page initiatory pleading neither cites nor annexes any credible or reputable studies, statistics, affidavits,
papers, or statements that would impress upon this Court the gravity of his purported cause. The Petition stays firmly in the
realm of the speculative and conjectural, failing to represent the very real and well-documented issues that the LGBTQI+
community face in Philippine society.
Even petitioner's choice of respondent exposes the lack of an actual case or controversy.
He claims that he impleaded the Civil Registrar General as respondent because "it is the instrumentality of the government that is
tasked to enforce the law in relation with (sic) marriage[.]"253
Lest petitioner himself forget, what he asserts as ground for the allowance of his suit is the existence of grave abuse of
discretion;254 specifically, grave abuse of discretion in the enactment of the Family Code:
20. Petitioner submits that a prima facie case of grave abuse of discretion exists in the passage of Articles 1 and 2 of the Family
Code. Limiting the definition of marriage as between man and woman is, on its face, a grave abuse of discretion[.]255
Respondent Civil Registrar General was not involved in the formulation or enactment of the Family Code. It did not participate in
limiting the definition of marriage to only opposite-sex couples. That is the province and power of Congress alone.
His choice of the Civil Registrar General as respondent is manifestly misguided. No factual antecedents existed prior to the filing
of the Petition apart from the passage of the Family Code. Petitioner has never applied for a marriage license. He has never even
visited the premises of respondent's office, or of anyone acting under its authority. Petitioner has never bothered to show that he
himself acted in any way that asked respondent to exercise any kind of discretion. Indeed, no discretion was ever exercised by
respondent. Without an exercise of discretion, there could not have been abuse of discretion, let alone one that could conceivably
be characterized as "grave."
This rudimentary, but glaring, flaw was pointed out by Chief Justice Lucas P. Bersamin during the oral arguments:
ATTY. FALCIS:
Yes, Your Honor. We believe that it is proper to implead the Civil Registrar-General because when it comes to Rule 65 Petitions,
Your Honors, in the way that petitions, petitioners invoked it, it's in the expanded . . . (interrupted)
JUSTICE BERSAMIN:
Yeah. I understand. Now, the expanded jurisdiction under the Second Paragraph of Section 1 of Article VIII, refers to abuse of
discretion.
ATTY. FALCIS:
Yes, Your Honors.
JUSTICE BERSAMIN:
The Civil Registrar has no discretion. Meaning, it has only a ministerial duty to issue you a license or to deny you that license. So,
could you not ever resulted (sic) to mandamus in the Regional Trial Court of where you have a refusal? You should have done
that.
ATTY. FALCIS:
Your Honor, with this Court's indulgence, we are of the submission that in other laws that were questioned, other, the
constitutionality of other laws that were questioned . . . (interrupted)
JUSTICE BERSAMIN:
No, you cannot make your case similar to those other laws because those other laws were against other branches of government.
They were seeking genuine judicial review. Here, you are asking us to perform a very ordinary task of correcting somebody's
mistake which was not even a mistake because there was no instance where you asked that official to function as
such.256 (Emphasis supplied)
Petitioner himself admitted that he has not suffered from respondent's enforcement of the law he is assailing:
JUSTICE BERNABE:
Have you actually tried applying for a marriage license?
ATTY. FALCIS:
No, Your Honors, because I would concede that I do not have a partner and that even if I do have a partner, it is not automatic that
my partner might want to marry me and so, Your Honors, I did not apply or I could not apply for a marriage license.257
Petitioner noted258 that grave abuse of discretion may be shown by prima facie evidence. This does not help his case. What it
indicates is his own acknowledgement that proof cannot be dispensed with, and that he cannot win his case based on pure
allegations of actual or imminent injury caused by respondent.259 The burden is on petitioner to point to any grave abuse of
discretion on the part of respondent to avail of this Court's extraordinary certiorari power of review.260
By petitioner's own standards, his Petition lacks an essential requisite that would trigger this Court's review.
VIII
Aware of the need to empower and uphold the dignity of the LGBTQI+ community, this Court is mindful that swift, sweeping, and
indiscriminate pronouncements, lacking actual facts, may do more harm than good to a historically marginalized community.
A proper ventilation of issues requires an appreciation of marriage past its symbolic value and towards a holistic view of its
practical, cross-cutting, and even permanent consequences. This entails an overlapping process of articulation, deliberation, and
consensus, which members of the LGBTQI+ community must undertake within their circles and through the political branches of
the government, towards crafting a policy that truly embraces the particularities of same-sex intimacies.
VIII (A)
Despite seeking access to the benefits of marriage, petitioner miserably fails to articulate what those benefits are, in both his filed
pleadings and his submissions during oral arguments.
More than being the "foundation of the family[,]"261 the state of marriage grants numerous specific rights and privileges that
affect most, if not all, aspects of marital and family relationships.
VIII (A)(1)
Included in the bundle of rights granted by the Family Code to married spouses is the right of support, shown in the obligation of
each spouse to "render mutual help and support"262 and to provide support to the family.263 For instance, spouses are
mandated to contribute to the expenses for the management of the household.264 Likewise, spouses are jointly responsible for
the "sustenance, dwelling, clothing, medical attendance, education[,] and transportation"265 of the family.266 The entitlement to
this right continues even during proceedings for legal separation, annulment of marriage, or declaration of nullity of
marriage.267
As these obligations are enforceable, they concomitantly grant either spouse relief when the other spouse reneges on his or her
duty or commits acts that "tend to bring danger, dishonor or injury to the other or to the family[.]"268 Either spouse may
likewise object to the profession, occupation, business or activity of the other spouse on "valid, serious, and moral grounds."269
Although the Family Code does not grant the right to compel spouses to cohabit with each other,270 it maintains that spouses are
duty bound to "live together"271 and to "fix the family domicile."272 This is consistent with the policy of promoting solidarity
within the family.273
Furthermore, the Family Code allows spouses to constitute a family home,274 which shall be exempt from execution, forced sale,
or attachment.275 The family home may not be sold, donated, assigned, or otherwise encumbered by either spouse without the
other's written consent.276 Though an unmarried head of a family may constitute a family home,277 only those persons
enumerated in Article 154 of the Family Code may be considered beneficiaries.278
The Civil Code also offers an expansive coverage on the rights and privileges of spouses should either of them die. The law grants
surviving legitimate spouses the right and duty to make funeral arrangements for the deceased spouse.279 Accordingly, "no
human remains shall be retained, interred, disposed of[,] or exhumed"280 without proper consent from the legitimate spouse,
who shall have a better right than the other persons enumerated in Article 199 of the Family Code.
In relation to this, Section 4 of Republic Act No. 7170 permits the surviving spouse to donate all or any part of the body of the
deceased legitimate spouse, as long as there is no actual notice of contrary intentions by the deceased, or of opposition by a
member of his or her immediate family.281
The Civil Code also covers the successional rights granted to spouses. This includes the division and partition of the deceased
spouse's estate among the surviving spouse and other surviving descendants, ascendants, and collateral relatives.
A surviving spouse succeeds concurrently with the deceased spouse's legitimate and illegitimate descendants and
ascendants.282 As compulsory heirs, they are entitled to receive a specific and definite portion of the deceased's estate.283
In cases where the deceased spouse left a will, the surviving spouse is entitled to one-half of the testator's entire estate.284 If the
spouse survives with legitimate or illegitimate children or descendants and/or acknowledged natural children, he or she receives
a share equivalent to the share of a legitimate child.285
If either spouse dies without any will and the surviving spouse is the sole heir of the deceased, the spouse is entitled to the entire
estate "without prejudice to the rights of brothers and sisters, nephews[,] and nieces"286 of the deceased. If the spouse survives
with the legitimate or illegitimate children or descendants of the deceased then the spouse is entitled to receive the same amount
of share that a legitimate child is entitled to receive.287
The Civil Code also covers situations where the spouses were married in articulo mortis, and one (1) of them died three (3)
months after such marriage. In these cases, the surviving spouse is entitled to one-third of the deceased's estate. However, where
the spouses were living together as husband and wife five (5) years before a spouse dies, the surviving spouse is entitled to half of
the estate.288
Aside from the rights and privileges between married spouses, the Civil Code also provides for the relationships between the
spouses, as parents, and their children. Consistent with the constitutional provision on the "right and duty of parents in rearing
the youth,"289 the Family Code states that spouses shall exercise joint parental authority,290 legal guardianship,291 and custody
over common children.
Parental authority encompasses a bundle of rights for unemancipated children. This includes the right to represent the common
children in matters affecting their interests and to impose discipline on them as may be necessary, among others.292
The Family Code likewise provides that spouses shall exercise legal guardianship over the property of the minor child by
operation of law.293 This entitles the spouses to a right over the fruits of the child's property, which shall be used primarily for
child support and secondarily for the family's collective needs.294
Meanwhile, Republic Act No. 8552 covers the rights and privileges attached to adoption. One (1) of the significant rights granted
by this law is the legitimate spouses' right to jointly adopt a child. Spouses who jointly adopt shall exercise joint parental
authority and custody over the adoptee.295
The adoptees shall, for all intents and purposes, be considered as legitimate children of the adoptive parents.296 As legitimate
children, they may bear the surname of their adoptive parents.297 They are likewise granted the right to receive support, the
legitime, and other successional rights from both of the adoptive parents.
Moreover, inter-country adoption permits Filipino citizens permanently residing abroad to jointly file for adoption with their
spouse. Though Section 9 of Republic Act No. 8043 restricts adopters to persons who are "at least twenty-seven (27) years of age
and at least sixteen (16) years older than the child to be adopted, at the time of application[,]" the same provision allows an
exception in favor of an adopter who is the legitimate spouse of the adoptee's natural parent.298
VIII (A)(2)
Marriage has consequences in criminal law as well.
For instance, anyone who, after having suddenly come upon his or her legitimate spouse in the act of committing sex with
another, kills any or both is only liable to suffer destierro. Should the offending spouse inflict physical injuries upon his or her
spouse or the other person, he or she shall be exempt from criminal liability.299
Marital relations also influence the imposable penalty for crimes. Any person's criminal act in defense of his or her spouse is a
justifying circumstance,300 while immediate vindication of a grave offense to one's spouse is a mitigating circumstance.301 That
the victim is the spouse of the offender is considered an alternative circumstance, which may be considered as aggravating or
mitigating depending on "the nature and effects of the crime and the other conditions attending its commission."302 Commission
of the crime in full view of the spouse of the victim-spouse is also an aggravating circumstance in the crime of rape.303 The Anti-
Trafficking in Persons Act of 2003, as amended, also qualifies trafficking if the offender is a spouse of the trafficked
person.304 Further, a spouse who is an accessory to a crime is generally exempt from criminal liability.305
In the crimes of seduction, abduction, acts of lasciviousness, and rape, the marriage between the offending and the offended party
extinguishes the criminal action and remits the penalty already imposed upon the offender.306 In marital rape, "the subsequent
forgiveness" of the offended wife extinguishes the criminal action or penalty against the offending husband.307 Likewise,
adultery and concubinage cannot be prosecuted when the offended spouse has pardoned the offenders or has consented to the
offense.308
Bigamy is committed by a person who has been previously married and who contracts a subsequent marriage before the first
marriage has been legally dissolved or before the absent spouse has been declared presumptively dead by a court
judgement.309 Penalizing the act of contracting a subsequent marriage where one is still legally married to another person
safeguards the institution of marriage, protecting the rights and status of the legitimate spouse.
VIII (A)(3)
The State's interest in marriage and married persons extends to taxation.
Under the National Internal Revenue Code, as amended by Republic Act No. 10963, the income taxes of married individuals are
generally computed separately based on their respective total taxable income.310 However, for any income that "cannot be
definitely attributed to or identified as income exclusively earned or realized by either of the spouses,"311 Section 24 of the
National Internal Revenue Code, as amended, provides that the amount shall be equally divided between the spouses for the
computation of their respective taxable incomes.
Further, in the computation of an individual's taxable income, the National Internal Revenue Code, as amended, excludes from the
computation of the gross income any amount received by an heir of an official or employee from the employer "as a consequence
of separation of such official or employee from the service of the employer because of death sickness or other physical disability
or for any cause beyond the control of the said official or employee."312 Likewise, benefits received by a spouse from the Social
Security System, in accordance with Republic Act No. 8282, as well as benefits received from the Government Service Insurance
System, in accordance with Republic Act No. 8291, are excluded from the computation of an individual's gross income.313
On the filing of income tax returns, the National Internal Revenue Code, as amended, provides that married individuals,
regardless of citizenship or residence, "who do not derive income purely from compensation," shall file an income tax return that
includes the income of both spouses, except "where it is impracticable for the spouses to file one return," in which case each
spouse may file separate income tax returns.314
As for estate tax, the National Internal Revenue Code, as amended, provides that "the capital of the surviving spouse of a
decedent"315 is not deemed part of the gross estate. Consequently, "the net share of the surviving spouse in the conjugal
partnership property" is "deducted from the net estate of the decedent."316
Likewise, when the decedent is a Filipino citizen or a resident of the Philippines, the National Internal Revenue Code, as amended,
allows a deduction of the "current fair market value of the decedent's family home"317 up to P10 million from the amount of the
gross estate. Further, "any amount received by the heirs from the decedent's employee as a consequence of the death of the
decedent-employee in accordance with Republic Act No. 4917"318 is also deducted from the amount of the gross estate.
VIII (A)(4)
Even the Labor Code and other labor laws are influenced by the institution of marriage.
The narrow definition of "dependents" under the Labor Code includes "the legitimate spouse living with the employee."319 As a
consequence, the legitimate spouse is entitled to compensation from the state insurance fund in case of the disability or death of
the employee.320
Further, under the Social Security Act of 1997321 and the Government Service Insurance System Act of 1997,322 the legal spouse
of the member is included in the list of his or her dependents.
Similarly, the Overseas Workers Welfare Administration Act includes the legal spouse in the list of dependents of overseas
Filipino workers.323 Thus, certain benefits afforded to overseas Filipino workers are extended to the legal spouse.324
The Labor Code confines an employee's "primary beneficiaries" to his or her dependent spouse, until he or she remarries, and his
or her dependent children.325 Primary beneficiaries are entitled to receive full death benefits under the Labor Code.326
In addition, under the Social Security Act of 1997327 and the Government Service Insurance System Act of 1997,328 the
dependent spouse is included in the list of primary beneficiaries of the employee, until he or she remarries.
The Social Security Act of 1997 entitles the "primary beneficiaries as of the date of retirement" to receive the retirement benefits
of the retired member upon his or her death.329 They are also entitled to receive death benefits "[u]pon the death of a member
who has paid at least thirty-six (36) monthly contributions prior to the semester of death."330 The primary beneficiaries as of the
disability are also entitled to receive the monthly pension of a permanent total disability pensioner upon the pensioner's
death.331
On the other hand, the Government Service Insurance System Act of 1997 entitles the dependent spouse, as a primary
beneficiary, to survivorship pension upon the death of a member.332 This entitlement is likewise afforded to qualified
beneficiaries "[u]pon the death of an old-age pensioner or a member receiving the monthly income benefit for permanent
disability."333 Further, funeral benefits are provided under the Government Service Insurance System Act of 1997.334
Moreover, under the 2010 Philippine Overseas Employment Administration Standard Employment Contract,335 a seafarer's
beneficiaries are entitled to a list of compensation and benefits in the event of the seafarer's work-related death.336
Meanwhile, under Republic Act No. 7192, or the Women in Development and Nation Building Act, "[m]arried persons who devote
full time to managing the household and family affairs" shall be entitled to voluntary coverage under Pag-IBIG, the Government
Service Insurance System, and Social Security System, which is equivalent to half of "the salary and compensation of the working
spouse."337 These contributions "shall be deducted from the salary of the working spouse."338
VIII (A)(5)
Aside from influencing provisions in substantive law, the status of marriage is also recognized in the Rules of Court.
For instance, spouses may not be compelled to testify for or against each other during their marriage.339 Likewise, during or
even after their marriage, spouses, by reason of privileged communication, "cannot be examined without the consent of the other
as to any communication received in confidence by one from the other during the marriage[.]"340
Moreover, the law accords to family courts exclusive jurisdiction over petitions for guardianship, custody of children, adoption of
children, and support, as well as complaints for annulment, declaration of nullity of marriage, and property relations.341
A disputable presumption under our Rules on Evidence is that a man and a woman who deport themselves as spouses have
entered into marriage.342 It is also presumed that a property that is acquired by a man and a woman, who have the capacity to
marry and live exclusively with each other as spouses without being actually married, was obtained by their joint efforts, work, or
industry.343 If such man and woman have acquired property through their actual joint contribution, their contributions shall
also be presumed as equal.344
VIII (A)(6)
Marriage likewise affects the application of other special laws. Several statutes grant a range of rights in favor of legitimate
spouses. Among these is the National Health Insurance Act of 2013, which gives a legitimate spouse, as a "legal dependent," the
right to receive health care benefits.345 This right includes inpatient hospital care and payment for the services of healthcare
professionals, and diagnostic and other medical services, among others.346
Furthermore, the Insurance Code, as amended by Republic Act No. 10607, acknowledges that every person has an insurable
interest in the life of his or her legitimate spouse.347 This allows a married person to enter into an insurance policy upon the life
of his or her spouse as owner and/or beneficiary.
As to survivorship benefits, legitimate spouses of retired chairpersons and commissioners of constitutional commissions—the
Commission on Audit, Civil Service Commission, Commission on Elections—as well as of the Ombudsman are entitled under
Republic Act No. 10084 to receive all the retirement benefits that the deceased retiree was receiving at the time of his or her
demise.348 Likewise, surviving legitimate spouses of deceased members of the judiciary, who were retired or eligible to retire at
the time of death, are entitled to all the retirement benefits of the deceased judge or justice under Republic Act No. 910, as
amended.349 In both cases, the surviving legitimate spouse shall continue to receive such benefits until he or she remarries.
Similarly, the surviving legitimate spouses of police or military personnel, including firefighters, who died in the performance of
duty or by reason of their position, shall be given special financial assistance under Republic Act. No. 6963. They are also entitled
to receive whatever compensation, pension, or any form of grant, to which the deceased person or his or her family was
entitled.350
In addition, Republic Act No. 9049 entitles surviving legitimate spouses of deceased awardees of medals of valor to a lifetime
monthly gratuity pay of P20,000.00, which shall accrue in equal shares and with the right of accretion, until he or she remarries
and the common children reach the age of majority. This is separate from the pension, to which the surviving legitimate spouse is
also entitled.351
Under Republic Act No. 10699, the "primary beneficiaries" of a deceased national athlete or coach, which include the surviving
legitimate spouse, shall be entitled to a lump sum amount of P30,000.00 for funeral expenses.352
Republic Act No. 6173 entitles spouses who are both public officials and employees the right to jointly file their statement of
assets, liabilities, and net worth and disclosure of business interests and financial connections.353
Meanwhile, legitimate spouses of persons arrested, detained, or under custodial investigation for lawful reasons are granted
visitation rights under Republic Act No. 7438.354
Republic Act No. 9505, or the Personal Equity and Retirement Act, prescribes the aggregate maximum contribution of
P100,000.00 per contributor. The same law includes a provision in favor of married contributors, such that each spouse may
make a maximum contribution of P100,000.00 or its equivalent in any convertible foreign currency per year.355
Republic Act No. 8239, otherwise known as the Philippine Passport Act, also grants diplomatic passports to legitimate spouses of
"persons imbued with diplomatic status or are on diplomatic mission[.]" They include the president, vice president, members of
Congress and the judiciary, cabinet secretaries, and ambassadors, among others.356 Moreover, an official passport shall be issued
in favor of the legitimate spouses of all government officials who are "on official trip abroad but who are not on a diplomatic
mission or delegates to international or regional conferences or have not been accorded diplomatic status" when accompanying
them.357
More recently, in Republic Act No. 11035, legitimate spouses of science, technology, or innovation experts engaged in a long-term
program have been granted certain privileges, such as roundtrip airfares from a foreign country to the Philippines and other
special relocation benefits.358
VIII (B)
Yet, orienting same-sex relationships towards a state-sanctioned marriage cannot be attuned solely to its benefits and
advantages. This approach usually ignores the burdens associated with marriage. As a legally-binding relationship that unites
two (2) individuals, marriage becomes an "enabling constraint"359 that imposes certain duties on married couples and even
limitations on their actions.
The law imposes certain limitations on the property relations between spouses. For instance, the Family Code prescribes that in
the absence of any settlement between the spouses, their properties shall be governed by the regime of absolute community of
property.360
Under this regime, each spouse is considered a co-owner of all the properties they brought into the marriage, as well as those
properties they will acquire after marriage, regardless of their actual contribution.361
The spouses may also choose a system of conjugal partnership of gains as their property regime. Under this, "the husband and
wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by
either or both spouses through their efforts or by chance[.]"362 Here, each spouse retains power and control over his or her
exclusive properties, such that he or she may mortgage, encumber, alienate, or dispose of them during the marriage even without
the consent of the other spouse.363 However, each spouse bears the burden of proving that those properties acquired during the
marriage form part of their exclusive property, as the law creates a presumption that property is conjugal even if the properties
were made, contracted or registered in the name of only one spouse.364
The spouses may also decide on a separation of property during the marriage, subject to a judicial order.365 Should the spouses
choose this property regime, they may, in their individual capacity, dispose of their own properties even without the consent of
the other.366 However, despite the separation, the law mandates that the income of the spouses shall account for the family
expenses.367
Donations made by reason of marriage are also governed by the Family Code.368 While the provisions on ordinary donations
under the Civil Code may apply, there are specific rules which restrict the kind of donations that can be made during marriage
and even between the spouses. For instance, the Family Code provides that, should the married spouses choose a property
regime other than the absolute community of property, the husband and the wife cannot donate more than one-fifth of their
present property to each other.369 If the spouses select the absolute community of property regime, they are proscribed from
donating any part of the community property without the consent of the other spouse.370
Corollary to the right granted to spouses, as parents, over the person and property of their children is the responsibility to
discipline them as may be required under the circumstances. Thus, under the law, spouses exercise joint parental authority
directly and primarily. They are solidarily liable for the damage caused by the acts or omissions of their minor children who are
living in their company and under their parental authority.371 The courts may admonish those who exercise parental authority
over delinquent children.372
While married persons may jointly adopt or be adopted, the law provides that either spouse may not adopt or be adopted
without the written consent of the other spouse.373 Thus, should a spouse seek to adopt his or her own illegitimate child, the
other spouse must still consent.374
Some crimes include marital relations among their elements. For instance, parricide covers the killing of one's legitimate spouse
and is penalized by reclusion perpetua to death.375
In the crimes of theft, swindling, or malicious mischief, no criminal liability is incurred if the spouse is the offender.376
Further, Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, prohibits the spouse of any public
official from "requesting or receiving any present, gift, material or pecuniary advantage from any other person having some
business, transaction, application, request, or contract with the government, in which such public official has to
intervene."377 Spouses of the president, vice president, senate president, and speaker of the House of Representatives are also
forbidden to intervene in any business, transaction, contract, or application with the government.378 Moreover, in determining
the unexplained wealth of a public official, the spouses' properties, bank deposits, and manifestly excessive expenditures are also
considered.379
In civil actions, spouses are generally joint parties in a case irrespective of who incurred the obligation.380 In criminal actions,
the court may also cite in contempt the spouse of a drug dependent who refuses to cooperate in the treatment and rehabilitation
of the drug dependent.381
Thus, the claim for a state-sanctioned marriage for same-sex couples should come with the concomitant willingness to embrace
these burdens, as well as to submit to the State certain freedoms currently enjoyed outside the institution of marriage:
Critical awareness of the state's role as now-fundamental partner in the recognition and protection of a form of sexual rights
should push us to regard these "victories" as necessarily ethically compromised.
The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and
indeed discomfiting, work needs to be done by theorists and activists alike. This means rethinking the horizon of
success. "Victory" in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend
LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics. This must necessarily include a deliberate
effort to counteract, if not sabotage, the pull of the state to enlist rights-based movements into its larger governance projects,
accompanied by an affirmative resistance to conceptions of citizenship that figure nationality by and through the creation of a
constitutive other who resides in the state's and human rights' outside.382 (Emphasis supplied)
Yet, petitioner has miserably failed to show proof that he has obtained even the slightest measure of consent from the members
of the community that he purports to represent, and that LGBTQI+ persons are unqualifiedly willing to conform to the State's
present construct of marriage.
 VIII (C)
Limiting itself to four (4) specific provisions in the Family Code, the Petition prays that this Court "declare Articles 1 and 2 of the
Family Code as unconstitutional and, as a consequence, nullify Articles 46(4) and 55(6) of the Family Code."383 However, should
this Court rule as the Petition asks, there will be far-reaching consequences that extend beyond the plain text of the specified
provisions.
Articles 1 and 2 of the Family Code provide a definition and spell out basic requisites, respectively. Without passing upon the
validity of the definition under Article 1, this Court nonetheless observes that this definition serves as the foundation of many
other gendered provisions of the Family Code and other laws.
A significant number of provisions under current marriage arrangements pertain to benefits to or burdens on a specific sex (and
are therefore dependent on what is assigned at birth based on the appearance of external genitalia). As our current laws are
confined to a heteronormative standard, they do not recognize the existence and specificities of other forms of intimacy.
For instance, an incident of marriage granted by the law to spouses, specifically to wives, is the option to adopt their husbands'
surname under the Civil Code.384 The law also provides that should a marriage be annulled and the wife is an innocent party, she
may continue to employ her husband's surname unless the court decrees otherwise, or when she or the former husband
remarries.385 If the husband dies, the wife may still use his surname as though he were alive.386
In case of artificial insemination of the wife with the sperm of the husband or of a donor, the Family Code specifies that, to
establish paternity and filiation, the husband must consent to the procedure in a written instrument prior to the child's birth.387
The Family Code also contains provisions that favor the husband over the wife on certain matters, including property relations
between spouses. For one, the administration over the community property belongs to the spouses jointly, but in case of
disagreement, the husband's decision prevails.388 Similarly, the administration over conjugal partnership properties is lodged in
both spouses jointly, but in case of disagreement, the husband's decision prevails, without prejudice to the wife's right to file a
petition before the courts.389 And, in case of a disagreement between the spouses on the exercise of parental authority over their
minor children, the father's decision shall also prevail.390
Our penal laws likewise contain sex-specific provisions. For instance, adultery is committed by a wife who had sex with a man
who is not her husband.391 In contrast, concubinage is committed when a husband keeps a mistress in the conjugal dwelling, has
sex under scandalous circumstances, or cohabits in another place with a woman who is not his wife.392 While a woman who
commits adultery shall be punished with imprisonment, a man who commits adultery shall only suffer the penalty of destierro.
Further, a husband who engages in sex with a woman who is not his wife does not incur criminal liability if the sexual activity was
not performed under "scandalous circumstances."393
In labor law, Republic Act No. 8187, otherwise known as the Paternity Leave Act of 1996, provides that "every married male
employee in the private and public sectors shall be entitled to a paternity leave394 of seven (7) days with full pay for the first
four (4) deliveries of the legitimate spouse with whom he is cohabiting."395
VIII (D)
The litany of provisions that we have just recounted are not even the entirety of laws relating to marriage. Petitioner would have
this Court impliedly amend all such laws, through a mere declaration of unconstitutionality of only two (2) articles in a single
statute. This Court cannot do what petitioner wants without arrogating legislative power unto itself and violating the principle of
separation of powers.
Petitioner failed to account for any of these provisions. He failed to consider whether his own plea for relief necessarily
encompassed these and other related provisions. Thus, he failed in his burden of demonstrating to this Court the precise extent of
the relief he seeks. He merely stated that we may somehow grant him relief under his generic, catch-all prayer for "other just and
equitable reliefs." During the oral arguments:
JUSTICE LEONEN:
So what is your prayer?
ATTY. FALCIS:
The prayer of the petitions, Your Honor, initially says that to declare Articles 1 and 2 of the Family Code as null and void.
However, we also prayed for other just and equitable reliefs which we are of the position that in relation with (sic) Republic vs.
Manalo that there is an alternative option for this Court in the exercise of its expanded power of judicial review to, in the light
that the provisions is (sic) found . . . (interrupted)
JUSTICE LEONEN:
Wait a minute. You are saying or claiming that the proper reading of Republic vs. Manalo under the ponen[c]ia of Justice Peralta is
that there is an alternative consequence to a finding that a provision is unconstitutional. Normally, if a provision is
unconstitutional, it is void ab initio. And you are now saying that the Court has created new jurisprudence in Republic vs.
Manalo that when we find a provision to be unconstitutional that it can be valid?
ATTY. FALCIS:
No, Your Honor. What petitioners are saying that our interpretations of this Court's guide in Republic vs. Manalo is that . . .
(interrupted)
JUSTICE LEONEN:
So in essence you are asking the Court to find or to found new jurisprudence in relation to situation (sic) like yours?
ATTY. FALCIS:
No, Your Honors, we are only asking for a statutory interpretation that was applied in Republic vs. Manalo that two
interpretations that would lead to finding (sic) of unconstitutionality the Court adopted a liberal interpretation, did not declare
Article 26 paragraph 2 as unconstitutional. But because the Constitution is deemed written into the Family Code as well (sic)
interpreted it in light of the equal protection clause.396
Petitioner miserably failed to discharge even the most elementary burden to demonstrate that the relief he prays for is within
this Court's power to grant. It is curious, almost negligent, for him as petitioner and counsel not to present to this Court any other
provision of law that will be affected as a consequence of his Petition.
VIII (E)
There is a myriad of laws, rules, and regulations that affect, or are affected by marriage.
Yet, none was ever mentioned in the Petition or the Petition-in-Intervention.
Whether by negligence or sheer ineptitude, petitioner failed to present to this Court even more than a handful of laws that
provide for the benefits and burdens which he claims are being denied from same-sex couples. He confined himself to a
superficial explanation of the symbolic value of marriage as a social institution.
This Court must exercise great caution in this task of making a spectrum of identities and relationships legible in our marriage
laws, paying attention to "who and what is actualized when the LGBT subject is given a voice."397 We must be wary of
oversimplifying the complexity of LGBTQI+ identities and relationships, and even render more vulnerable "a range of identities
and policies that have refused to conform to state-endorsed normative homo- or heterosexuality."398
Thus, an immediate announcement that the current marriage laws apply in equal and uncalibrated measure to same-sex ATTY. FALCIS:
relationships may operate to unduly shackle those relationships and cause untold confusions on others. With the sheer
inadequacies of the Petition, this Court cannot arrogate unto itself the task of weighing and adjusting each of these many
circumstances. Yes, Your Honor, but that is not by choice, Your Honors. Same-sex couples do not have the choice out of marriage because we're
not even allowed to opt thing (sic)...

VIII (F)
JUSTICE LEONEN:

Consequently, the task of devising an arrangement where same-sex relations will earn state recognition is better left to Congress
in order that it may thresh out the many issues that may arise: So isn't it accurate to say that you are arguing to get into a situation which is more limited?

Marriage is a legal relationship, entered into through a legal framework, and enforceable according to legal rules. Law stands at ATTY. FALCIS:
its very core. Due to this inherent "legalness" of marriage, the constitutional right to marry cannot be secured simply by removing
legal barriers to something that exists outside of the law. Rather, the law itself must create the "thing" to which one has a right. As Your Honors, there are some situations that would be limited under marriage. But there are other situations that are . . .
a result, the right to marry necessarily imposes an affirmative obligation on the state to establish this legal
framework.399 (Emphasis supplied)
JUSTICE LEONEN:

During oral arguments, Members of this Court pointed to civil unions that promote more egalitarian partnerships:
But you see, Atty. Falcis, that was not clear in your pleadings? And perhaps you can make that clear when you file your
memoranda? What exactly in marriage, that status of marriage? So that status of marriage creates a bundle of rights and
JUSTICE LEONEN: obligations. But the rights and obligations can also be fixed by contractual relations, is that not correct? And because it can be
fixed by contractual relations, you can actually create a little bit more perfect civil union. In fact, you can even say in your contract
What I'm asking you, Atty. Falcis, is other people, heterosexual couples that go into marriage more second class than what you that we will stay together for ten years, after ten years, it's renewable, correct? That cannot be done by heterosexual couples
can create. wanting to marry. But if that is your belief then it can be established in that kind of an arrangement, correct? You may say not
conjugal partnership or absolute community, you will specify the details of the co-ownership or the common ownership that you
have of the properties that you have. You will say everything that I make is mine, everything that you make because you're richer
ATTY. FALCIS: therefore will be shared by us. That's more [egalitarian], correct? That's not in the Civil Code, right?

No, Your Honors, . . . ATTY. FALCIS:

JUSTICE LEONEN: Yes, Your Honor.400 (Emphasis supplied)

Because, well, it's a pre-packaged set of law. In fact, if you trace that law it comes from the Spanish Civil Code. Okay, In truth, the question before this Court is a matter of what marriage seeks to acknowledge. Not all intimate relationships are the
the Partidas and then the Nueva Recopilacion and coming from the fuer sus fuegos before, correct? same and, therefore, fit into the rights and duties afforded by our laws to marital relationships.401

ATTY. FALCIS: For this Court to instantly sanction same-sex marriage inevitably confines a class of persons to the rather restrictive nature of our
current marriage laws. The most injurious thing we can do at this point is to constrain the relationships of those persons who did
not even take part or join in this Petition to what our laws may forbiddingly define as the norm. Ironically, to do so would
Yes, Your Honor. engender the opposite of loving freely, which petitioner himself consistently raised:

JUSTICE LEONEN: The worst thing we do in a human relationship is to regard the commitment of the other formulaic. That is, that it is shaped alone
by legal duty or what those who are dominant in government regard as romantic. In truth, each commitment is unique, borne of
And in sealed patriarchy, in fact there are still some vestiges of that patriarchy in that particular Civil Code and there are a lot of its own personal history, ennobled by the sacrifices it has gone through, and defined by the intimacy which only the autonomy of
limitations, it is not culturally created. It's not indigenous within our system. Can you imagine same-sex couples now can make the parties creates.
their own civil union, correct?
In other words, words that describe when we love or are loved will always be different for each couple. It is that which we should
ATTY. FALCIS: understand: intimacies that form the core of our beings should be as free as possible, bound not by social expectations but by the
care and love each person can bring.402 (Emphasis supplied)

Yes, Your Honor.

Allowing same-sex marriage based on this Petition alone can delay other more inclusive and egalitarian arrangements that the
State can acknowledge. Many identities comprise the LGBTQI+ community. Prematurely adjudicating issues in a judicial forum
JUSTICE LEONEN: despite a bare absence of facts is presumptuous. It may unwittingly diminish the LGBTQI+ community's capacity to create a
strong movement that ensures lasting recognition, as well as public understanding, of SOGIESC.
The idea of some legal scholars which is to challenge even the constitutionality of marriage as a burden into their freedoms is
now available to same sex couples? IX
Petitioner has no legal standing to file his Petition.
Legal standing is a party's "personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement."403 Interest in the case "means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest."404
Much like the requirement of an actual case or controversy, legal standing ensures that a party is seeking a concrete outcome or
relief that may be granted by courts:
Legal standing or locus standi is the "right of appearance in a court of justice on a given question." To possess legal standing,
parties must show "a personal and substantial interest in the case such that [they have] sustained or will sustain direct injury as a
result of the governmental act that is being challenged." The requirement of direct injury guarantees that the party who brings
suit has such personal stake in the outcome of the controversy and, in effect, assures "that concrete adverseness which sharpens
the presentation of issues upon which the court depends for illumination of difficult constitutional questions."
The requirements of legal standing and the recently discussed actual case and controversy are both "built on the principle of
separation of powers, sparing as it does unnecessary interference or invalidation by the judicial branch of the actions rendered
by its co-equal branches of government." In addition, economic reasons justify the rule. Thus:
A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic
in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is
severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts
our judiciary today.
Standing in private suits requires that actions be prosecuted or defended in the name of the real party-in-interest, interest being
"material interest or an interest in issue to be affected by the decree or judgment of the case[,] [not just] mere curiosity about the
question involved." Whether a suit is public or private, the parties must have "a present substantial interest," not a "mere
expectancy or a future, contingent, subordinate, or consequential interest." Those who bring the suit must possess their own right
to the relief sought.405 (Citations omitted)
Even for exceptional suits filed by taxpayers, legislators, or concerned citizens, this Court has noted that the party must claim
some kind of injury-in-fact. For concerned citizens, it is an allegation that the continuing enforcement of a law or any government
act has denied the party some right or privilege to which they are entitled, or that the party will be subjected to some burden or
penalty because of the law or act being complained of.406 For taxpayers, they must show "sufficient interest in preventing the
illegal expenditure of money raised by taxation[.]"407 Legislators, meanwhile, must show that some government act infringes on
the prerogatives of their office.408 Third-party suits must likewise be brought by litigants who have "sufficiently concrete
interest"409 in the outcome of the dispute.
Here, petitioner asserts that he, being an "open and self-identified homosexual[,]"410 has standing to question Articles 1, 2,
46(4), and 55(6) of the Family Code due to his "personal stake in the outcome of the case":411
30. Petitioner has a personal stake in the outcome of this case. Petitioner is an open and self-identified homosexual. Petitioner has
sustained direct injury as a result of the prohibition against same-sex marriages. Petitioner has grown up in a society where
same-sex relationships are frowned upon because of the law's normative impact. Petitioner's ability to find and enter into long-
term monogamous same-sex relationships is impaired because of the absence of a legal incentive for gay individuals to seek such
relationship.412
Petitioner's supposed "personal stake in the outcome of this case" is not the direct injury contemplated by jurisprudence as that
which would endow him with standing. Mere assertions of a "law's normative impact"; "impairment" of his "ability to find and
enter into long-term monogamous same-sex relationships"; as well as injury to his "plans to settle down and have a companion
for life in his beloved country";413 or influence over his "decision to stay or migrate to a more LGBT friendly country"414 cannot
be recognized by this Court as sufficient interest. Petitioner's desire "to find and enter into long-term monogamous same-sex
relationships"415 and "to settle down and have a companion for life in his beloved country"416 does not constitute legally
demandable rights that require judicial enforcement. This Court will not witlessly indulge petitioner in blaming the Family Code
for his admitted inability to find a partner.
During the oral arguments, petitioner asserted that the very passage of the Family Code itself was the direct injury that he
sustained:
JUSTICE BERNABE:
Now, what direct and actual injury have you sustained as a result of the Family Code provisions assailed in your Petition?
ATTY. FALCIS:
Your Honors, we are of multiple submissions. The first would be that as an individual I possess the right to marry because the
right to marry is not given to couples alone; it is individual, Your Honors. Second, Your Honors, we are guided by this Court's
pronouncements in the case of Pimentel v. Aguirre that the mere enactment of a law suffices to give a person either an actual case
or standing. Because, Your Honors, we are invoking the expanded power of judicial review where in the most recent cases
especially the one penned by Justice Brion, Association of Medical Workers v. GSS, this Court said that under the expanded power
of judicial review, the mere enactment of a law, because Article VIII, Your Honors, Section 1 says that "Any instrumentality, the
grave abuse of discretion of any instrumentality may be questioned before the Supreme Court, Your Honor." And, therefore, the
direct injury that I suffer, Your Honor, was the passage of a law that contradicts the Constitution in grave abuse of discretion
because of the disregard of other fundamental provisions such as the equal protection clause, the valuing of human dignity, the
right to liberty and the right to found a family, Your Honors.417 (Emphasis supplied)
Petitioner presents no proof at all of the immediate, inextricable danger that the Family Code poses to him. His assertions of
injury cannot, without sufficient proof, be directly linked to the imputed cause, the existence of the Family Code. His fixation on
how the Family Code is the definitive cause of his inability to find a partner is plainly non sequitur.
Similarly, anticipation of harm is not equivalent to direct injury. Petitioner fails to show how the Family Code is the proximate
cause of his alleged deprivations. His mere allegation that this injury comes from "the law's normative impact"418 is insufficient
to establish the connection between the Family Code and his alleged injury.
If the mere passage of a law does not create an actual case or controversy, neither can it be a source of direct injury to establish
legal standing. This Court is not duty bound to find facts419 on petitioner's behalf just so he can support his claims.
It does not escape this Court's notice that the Family Code was enacted in 1987. This Petition was filed only in 2015. Petitioner, as
a member of the Philippine Bar, has been aware of the Family Code and its allegedly repugnant provisions, since at least his
freshman year in law school. It is then extraordinary for him to claim, first, that he has been continually injured by the existence
of the Family Code; and second, that he raised the unconstitutionality of Articles 1 and 2 of the Family Code at the earliest
possible opportunity.420
Petitioner has neither suffered any direct personal injury nor shown that he is in danger of suffering any injury from the present
implementation of the Family Code. He has neither an actual case nor legal standing.
X
The Petition-in-Intervention was also authored by petitioner. He only filed it after the Office of the Solicitor General had filed a
Comment (Ad Cautelam) pointing out the procedural flaws in his original Petition. Still, the Petition-in-Intervention suffers from
the same procedural infirmities as the original Petition. Likewise, it cannot cure the plethora of the original Petition's defects.
Thus, it must also be dismissed.
Interventions are allowed under Rule 19, Section 1 of the 1997 Rules of Civil Procedure:
SECTION 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property
in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
whether or not the intervenor's rights may be fully protected in a separate proceeding.
Intervention is not an independent action but is ancillary and supplemental to existing litigation.421
X(A)
Intervention requires: (1) a movant's legal interest in the matter being litigated; (2) a showing that the intervention will not delay
the proceedings; and (3) a claim by the intervenor that is incapable of being properly decided in a separate proceeding.422 Here,
while petitioners-intervenors have legal interest in the issues, their claims are more adequately decided in a separate proceeding,
seeking relief independently from the Petition.
The Petition-in-Intervention suffers from confusion as to its real purpose. A discerning reading of it reveals that the ultimate
remedy to what petitioners-intervenors have averred is a directive that marriage licenses be issued to them. Yet, it does not
actually ask for this: its prayer does not seek this, and it does not identify itself as a petition for mandamus (or an action for
mandatory injunction). Rather, it couches itself as a petition of the same nature and seeking the same relief as the original
Petition. It takes pains to make itself appear inextricable from the original Petition, at the expense of specifying what would make
it viable.
It does not escape this Court's notice that the Petition and Petition-in-Intervention were prepared by the same counsel, Falcis, the
petitioner himself. The Petition-in-Intervention impleaded the same single respondent, the Civil Registrar General, as the original
Petition. It also merely "adopt[ed] by reference as their own all the arguments raised by Petitioner in his original
Petition[.]"423 Notably, a parenthetical argument made by petitioner that barely occupied two (2) pages424 of his Petition
became the Petition-in-Intervention's entire subject: the right to found a family according to one's religious convictions.
Even though petitioners-intervenors Reverend Agbayani and Felipe, and Ibañez and her partner, all claim that they have
"wish[ed] to be married legally and have applied for a marriage license but were denied[,]"425 they only echoed the original
Petition's prayer, merely seeking that Articles 1, 2, 46(4), and 55(6) of the Family Code be declared unconstitutional. Despite
impleading respondent Civil Registrar General and asserting that they have a fundamental right to marry their partners,
petitioners-intervenors never saw it proper—whether as the principal or a supplemental relief—to seek a writ of mandamus
compelling respondent Civil Registrar General to issue marriage licenses to them.
X(B)
Given these, this Court can only arrive at the conclusion that the Petition-in-Intervention was a veiled vehicle by which petitioner
sought to cure the glaring procedural defects of his original Petition. It was not a bona fide plea for relief, but a sly, tardy
stratagem. It was not a genuine effort by an independent party to have its cause litigated in the same proceeding, but more of an
ill-conceived attempt to prop up a thin and underdeveloped Petition.
Petitioner, as both party and counsel to petitioners-intervenors, miserably failed in his pretenses. A petition-in-intervention
cannot create an actual case or controversy when the main petition has none. In De Borja v. Pinalakas na Ugnayan ng Maliliit na
Mangingisda ng Luzon, Mindanao at Visayas:426
We stress that neither the OSG's filing of its Comment nor the petition-in-intervention of PUMALU-MV, PKSK, and TDCI endowed
De Borja's petition with an actual case or controversy. The Comment, for one, did not contest the allegations in De Borja's
petition. Its main role was to supply De Borja's petition with the factual antecedents detailing how the alleged controversy
reached the court. It also enlightened the RTC as to the two views, the mainland principle versus the archipelagic principle, on the
definition of municipal waters. Even if the Comment did oppose the petition, there would still be no justiciable controversy for
lack of allegation that any person has ever contested or threatened to contest De Borja's claim of fishing rights.
The petition-in-intervention, on the other hand, also did not dispute or oppose any of the allegations in De Borja's petition. While
it did espouse the application of the archipelagic principle in contrast to the mainland principle advocated by the OSG, it must be
recalled that De Borja did not advocate for any of these principles at that time. He only adopted the OSG's position in his
Memorandum before the RTC. Thus, the petition-in-intervention did not create an actual controversy in this case as the cause of
action for declaratory relief must be made out by the allegations of the petition without the aid of any other
pleading.427 (Emphasis supplied, citations omitted)
This Court cannot, and should not, sanction underhanded attempts by parties and counsels to unscrupulously abuse the rules on
intervention so that they may cure the glaring defects and missteps in their legal strategies.
X(C)
Even if the Petition-in-Intervention is not a sham foisted by petitioner upon this Court, it still does not satisfy the requirements of
justiciability.
Petitioners-intervenors invoke "third-party standing" as their basis for filing suit. But the requisites of third-party standing are
absent here.
For a successful invocation of third-party standing, three (3) requisites must concur:
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine, taxpayer suits, third
party standing and, especially in the Philippines, the doctrine of transcendental importance.
For this particular set of facts, the concept of third party standing as an exception and the overbreadth doctrine are appropriate.
In Powers v. Ohio, the United States Supreme Court wrote that: "We have recognized the right of litigants to bring actions on
behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an 'injury-in-fact', thus
giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close relation to
the third party; and there must exist some hindrance to the third party's ability to protect his or her own interests."428 (Citations
omitted)
Regarding injury-in-fact, petitioner-intervenor LGBTS Christian Church claims that its ability to recruit, evangelize, and
proselytize is impaired by the lack of state recognition of the same-sex marriage ceremonies it conducts429 as part of its religion.
But there is no legally demandable right for a sect or denomination's religious ceremonies to be given State imprimatur. Likewise,
and in a manner similar to petitioner, the Family Code has not been shown to be the proximate cause of petitioners-intervenors'
alleged injury.
As to the requirement of some hindrance to a third party's ability to protect its own interests, petitioners-intervenors claim that
"the relative silence in constitutional litigation of such special interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance[.]"430 This is a direct quotation from White Light Corporation v.
City of Manila431 but was made without any explanation or discussion. In White Light Corporation, there was an actual,
demonstrable dearth of special interest groups involving patrons of White Light Corporation's businesses. Here, petitioners-
intervenors rely on nothing more than a bare allegation. They presented no proof that there is "relative silence in constitutional
litigation" from groups concerned with LGBTQI+ causes that entitles them to raise arguments on behalf of third parties.
XI
Petitioner's choice of remedy further emphasizes his ignorance of basic legal procedure.
Rule 65 petitions are not per se remedies to address constitutional issues. Petitions for certiorari are filed to address the
jurisdictional excesses of officers or bodies exercising judicial or quasi-judicial functions. Petitions for prohibition are filed to
address the jurisdictional excesses of officers or bodies exercising judicial, quasi-judicial, or ministerial functions.432 Rule 65,
Sections 1 and 2 state:
SECTION 1. Petition for Certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the
paragraph of Section 3, Rule 46.
SECTION 2. Petition for Prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the
third paragraph of Section 3, Rule 46.
Here, petitioner justifies his resort to Rule 65 on the basis of this Court's prior pronouncements that certiorari and prohibition
are the remedies for assailing the constitutionality of statutes.433 He cites, in particular, Magallona and Araullo. Petitioner even
faults this Court, asserting that its failure to create a "specific remedial vehicle under its constitutional rule-making
powers"434 made his resort to Rule 65 appropriate.
Yet, petitioner's presentation of his case, which is lacking in an actual or imminent breach of his rights, makes it patently obvious
that his proper remedy is not Rule 65, but rather, a petition for declaratory relief under Rule 63 of the 1997 Rules of Civil
Procedure:
SECTION 1. Who May File Petition. — Any person interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this Rule. (Emphasis supplied)
This Court has been categorical435 that, in certain instances, declaratory relief is proper should there be a question of the
constitutionality of a statute, executive order or regulation, ordinance, or any other governmental regulation. The remedy of
declaratory relief acknowledges that there are instances when questions of validity or constitutionality cannot be resolved in a
factual vacuum devoid of substantial evidence on record436 for which trial courts are better equipped to gather and determine.
Here, considering that there is an abysmal dearth of facts to sustain a finding of an actual case or controversy and the existence of
a direct injury to petitioner, a petition for declaratory relief resolved after full-blown trial in a trial court would have been the
more appropriate remedy.
As discussed, contrary to the basic requirement under Rule 65, petitioner failed to show that respondent Civil Registrar General
exercised any judicial, quasi-judicial, or ministerial function. From this, no grave abuse of discretion amounting to lack or excess
of jurisdiction can be appreciated. Petitions for certiorari and prohibition require the proper allegation not only of a breach of a
constitutional provision, but more important, of an actual case or controversy.437
Not even the weightiest constitutional issues justify a blatant disregard of procedural rules that attempts to bypass or set aside
judicious remedial measures put in place by this Court, under the guise that such remedies would take more than a modicum of
effort and time on the part of a petitioner.438 The requisites of justiciability should not be so lightly set aside.
XII
An equally compelling and independently sufficient basis for dismissing this Petition is petitioner's violation of the doctrine of
hierarchy of courts.
XII (A)
The doctrine of hierarchy of courts ensures judicial efficiency at all levels of courts. It enables courts at each level to act in keeping
with their peculiar competencies. This is so, even as this Court has original and concurrent jurisdiction with the regional trial
courts and the Court of Appeals over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. In Diocese
of Bacolod v. Commission on Elections:439
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. 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.
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.440 (Citations omitted)
Very recently, in Gios-Samar, Inc. v. Department of Transportation and Communications,441 this Court traced the jurisdictional
history of the extraordinary writs of certiorari, mandamus, prohibition, quo warranto, and habeas corpus. We noted that while the
1973 Constitution442 conferred on this Court original jurisdiction to issue these extraordinary writs, the same power was later
extended to the Court of Appeals443 and the regional trial courts444 through Batas Pambansa Blg. 129, otherwise known as the
Judiciary Reorganization Act of 1980.
This concurrence of jurisdiction persists under the 1987 Constitution445 and the 1997 Rules of Civil Procedure.446
Time and again, this Court has held that the concurrent jurisdiction of the Court of Appeals and the regional trial courts with this
Court does not give parties absolute discretion in immediately seeking recourse from the highest court of the land.447 In Gios-
Samar, we emphasized that the power to issue extraordinary writs was extended to lower courts not only as a means of
procedural expediency, but also to fulfill a constitutional imperative as regards: (1) the structure of our judicial system; and (2)
the requirements of due process.448
Considering the structure of our judicial system, this Court explained in Gios-Samar:
In Alonso v. Cebu Country Club, Inc. (Alonso), this Court had occasion to articulate the role of the CA in the judicial hierarchy, viz.:
The hierarchy of courts is not to be lightly regarded by litigants. The CA stands between the RTC and the Court, and its
establishment has been precisely to take over much of the work that used to be done by the Court. Historically, the CA has been of
the greatest help to the Court in synthesizing the facts, issues, and rulings in an orderly and intelligible manner and in identifying
errors that ordinarily might escape detection. The Court has thus been freed to better discharge its constitutional duties and
perform its most important work, which, in the words of Dean Vicente G. Sinco, "is less concerned with the decision of cases that
begin and end with the transient rights and obligations of particular individuals but is more intertwined with the direction of
national policies, momentous economic and social problems, the delimitation of governmental authority and its impact upon
fundamental rights." . . .
Accordingly, when litigants seek relief directly from the Court, they bypass the judicial structure and open themselves to the risk
of presenting incomplete or disputed facts. This consequently hampers the resolution of controversies before the Court. Without
the necessary facts, the Court cannot authoritatively determine the rights and obligations of the parties. The case would then
become another addition to the Court's already congested dockets.449 (Citations omitted)
Enabling lower courts to grant extraordinary writs has contributed greatly to the practical concern of decongesting dockets. More
important, it facilitates the need to enable factual issues to be fully ventilated in proceedings before courts that are better
equipped at appreciating evidence, and ultimately bringing to this Court only issues of paramount and pervasive importance. As
the final interpreter of the laws of the land, the cases brought before this Court should more appropriately be raising pure
questions of law, with evidentiary matters having been authoritatively settled by lower courts.
If this Court were to burden itself with settling every factual nuance of every petition filed before it, the entire judicial machinery
would bog down. Cases more deserving of this Court's sublime consideration would be waylaid. In Gios-Samar, this Court further
explained:
The doctrine of hierarchy of courts operates to: (1) prevent inordinate demands upon the Court's time and attention which are
better devoted to those matters within its exclusive jurisdiction; (2) prevent further over-crowding of the Court's docket; and (3)
prevent the inevitable and resultant delay, intended or otherwise, in the adjudication of cases which often have to be remanded
or referred to the lower court as the proper forum under the rules of procedure, or as the court better equipped to resolve factual
questions.450 (Citations omitted)
Likewise, this Court discussed how the doctrine of hierarchy of courts serves the constitutional right of litigants to due process:
While the term "due process of law" evades exact and concrete definition, this Court, in one of its earliest decisions, referred to it
as a law which hears before it condemns which proceeds upon inquiry and renders judgment only after trial. It means that every
citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Under
the present Rules of Court, which governs our judicial proceedings, warring factual allegations of parties are settled through
presentation of evidence. Evidence is the means of ascertaining, in a judicial proceeding, the truth respecting a matter of fact. As
earlier demonstrated, the Court cannot accept evidence in the first instance. By directly filing a case before the Court, litigants
necessarily deprive themselves of the op[p]ortunity to completely pursue or defend their causes of actions. Their right to due
process is effectively undermined by their own doing.451 (Citations omitted)
Immediately elevating evidentiary matters to this Court deprives the parties of the chance to properly substantiate their
respective claims and defenses. It is essential for courts to justly resolve controversies. Parties who proceed headlong to this
Court deny themselves their own chance at effective and exhaustive litigation.
Thus, this Court's dismissal of petitions that inextricably entail factual questions and violate the doctrine of hierarchy of courts
does not merely arise out of a strict application of procedural technicalities. Rather, such dismissal is a necessary consequence of
the greater interest of enabling effective litigation, in keeping with the right to due process. The parties' beseeching for relief
inordinately inflates this Court's competence, but we find no consolation in flattery. In the end, it is never for this Court to
arrogate unto itself a task that we are ill-equipped to perform:
In fine, while this Court has original and concurrent jurisdiction with the RTC and the CA in the issuance of writs of certiorari,
prohibition, mandamus, quo warranto, and habeas corpus (extraordinary writs), direct recourse to this Court is proper only to
seek resolution of questions of law. Save for the single specific instance provided by the Constitution under Section 18, Article VII,
cases the resolution of which depends on the determination of questions of fact cannot be brought directly before the Court
because we are not a trier of facts. We are not equipped, either by structure or rule, to receive and evaluate evidence in the first
instance; these are the primary functions of the lower courts or regulatory agencies. This is the raison d'être behind the doctrine
of hierarchy of courts. It operates as a constitutional filtering mechanism designed to enable this Court to focus on the more
fundamental tasks assigned to it by the Constitution. It is a bright-line rule which cannot be brushed aside by an invocation of the
transcendental importance or constitutional dimension of the issue or cause raised.452 (Citations omitted)
XII (B)
The distinction between questions of fact and questions of law is settled. A question of fact exists when doubt arises as to the
truth or falsity of the facts presented; a question of law exists when the issue arises as to what the law is, given a state of facts.453
That the issues involved are of transcendental importance is an oft-cited justification for failing to comply with the doctrine of
hierarchy of courts and for bringing admittedly factual issues to this Court.
Diocese of Bacolod recognized transcendental importance as an exception to the doctrine of hierarchy of courts. In cases of
transcendental importance, imminent and clear threats to constitutional rights warrant a direct resort to this Court.454 This was
clarified in Gios-Samar. There, this Court emphasized that transcendental importance—originally cited to relax rules on legal
standing and not as an exception to the doctrine of hierarchy of courts—applies only to cases with purely legal issues.455 We
explained that the decisive factor in whether this Court should permit the invocation of transcendental importance is not merely
the presence of "special and important reasons[,]"456 but the nature of the question presented by the parties. This Court
declared that there must be no disputed facts, and the issues raised should only be questions of law:457
[W]hen a question before the Court involves determination of a factual issue indispensable to the resolution of the legal issue, the
Court will refuse to resolve the question regardless of the allegation or invocation of compelling reasons, such as the
transcendental or paramount importance of the case. Such question must first be brought before the proper trial courts or the CA,
both of which are specially equipped to try and resolve factual questions.458
Still, it does not follow that this Court should proceed to exercise its power of judicial review just because a case is attended with
purely legal issues. Jurisdiction ought to be distinguished from justiciability. Jurisdiction pertains to competence "to hear, try[,]
and decide a case."459 On the other hand,
[d]etermining whether the case, or any of the issues raised, is justiciable is an exercise of the power granted to a court with
jurisdiction over a case that involves constitutional adjudication. Thus, even if this Court has jurisdiction, the canons of
constitutional adjudication in our jurisdiction allow us to disregard the questions raised at our discretion.460
Appraising justiciability is typified by constitutional avoidance.461 This remains a matter of enabling this Court to act in keeping
with its capabilities. Matters of policy are properly left to government organs that are better equipped at framing them.
Justiciability demands that issues and judicial pronouncements be properly framed in relation to established facts:
Angara v. Electoral Commission imbues these rules with its libertarian character. Principally, Angara emphasized the liberal
deference to another constitutional department or organ given the majoritarian and representative character of the political
deliberations in their forums. It is not merely a judicial stance dictated by courtesy, but is rooted on the very nature of this Court.
Unless congealed in constitutional or statutory text and imperatively called for by the actual and non-controversial facts of the
case, this Court does not express policy. This Court should channel democratic deliberation where it should take place.
....
Judicial restraint is also founded on a policy of conscious and deliberate caution. This Court should refrain from speculating on
the facts of a case and should allow parties to shape their case instead. Likewise, this Court should avoid projecting hypothetical
situations where none of the parties can fully argue simply because they have not established the facts or are not interested in the
issues raised by the hypothetical situations. In a way, courts are mandated to adopt an attitude of judicial skepticism. What we
think may be happening may not at all be the case. Therefore, this Court should always await the proper case to be properly
pleaded and proved.462
Thus, concerning the extent to which transcendental importance carves exceptions to the requirements of justiciability, "[t]he
elements supported by the facts of an actual case, and the imperatives of our role as the Supreme Court within a specific cultural
or historic context, must be made clear":463
They should be properly pleaded by the petitioner so that whether there is any transcendental importance to a case is made an
issue. That a case has transcendental importance, as applied, may have been too ambiguous and subjective that it undermines the
structural relationship that this Court has with the sovereign people and other departments under the Constitution. Our rules on
jurisdiction and our interpretation of what is justiciable, refined with relevant cases, may be enough.464
Otherwise, this Court would cede unfettered prerogative on parties. It would enable the parties to impose their own
determination of what issues are of paramount, national significance, warranting immediate attention by the highest court of the
land.
XII (C)
In an attempt to divert this Court's attention from the glaring fundamental missteps of his Petition, petitioner—almost
predictably—invokes transcendental importance.465 This invocation fails to satisfy this Court of the need to resolve the Petition
on the merits. It fails to alleviate glaring deficiencies, whether as to having violated the doctrine of hierarchy of courts, or the lack
of legal standing.
Even if this Court were to go out of its way in relaxing rules and proceed to resolve the substantive issues, it would ultimately be
unable to do so, as petitioner himself failed to present even an iota of evidence substantiating his case.
Associate Justice Francis H. Jardeleza (Associate Justice Jardeleza)'s interpellation during oral arguments highlighted this. Citing
as an example the experience of then attorney and later Justice Thurgood Marshall when he attacked the "separate but equal"
approach to schools in the segregation era of the United States, Associate Justice Jardeleza emphasized the need for a
contextualization of petitioners' arguments using factual and evidentiary bases:
JUSTICE JARDELEZA:
. . . Now, did Thurgood Marshall go direct to the US Supreme Court?
ATTY. FALCIS:
No, Your Honor.
JUSTICE JARDELEZA:
That is the point of Justice Bersamin. And my point, you should read, . . . how the NAACP, . . . plotted/planned that case and they
had a lot of evidence, as in testimonial evidence, on the psychological effect of separate but allegedly equal schools. So, do you get
my point about why you should be better off trying this case before the RTC?
ATTY. FALCIS:
Yes, Your Honor.
JUSTICE JARDELEZA:
. . . And I'll give you another good example, that is why I asked questions from Reverend Agbayani. Even if the church remains as a
party with standing, do you know why I asked that series of questions of (sic) him?
ATTY. FALCIS:
Because, Your Honor, what he was saying were factual issues, Your Honor.
JUSTICE JARDELEZA:
Yes. And what does Escritor tell you?
ATTY. FALCIS:
In terms of religious freedom, Your Honor?
JUSTICE JARDELEZA:
Yes. What does Escritor with respect to hierarchy of courts tell you?
ATTY. FALCIS:
Estrada v. Escritor remanded back the case, Your Honor, to the lower courts for . . .
JUSTICE JARDELEZA:
Escritor tells you that you should reread it carefully. The religious claim is based on religious conviction, right?
ATTY. FALCIS:
Yes, Your Honor.
JUSTICE JARDELEZA:
Just like a fundamental right, religious conviction. Bago ka dumating sa conviction the first word is religious. That's why I was
asking is there a religion? Is there a religion, to start with? Now, what is the difference between a religion and a sect? What, how
many people need/comprise a religion? Can you have a religion of one? That is described in Escritor, that's one, is there a
religion? No. 2, Escritor says, is the claim/burden being put by the government something that impinges on a practice or belief of
the church that is a central tenet or a central doctrine. You have to prove that in the RTC, that was I was (sic) asking, that's why I
was asking what is the tenet of MCC? What is the different tenet? And you have to prove that and the question for example a while
ago, you were asked by Justice Leonen, "What is the history of marriage in the Philippines?" You have your view, right? The
government has a different view about the history and if I just listen to you, you will give me your views and if I just listen to the
SOLGEN, he will give me his views. What I'm saying is the Court needs a factual record where experts testify subject to cross
examination. Yun po ang ibig sabihin ng hierarchy of courts. . . .466 (Emphasis supplied)
At another juncture during the oral arguments, when interpellating Gatdula:
JUSTICE JARDELEZA:
. . . Mr. Falcis, for example, adverted to Brown v. Board of Education. And it should interest you and it is a fascinating history on
how a group of people spearheaded by the NAACP effected social change "separate but equal is not constitutional". . . . And
remember, the question there was separate but equal schools for black children and white children, "Was it causing psychological
harm to the black children?" Of course, the whites were saying "no" because it's equal, they have equal facilities. The famous
psychologist that they presented there is named Kenneth Clark, who had his famous doll test, manika. He was able to prove that
to the satisfaction of the trial court that indeed black children sometimes even think that, you know, when you present them with
dolls, that they are white. That is the type of evidence I think that we need in this case. Now, very quickly and I will segue to
Obergefell, again, five cases four different states. They presented the Chairman of the Department of History of Yale. We heard a
lot, the government is talking of tradition and history. But again, for example, SolGen is citing Blair and Robertson, that, of course,
qualifies as a Learned Treaties, right? But again, for the proposition that the history of this country is in favor of same sex, I would
love first to hear, as an expert, probably the Chairman of History of Ateneo and UP. As in Obergefell, they also had the Department
of Psychology, Head of Washington and Lee University. So, my plea to both of you, especially to the petitioner, at this point in
time, I am not willing to ask you in your memo to discuss the merits because unless the petitioner convinces me that we have a
proper exception to the hierarchy of court rules then I think, for the first time, this Court should consider that, when we say there
is a violation of the hierarchy of rules, we stop, we don't go to merits. And that's why I'm, I cannot go, for the life of me, to the
merits if you have this question of fact in my mind. "Who, which couples can belter raise a child?" Again I say, "That is a question
of fact". I am not a trier of fact, and my humble opinion is try it first.467 (Emphasis supplied)
The lack of material allegations and substantiation in petitioner's pleadings is glaring. He had nothing but this to say:
25. Lastly, Petitioner submits that the instant petition raises an issue of transcendental importance to the nation because of the
millions of LGBT Filipinos all over the country who are deprived from marrying the one they want or the one they love. They are
discouraged and stigmatized from pursuing same-sex relationships to begin with. Those who pursue same-sex relationships
despite the stigma are deprived of the bundle of rights that flow from a legal recognition of a couple's relationship - visitation and
custody rights, property and successional rights, and other privileges accorded to opposite-sex relationships.468
Petitioner's cursory invocation of transcendental importance—miserably bereft of proof—cannot possibly impress this Court. It
only reveals petitioner's cavalier foolhardiness. Transcendental importance is not a life buoy designed to save unprepared
petitioners from their own mistakes and missteps. Its mere invocation is not license to do away with this Court's own rules of
procedure.469 In Lozano v. Nograles:470
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent
requirements of "personal injury" to the broader "transcendental importance" doctrine, such liberality is not to be abused. It is
not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.
In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is
exercised only to remedy a particular, concrete injury. When warranted by the presence of indispensable minimums for judicial
review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it. (Emphasis in the original)
Lacking even the indispensable minimum required by this Court, the Petition here cannot be resuscitated by an unthinking
parroting of extraordinary doctrines.
XIII
The primordial duty of lawyers to their clients and cause is to act to the best of their knowledge and discretion, and with all good
fidelity.471 Canon 17 of the Code of Professional Responsibility states:
CANON 17 — A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.
Competence and diligence should be a lawyer's watchwords:
CANON 18 — A lawyer shall serve his client with competence and diligence.
Rule 18.01 A lawyer shall not undertake a legal service which he knows or should know that he is not qualified to render.
However, he may render such service if, with the consent of his client, he can obtain as collaborating counsel a lawyer who is
competent on the matter.
Rule 18.02 A lawyer shall not handle any legal matter without adequate preparation.
Rule 18.03 A lawyer shall not neglect a legal matter entrusted to him, and his negligence in connection therewith shall render him
liable.
Rule 18.04 A lawyer shall keep the client informed of the status of his case and shall respond within a reasonable time to the
client's request for information.
XIII (A)
Lawyers should be mindful that their acts or omissions bind their clients.472 They are bound to zealously defend their client's
cause, diligently and competently, with care and devotion:
Once he agrees to take up the cause of a client, the lawyer owes fidelity to such cause and must always be mindful of the trust and
confidence reposed in him. He must serve the client with competence and diligence, and champion the latter's cause with
wholehearted fidelity, care, and devotion. Elsewise stated, he owes entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his client's rights, and the exertion of his utmost learning and ability to the end that nothing be taken
or withheld from his client, save by the rules of law, legally applied.⍵αwρhi৷ This simply means that his client is entitled to the
benefit of any and every remedy and defense that is authorized by the law of the land and he may expect his lawyer to assert
every such remedy or defense. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries
with it the correlative duties not only to the client but also to the court, to the bar, and to the public. A lawyer who performs his
duty with diligence and candor not only protects the interest of his client; he also serves the ends of justice, does honor to the bar,
and helps maintain the respect of the community to the legal profession.473 (Citations omitted)
XIII (B)
Here, petitioner wagered in litigation no less than the future of a marginalized and disadvantaged minority group. With palpable
vainglory, he made himself the lead plaintiff and also represented himself, only seeking assistance from other counsel for oral
arguments.474 By deciding to place this burden upon himself, petitioner should have acted with utmost care and thoughtfulness,
drawing upon the limits of his skill and knowledge, to represent the LGBTQI+ cause.
However, at every stage of these proceedings, petitioner only exposed his utter lack of preparation, recklessness, and crudeness.
Petitioner had already been previously sanctioned for his negligence and incompetence during the June 5, 2018 preliminary
conference. There, this Court underscored his ignorance of basic court procedure. In its July 3, 2018 Resolution,475 this Court
already reminded petitioner of the duty and responsibility that counsels have to the cause they purport to represent:
Lawyers must serve their clients with competence and diligence. Under Rule 18.02 of the Code of Professional Responsibility, "[a]
lawyer shall not handle any legal matter without adequate preparation." Atty. Falcis' appearance and behavior during the
preliminary conference reveal the inadequacy of his preparation. Considering that the Advisory for Oral Arguments was served
on the parties three (3) months prior to the preliminary conference, it was inexcusably careless for any of them to appear before
this Court so barely prepared.
The preliminary conference was not mere make-work. Rather, it was essential to the orderly conduct of proceedings and,
ultimately, to the judicious disposition of this case. Appearance in it by counsels and parties should not be taken lightly.
Atty. Falcis jeopardized the cause of his clients. Without even uttering a word, he recklessly courted disfavor with this Court. His
bearing and demeanor were a disservice to his clients and to the human rights advocacy he purports to represent.476
As a result, petitioner was found guilty of direct contempt of court and admonished. He was sternly warned that any further
contemptuous acts shall be dealt with more severely.
 XIII (C)
Undeterred by this Court's stern warning, petitioner, along with co-counsels, Attys. Angeles, Guangko, and Maranan of Molo Sia
Dy Tuazon Ty and Coloma Law Office, failed to comply with this Court's June 26, 2018 Order to submit the required
memorandum of both petitioner and petitioners-intervenors within 30 days, or until July 26, 2018.477 Because of this, the
Memorandum was dispensed with. Petitioner and his co-counsels were all ordered to show cause why they should not be cited in
indirect contempt.478
Their explanations479 are patently unsatisfactory. They fault the impulsivity of youth, other supposedly equally urgent
professional work, reliance on Court pronouncements in other cases, and work disruptions caused by floods and
typhoons.480 These were the same bases raised in their prior Motion for Extension, which this Court found to be utterly lacking
in merit and denied. These reasons failed to impress then, and they fail to impress now. As we observed then, the complexity of
issues and other professional work did not delay the filing of memoranda by other parties.481 There is no compelling reason to
treat petitioner and his co-counsels differently. After all, it was petitioner who set all of these events in motion; the other parties
merely responded to what he sought.
Petitioner and his co-counsel's reference to the "impulsivity of youth"482 utterly fails to impress. If at all, this Court sees this as a
deodorized admission of unreadiness and impotence.
In any case, as this Court has already stated in its July 3, 2018 Resolution:
Atty. Falcis is not an uninformed layperson. He has been a member of the Philippine Bar for a number of years. As an officer of the
court, he is duty bound to maintain towards this Court a respectful attitude essential to the proper administration of justice. He is
charged with knowledge of the proper manner by which lawyers are to conduct themselves during judicial proceedings. His
Lawyer's Oath and the Code of Professional Responsibility exhort him to maintain the requisite decency and to afford dignity to
this Court.483
Youth and professional inexperience do not excuse the manifest inability of sworn court officers to follow lawful orders. Like
petitioner, Atty. Angeles, Atty. Guangko and Atty. Maranan are members of the Philippine Bar, charged with basic knowledge of
the rules of pleading and practice before the courts, especially this Court. They are not uninformed laypersons whose ignorance
can be excused by inexperience. It bears noting that Atty. Angeles, Atty. Guangko, and Atty. Maranan are part of the law firm Molo
Sia Dy Tuazon Ty and Coloma Law Offices and are, thus, presumably guided by more experienced litigators who should have been
able to competently advise them on what is expected of those who appear before this Court.
XIV
Diligence is even more important when the cause lawyers take upon themselves to defend involves assertions of fundamental
rights. By voluntarily taking up this case, petitioner and his co-counsels gave their "unqualified commitment to advance and
defend [it.]"484 The bare minimum of this commitment is to observe and comply with the deadlines set by a court.
Lawyers who wish to practice public interest litigation should be ever mindful that their acts and omissions before the courts do
not only affect themselves. In truth, by thrusting themselves into the limelight to take up the cudgels on behalf of a minority class,
they represent the hopes and aspirations of a greater mass of people, not always with the consent of all its members. Their errors
and mistakes have a ripple effect even on persons who did not agree with or had no opportunity to consent to the stratagems and
tactics they employed.
One who touts himself an advocate for the marginalized must know better than to hijack the cause of those whom he himself
proclaims to be oppressed. Public interest lawyering demands more than the cursory invocation of legal doctrines, as though they
were magical incantations swiftly disengaging obstacles at their mere utterance. Public interest advocacy is not about fabricating
prestige. It is about the discomfort of taking the cudgels for the weak and the dangers of standing against the powerful. The test of
how lawyers truly become worthy of esteem and approval is in how they are capable of buckling down in silence, anonymity, and
utter modesty—doing the spartan work of research and study, of writing and self-correction. It is by their grit in these
unassuming tasks, not by hollow, swift appeals to fame, that they are seasoned and, in due time, become luminaries, the standard
by which all others are measured.
Petitioner courted disaster for the cause he chose to represent. He must have known what was at stake. Yet, he came to this Court
scandalously unprepared, equipped with nothing more than empty braggadocio. For a shot at fame, he toyed with the hopes and
tribulations of a marginalized class.
By failing to represent his cause with even the barest competence and diligence, petitioner betrayed the standards of legal
practice. His failure to file the required memorandum on time is just the most recent manifestation of this betrayal. He
disrespected not only his cause, but also this Court—an unequivocal act of indirect contempt.
A person adjudged guilty of indirect contempt may be punished by a fine not exceeding P30,000.00 or imprisonment not
exceeding six (6) months, or both.485 To serve as a reminder to the bench and bar, and in light of petitioner's being earlier
adjudged guilty of contempt of court for a similar offense—for which he was specifically warned that any further contemptuous
acts shall be dealt with more severely—this Court, while declining to mete out the penalty of imprisonment by way of clemency,
imposes on petitioner the penalty of a fine.
Similarly, parties who come before this Court to intervene in a proceeding should be prepared to fully participate in all its stages,
whenever this Court requires them to. Records show that after oral arguments, intervenor-oppositor Perito also never filed a
memorandum pursuant to the June 26, 2018 Order. He has not made any manifestation or explanation for his noncompliance. His
failure to comply with this Court's order likewise constitutes indirect contempt.
What we do in the name of public interest should be the result of a collective decision that comes from well-thought-out
strategies of the movement in whose name we bring a case before this Court. Otherwise, premature petitions filed by those who
seek to see their names in our jurisprudential records may only do more harm than good. Good intentions are no substitute for
deliberate, conscious, and responsible action. Litigation for the public interest of those who have been marginalized and
oppressed deserves much more than the way that it has been handled in this case.
A Final Note
Our freedom to choose the way we structure our intimate relationships with our chosen significant other in a large sense defines
us as human beings. Even opposite-sex couples continually adjust the day-to-day terms of their partnership as their relationships
mature. It is in the sanctuary of their spaces that we authentically evolve, become better human beings, and thus contribute
meaningfully within our society. After all, the companionship and understanding that we inevitably discover with the person we
choose to spend the rest of our lives with provide the foundation for an ethic of care that enriches a democracy.
This Court sympathizes with the petitioner with his obvious longing to find a partner. We understand the desire of same-sex
couples to seek, not moral judgment based on discrimination from any of our laws, but rather, a balanced recognition of their
true, authentic, and responsive choices.
Yet, the time for a definitive judicial fiat may not yet be here. This is not the case that presents the clearest actual factual backdrop
to make the precise reasoned judgment our Constitution requires. Perhaps, even before that actual case arrives, our
democratically-elected representatives in Congress will have seen the wisdom of acting with dispatch to address the suffering of
many of those who choose to love distinctively, uniquely, but no less genuinely and passionately.
WHEREFORE, the Petition for Certiorari and Prohibition and the Petition-in-Intervention are DISMISSED.
This Court finds petitioner Atty. Jesus Nicardo M. Falcis III, his co-counsels Atty. Darwin P. Angeles, Atty. Keisha Trina M.
Guangko, Atty. Christopher Ryan R. Maranan, as well as intervenor-oppositor Atty. Fernando P. Perito, all GUILTY of INDIRECT
CONTEMPT OF COURT.
Atty. Falcis is sentenced to pay a fine of Five Thousand Pesos (P5,000.00) within thirty (30) days from notice. Atty. Angeles, Atty.
Guangko, Atty. Maranan, and Atty. Perito are REPRIMANDED and ADMONISHED to be more circumspect of their duties as
counsel. They are STERNLY WARNED that any further contemptuous acts shall be dealt with more severely.
Let copies of this Decision be included in the personal records of Atty. Falcis, Atty. Angeles, Atty. Guangko, Atty. Maranan, and
Atty. Perito, and entered in their files in the Office of the Bar Confidant.
SO ORDERED.
-Obergefell vs. Hodges http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
United States Supreme Court
OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.(2015)
No. 14-556
Argued: April 28, 2015Decided: June 26, 2015
Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-
sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States,
claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have
marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners' favor, but the Sixth
Circuit consolidated the cases and reversed.
Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a
marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3-28.
(a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before
the Court. Pp. 3-10.
(1) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the
respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from
seeking to devalue marriage, seek it for themselves because of their respect--and need--for its privileges and responsibilities, as
illustrated by the petitioners' own experiences. Pp. 3-6.
(2) The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the
abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of
marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed
understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new
generations.
This dynamic can be seen in the Nation's experience with gay and lesbian rights. Well into the 20th century, many States
condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and
political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue
followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts,
where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision
in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws
making same-sex intimacy a crime "demea[n] the lives of homosexual persons." Lawrence v. Texas, 539 U. S. 558, 575. In 2012,
the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage
cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 6-10.
(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10-27.
(1) The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal
choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.
See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484-486. Courts must exercise reasoned
judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition
guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution's
central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For
example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that
prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex
partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex
couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed
broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex
couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at
453-454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10-12.
(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply
with equal force to same-sex couples. The first premise of this Court's relevant precedents is that the right to personal choice
regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is
why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are
among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their
sexual orientation.
A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person
union unlike any other in its importance to the committed individuals. The intimate association protected by this right was
central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381
U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to
enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense.
See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related
rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition,
stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also
suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life.
The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not
mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a
married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate.
Finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of the Nation's social order.
See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the
center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to
this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are
consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a
central institution of the Nation's society, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the
central meaning of the fundamental right to marry is now manifest. Pp. 12-18.
(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment's guarantee of equal
protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty
and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be
instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal
Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring
fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings
can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has
invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra,
450 U. S. 455, 460-461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120-121.
The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of
gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden
the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal:
Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right.
Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to
disrespect and subordinate gays and lesbians. Pp. 18-22.
 (4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.
Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the
petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and
conditions as opposite-sex couples. Pp. 22-23.

(5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates,
and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced
understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change,
individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state
action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain
and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling
against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The
petitioners' stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer
these questions. Respondents' argument that allowing same-sex couples to wed will harm marriage as an institution rests on a
counterintuitive view of opposite-sex couples' decisions about marriage and parenthood. Finally, the First Amendment ensures
that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so
fulfilling and so central to their lives and faiths. Pp. 23-27.

(c) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-
sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to
recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. Pp. 27-28.

772 F. 3d 388, reversed.

-Chavez vs. Gonzalez, G.R. No. 168338 (February 15, 2008)
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondents.
DECISION
PUNO, C.J.:
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and
free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and
present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to
curtail this right, as in Adiong v. COMELEC,1 Burgos v. Chief of Staff,2 Social Weather Stations v. COMELEC,3 and Bayan v. Executive
Secretary Ermita.4 When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free
exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press
Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an
audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a
high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-
tapping.5 Later, in a Malacañang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete
version, and the other, a spliced, "doctored" or altered version, which would suggest that the President had instructed the
COMELEC official to manipulate the election results in the President’s favor. 6 It seems that Secretary Bunye admitted that the
voice was that of President Arroyo, but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged
authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman
Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.8
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies
of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act.
These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were
committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was
being committed in their presence.9
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after
media organizations "found to have caused the spread, the playing and the printing of the contents of a tape" of an alleged
wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was
going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by
the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his
intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, "I [have] asked the NBI
to conduct a tactical interrogation of all concerned." 10
5. On June 11, 2005, the NTC issued this press release: 11
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING
LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order not to unnecessarily aggravate the same, the
NTC warns all radio stations and television network owners/operators that the conditions of the authorization and
permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly
provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or
willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in
possession of alleged taped conversations which they claim involve the President of the Philippines and a
Commissioner of the COMELEC regarding supposed violation of election laws.
These personalities have admitted that the taped conversations are products of illegal wiretapping operations.
Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the
tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that
the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing
violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority
issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are
hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be
just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the
said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by
radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that "all radio
broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or
scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such
other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition." The foregoing directive
had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio,
broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene
disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or
treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the
provisions of said Circulars and their accompanying sanctions on erring radio and television stations and
their owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC
allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the
press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others,
that: 12
• NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP
& its members have always been committed to the exercise of press freedom with high sense of responsibility and
discerning judgment of fairness and honesty.
• NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship.
The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free
expression of views.
• What is being asked by NTC is that the exercise of press freedom [be] done responsibly.
• KBP has program standards that KBP members will observe in the treatment of news and public affairs programs.
These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or
rebellion.
 • The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or
commentaries.
• The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration
to the process being undertaken to verify and validate the authenticity and actual content of the same."
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC,
"praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings,
and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents." 13
Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to
information on matters of public concern,14 petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the
present that curtail the public’s rights to freedom of expression and of the press, and to information on matters of
public concern specifically in relation to information regarding the controversial taped conversion of President
Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by
respondents. 15
Respondents16 denied that the acts transgress the Constitution, and questioned petitioner’s legal standing to file the petition.
Among the arguments they raised as to the validity of the "fair warning" issued by respondent NTC, is that broadcast media enjoy
lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTC’s mandate to regulate
the telecommunications industry. 17 It was also stressed that "most of the [television] and radio stations continue, even to this
date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP." 18
D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the
broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free
speech, free expression and a free press. For another, the recipients of the press statements have not come forward—neither
intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does
not complain about restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege "such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
Court so largely depends for illumination of difficult constitutional questions." 19
But as early as half a century ago, we have already held that where serious constitutional questions are involved, "the
transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we
must, technicalities of procedure." 20 Subsequently, this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest, 21 in
keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our
society,22 we therefore brush aside technicalities of procedure and take cognizance of this petition,23 seeing as it involves a
challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent
of the right to information of the public. It is fundamental, however, that we need not address all issues but only the
most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the
press.
But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed,
the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now
beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints
allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and
their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between
print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing
blurring of the lines of distinction between print and broadcast media.
E. Re-examining The law on freedom of speech,
of expression and of the press
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.24
Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred
right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III,
Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights, 25 were considered the
necessary consequence of republican institutions and the complement of free speech.26 This preferred status of free speech has
also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all
nations.27
In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional
system. 28 This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own
lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of
freedom.29 Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at
bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.30 For it is only when the people have
unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted
words of Thomas Jefferson, we cannot both be free and ignorant.
E.1. Abstraction of Free Speech
Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights
provision on this basic freedom.31 What is embraced under this provision was discussed exhaustively by the Court in Gonzales v.
Commission on Elections, 32 in which it was held:
…At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any
matter of public interest without censorship and punishment. There is to be 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 substantive evil that Congress has a right to
prevent. 33
Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a
means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including
political, decision-making; and of maintaining the balance between stability and change.34 As early as the 1920s, the trend as
reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this
constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be
uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public
consequence.36 When atrophied, the right becomes meaningless.37 The right belongs as well -- if not more – to those who
question, who do not conform, who differ.38 The ideas that may be expressed under this freedom are confined not only to those
that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and
even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view
"induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 39 To paraphrase
Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 40
The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech,
print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The
protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or
appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures
the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational
ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that
are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or
publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v.
Dans,41 this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on
freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film,
television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print
media, as will be subsequently discussed.
E.2. Differentiation: The Limits & Restraints of Free Speech
From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not
susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision
prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, 42 nor is it an
"unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this
freedom."
Thus, all speech are not treated the same. 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.43 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. 44 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.45
Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied
differently to each category, either consciously or unconsciously. 46 A study of free speech jurisprudence—whether here or
abroad—will reveal that courts have developed different tests as to specific types or categories of speech in concrete
situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous
speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a
fair trial; and speech associated with rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a)
the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between
the speech restrained and the danger contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need
to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay
of interests observable in a given situation of type of situation; 49 and (c) the clear and present danger rule which rests on the
premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive,
"extremely serious and the degree of imminence extremely high." 50
As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger
test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and
present danger test. 51
E.3. In Focus: Freedom of the Press
Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its
practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most
pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their
government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep
government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and
its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:52
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 can be assuaged with the balm of
clear conscience.
Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from
certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat
the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or
public officials.
E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-Based Regulations
Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the
press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; 53 (3) freedom of
access to information; 54 and (4) freedom of circulation.55
Considering that petitioner has argued that respondents’ press statement constitutes a form of impermissible prior restraint, a
closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral)
regulations.
At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a
unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never
had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were
always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has
always been based on the circumstances of each case, including the nature of the restraint. And in its application in our
jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the
governmental issuance or act against the circumstances in which they operate, and then determining the appropriate
test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination.56 Freedom from prior restraint is largely freedom from government censorship of publications,
whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as
prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against
publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their
printing and publication, are deemed as previous restraint or censorship. 57 Any law or official that requires some form of
permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had
at the courts.
Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that
restrains speech is presumed invalid,58 and "any act that restrains speech is hobbled by the presumption of invalidity and should
be greeted with furrowed brows," 59 it is important to stress not all prior restraints on speech are invalid. Certain previous
restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as
against the appropriate test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A
distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of
the speech, or one that merely controls the time, place or manner, and under well defined standards; 60 or (2) a content-
based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. 61 The cast of the
restriction determines the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation, only a substantial governmental interest is required
for its validity.62 Because regulations of this type are not designed to suppress any particular message, they are not subject to the
strictest form of judicial scrutiny but an intermediate approach—somewhere between the mere rationality that is required of
any other law and the compelling interest standard applied to content-based restrictions.63 The test is
called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be
narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of
expression. The intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it
furthers an important or substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest
scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger
rule will it pass constitutional muster,65 with the government having the burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow this presumption, the content-based restraint will be struck down.66
With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained
would bring about— especially the gravity and the imminence of the threatened harm – otherwise the prior restraint will be
invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, "but only by showing a
substantive and imminent evil that has taken the life of a reality already on ground." 67 As formulated, "the question in every case
is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 68
The regulation which restricts the speech content must also serve an important or substantial government interest, which is
unrelated to the suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. 70 A
restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be
invalidated. 71 The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least
restrictive means undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-
based regulation,73 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. 74
Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger
rule, as they are content-based restrictions. The acts of respondents focused solely on but one object—a specific content—
fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not
merely provide regulations as to the time, place or manner of the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents’ argument that the challenged act is valid on the ground that broadcast media enjoys free speech
rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been
invoked to validate a content-based restriction on broadcast media.
The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books,
newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television
have been held to have limited First Amendment protection,75 and U.S. Courts have excluded broadcast media from the
application of the "strict scrutiny" standard that they would otherwise apply to content-based restrictions.76 According to U.S.
Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by
which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; 77 (b) its "pervasiveness"
as a medium; and (c) its unique accessibility to children.78 Because cases involving broadcast media need not follow "precisely
the same approach that [U.S. courts] have applied to other media," nor go "so far as to demand that such regulations serve
‘compelling’ government interests,"79 they are decided on whether the "governmental restriction" is narrowly tailored to
further a substantial governmental interest,"80 or the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and
print media. Nevertheless, a review of Philippine case law on broadcast media will show that—as we have deviated with
the American conception of the Bill of Rights81— we likewise did not adopt en masse the U.S. conception of free speech as
it relates to broadcast media, particularly as to which test would govern content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme
applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech
(e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has
constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear
and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or
broadcast media.
The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v.
Dans,82 wherein it was held that "[a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present
danger rule…"83
Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national
security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court
still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies
exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases
involving broadcast media. Thus:84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and
expression clause. The test for limitations on freedom of expression continues to be the clear and present
danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of
the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which
apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases
Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast
corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights
of others.
All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily,
however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to
newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a
patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of
communications, receives the most limited protection from the free expression clause. First, broadcast media have
established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts
the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the
same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and
current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and
regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and
magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their
message may be simultaneously received by a national or regional audience of listeners including the indifferent or
unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the
airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s
and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or
predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio
audience has lesser opportunity to cogitate analyze, and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into
account. The supervision of radio stations-whether by government or through self-regulation by the industry itself
calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it.
Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same
time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts
are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and
popular means of disseminating varying views on public issues, they also deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918
case of United States v. Bustos (37 Phil. 731) this Court was already stressing 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 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.
(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of
expression clauses of the Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of
treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that "the test
for limitations on freedom of expression continues to be the clear and present danger rule," for all forms of media,
whether print or broadcast. Indeed, a close reading of the above-quoted provisions would show that the differentiation that the
Court in Dans referred to was narrowly restricted to what is otherwise deemed as "unprotected speech" (e.g., obscenity, national
security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media
was "somewhat lesser in scope than the freedom accorded to newspaper and print media," it was not as to what test should be
applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected
speech. 85
In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,86 that the test to determine free
expression challenges was the clear and present danger, again without distinguishing the media. 87 Katigbak, strictly speaking,
does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to
movies,88 the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve
obscenity issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It
is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television reaches every home where there
is a set. Children then will likely be among the avid viewers of the programs therein shown…..It cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.
More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we
reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech
and of the press.89
This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the
broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based
regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,90 which also involved
broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of
advertising of political advertisements because the challenged restriction was content-neutral.91 And in a case involving due
process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC92 treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the media’s franchise,
without going into which test would apply.
That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the
statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and
censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but
have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that
owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints,
whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the
public in a number of respects, but are also seen as possible sources of harm.93
Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide
a rationale. However, cable and satellite television have enormously increased the number of actual and potential
channels. Digital technology will further increase the number of channels available. But still, the argument persists that
broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching
television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that
regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free
expression—in terms of diversity—comes not from government, but from private corporate bodies. These developments show a
need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. 94
The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be
industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press
the converged environment.95 Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This
similarities, 96 and the rationales used to support broadcast regulation apply equally to the Internet.97 Thus, it has been argued silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation.
that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or
develop a new regulatory framework and rationale to justify the differential treatment. 98
The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the
distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits
F. The Case At Bar and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case
basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions
of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for
Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at freedom is preferred than a blow too late.
bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest
scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present
danger rule. This rule applies equally to all kinds of media, including broadcast media. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official
statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation
between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of
This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the speech and of the press
presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the
basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of
speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants SO ORDERED.
to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar,
however, are confused and confusing, and respondents’ evidence falls short of satisfying the clear and present danger
test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape
recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two
versions, one supposed to be a "complete" version and the other, an "altered" version. Thirdly, the evidence of the respondents
on the who’s and the how’s of the wiretapping act is ambivalent, especially considering the tape’s different versions. The identity
of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this
case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-
wiretapping law.

We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the
press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only
an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but
their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is
just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the
press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the
preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the
press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with
the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means,
violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need
to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach
can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the
Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the
anti-wiretapping law clearly endangers the national security of the State.

This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the
Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the
Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not
reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as
Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech
uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept
of an "act" does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non
formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior
restraints on the right to free speech and press.

There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no
less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came
-David vs. Arroyo, 489 SCRA 160 ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
G.R. No. 171396 May 3, 2006 LOMIBAO, Respondents.

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA,
HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
x-------------------------------------x
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

x-------------------------------------x
G.R. No. 171409 May 3, 2006

G.R. No. 171424 May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents. LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS
x-------------------------------------x CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS
CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
G.R. No. 171485 May 3, 2006 EXECUTIVE SECRETARY, Respondents.

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR
C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT
INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY,
DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 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, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE SECRETARY, EDUARDO
ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR
GENERAL, ARTURO LOMIBAO, Respondents.
x-------------------------------------x
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior strength – the use of
force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of
the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving liberty, the scales
of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption
against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP
1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions,
are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for
being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017
declaring a state of national emergency, thus:

G.R. No. 171400 May 3, 2006 NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the
Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution
which states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act
of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme
Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists – the historical
enemies of the democratic Philippine State – who are now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering the growth of
the economy and sabotaging the people’s confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify
their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the
State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the
democratic Philippine State – and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;
WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of
the economy and sabotaging the people’s confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the
State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President
of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No.
1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to
immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been
filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated
February 24, 2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation
No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and
order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the
executive issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army (NPA), and
some members of the political opposition in a plot to unseat or assassinate President Arroyo. 4 They considered the aim to oust or
assassinate the President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and
G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in
determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017
was without factual bases. While he explained that it is not respondents’ task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio
Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show and
proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for bombings and
attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets
including some cabinet members and President Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to
attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA
parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were
two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National People’s Army
(NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents. 7 Prior to his arrest, Lt. San Juan
announced through DZRH that the "Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The
latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of responsible and trustworthy
officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported
that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his group’s plans if President Arroyo is ousted.
Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout
Ranger. Lim said "it was all systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed
Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way
they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately
took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
declared: "The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming
year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it
will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly
announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by
the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with
the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the President’s ouster is nearing its concluding stage in the first half of
2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also
considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests. 10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the
gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that
might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice
Secretary Raul Gonzales stated that political rallies, which to the President’s mind were organized for purposes of destabilization,
are cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including
media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members
of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were
violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was
used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same
evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in
Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-
list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG)
of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news
stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were
stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-
opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards – and the standards are - if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a
‘takeover.’" National Telecommunications’ Commissioner Ronald Solis urged television and radio networks to "cooperate" with
the government for the duration of the state of national emergency. He asked for "balanced reporting" from broadcasters when
covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is
threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman
of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985.
Beltran’s lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP
1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel
in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be
Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was summarized as follows:
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where
the "Batasan 5" decided to stay indefinitely.
A. PROCEDURAL:

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not
being raised in these petitions. 1) Whether the issuance of PP 1021 renders the petitions moot and academic.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et
al.), and 171424 (Legarda) have legal standing.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court
against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent. B. SUBSTANTIVE:

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency 1) Whetherthe Supreme Court can review the factual bases of PP 1017.
powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it
violates the constitutional guarantees of freedom of the press, of speech and of assembly. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding a. Facial Challenge
the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the term "emergency" refers
only to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the issuance
of PP 1017. b. Constitutional Basis

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the c. As Applied Challenge
House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of A. PROCEDURAL
expression" and "a declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the
armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do
so." First, we must resolve the procedural roadblocks.

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional I- Moot and Academic Principle
because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual
basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances.
One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple foundation --
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional
because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI,
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited
and (d) Section 1720 of Article XII of the Constitution.
powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there
must be some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful exercise by the preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the
President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued beginning and the end of the theory of judicial review.22
that "it amounts to an exercise by the President of emergency powers without congressional approval." In addition, petitioners
asserted that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code."
But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts may exercise such power
only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are "unconstitutional for being a question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the
violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information decision of the constitutional question must be necessary to the determination of the case itself.24
on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that
these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal.
Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being
An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and
"definite and concrete, touching the legal relations of parties having adverse legal interest;" a real and substantial controversy
171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as
admitting of specific relief.25 The Solicitor General refutes the existence of such actual case or controversy, contending that the
respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the people’s right to free
present petitions were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.
expression and redress of grievances.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, 26 so that a
declaration thereon would be of no practical use or value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on
ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and academic. During the
eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing
it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a law, it confers no
rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts
will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;31 second, the exceptional
character of the situation and the paramount public interest is involved; 32 third, when constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; 33 and fourth, the case is capable of repetition yet
evading review.34
All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant petitions.
Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being
raised affect the public’s interest, involving as they do the people’s basic rights to freedom of expression, of assembly and of the
press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.35 And lastly, respondents’ contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganiban’s Separate
Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justice’s very statement that an
otherwise "moot" case may still be decided "provided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance." The present case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private suits, standing is governed
by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or defended in the name of the real party in interest." Accordingly, the
"real-party-in interest" is "the party who stands to be benefited or injured by the judgment in the suit or the party entitled
to the avails of the suit."38 Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in assailing an
allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has to
adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins:40 "In matter of
mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled
that for a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who impugns the
validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain
direct injury as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,45 Manila
Race Horse Trainers’ Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines
v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to the "far-reaching implications" of the petition
notwithstanding its categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to
sue under the principle of "transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional right to
information and the equitable diffusion of natural resources are matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental importance
of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite
the lack of direct injury to the parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity as
taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing or spending powers, it
reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters, concerned citizens,
and legislators may be accorded standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which
must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as
legislators.
Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned
citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct injury" test
with respect to concerned citizens’ cases involving constitutional issues. It held that "there must be a showing that the citizen
personally suffered some actual or threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-
interest as it had not demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have standing to sue,
as they claim that the President’s declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus
impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with
petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal
arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of
whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient
to give it legal standing. Organizations may be granted standing to assert the rights of their members.65 We take judicial
notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal
standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the
mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry.
However, in view of the transcendental importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal
disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on
the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is
likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But
considering once more the transcendental importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of
judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the
validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To
paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical
matter. The petitions thus call for the application of the "transcendental importance" doctrine, a relaxation of the standing
requirements for the petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his
tenure of office or actual incumbency,67 may not be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial
branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great
and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this
does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people 68 but
he may be removed from office only in the mode provided by law and that is by impeachment. 69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue such
Proclamation.
The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-Chief power has
reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era
of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war always cuts across the line defining
"political questions," particularly those questions "in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government."75 Barcelon and Montenegro were in unison in declaring that the authority to
decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has
the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system of checks and balances, "under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was
almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable
question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the
latter case, ratiocinating that "in times of war or national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his
conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at bar -- echoed a principle similar
to Lansang. While the Court considered the President’s "calling-out" power as a discretionary power solely vested in his wisdom,
it stressed that "this does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is mainly
a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit,
the discretion of the political departments of the government.81 It speaks of judicial prerogative not only in terms of power but
also of duty.82
As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision is correct," but that "the President did not act arbitrarily." Thus,
the standard laid down is not correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that "it
is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis" and that if he fails,
by way of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond the
pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual
basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of
the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for
military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to
prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various
political theories relating to this subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the
problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a
fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the proscription of the law and sometimes even
against it."84 But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall
judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat,
suggesting that "the people have no other remedy in this, as in all other cases where they have no judge on earth, but to
appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of the State…
It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even
Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a
supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the people’s first intention is that the State shall not perish. 86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him, it would more
likely be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of
office of prescribed duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory,
thus:
Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures; for although they may
for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little
while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules for applying it. 89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet
the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies,
have employed the doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not
be used as a means for the defense of liberal institutions," provided it "serves to protect established institutions from the
danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous
forms of political life."92 He recognized the two (2) key elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the executive, while at the same time "imposing limitation
upon that power."93 Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success
of such a dictatorship: "The period of dictatorship must be relatively short…Dictatorship should always be strictly
legitimate in character…Final authority to determine the need for dictatorship in any given case must never rest with
the dictator himself…"94 and the objective of such an emergency dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a problem of concentrating power – in a government
where power has consciously been divided – to cope with… situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to
what end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The
emergency executive must be appointed by constitutional means – i.e., he must be legitimate; he should not enjoy power
to determine the existence of an emergency; emergency powers should be exercised under a strict time limitation; and
last, the objective of emergency action must be the defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar,
Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as solution to the vexing
problems presented by emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional
dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary
or even indispensable to the preservation of the State and its constitutional order…
2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will
constitute the dictator…
3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination…
 4) …all uses of emergency powers and all readjustments in the organization of the government should be effected in
pursuit of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is
absolutely necessary for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in
character or effect…
7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the
defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the
hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would
secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the
effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, "the
suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to
the nation is not based upon sound constitutional theory." To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator" is used
in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency
powers. However used, "constitutional dictatorship" cannot be divorced from the implication of suspension of the processes of
constitutionalism. Thus, they favored instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent
with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude
some indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in
discussing the meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental
power. He found that the really effective checks on despotism have consisted not in the weakening of government but, but rather
in the limiting of it; between which there is a great and very significant difference. In associating constitutionalism with
"limited" as distinguished from "weak" government, McIlwain meant government limited to the orderly procedure of
law as opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of
government to the governed.101
In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s "theory of prerogative,"
to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of constitutionalism" --- ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the
Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under
effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional
Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jackson’s "balanced
power structure."102 Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme
Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it
just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably
demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it
obliges him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement encroached on
both unprotected and protected rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech
cases, also known under the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call
upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104 the US Supreme Court held that
"we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment" (freedom of
speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence,
insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it
was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such summary
action’ is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the
otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that
conduct –even if expressive – falls within the scope of otherwise valid criminal laws that reflect legitimate state interests
in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only
"spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that
PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last
resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on
the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.108 A
writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties
and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise
the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s "very existence may cause others
not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to
remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws
and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was
held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the
statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the
challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of
common intelligence must necessarily guess at its meaning and differ as to its application."110 It is subject to the same
principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech
cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed
to establish that men of common intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my
direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111 this Court, through Mr.
Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three
days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out
power is that "whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless
violence, invasion or rebellion." Are these conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence
network, she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion
and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is
considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the
greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President’s authority to declare a "state of rebellion"
(in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s authority to declare a "state
of rebellion" emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of public moment or
interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency,
President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s extraordinary
power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the
exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not
written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist
in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza,114 an authority in
constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses
the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle
or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the
armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration
of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its
command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies;
(c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can
be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the
writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on
Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function of the President is to enforce the laws as well as
to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines,
he will, among others, "execute its laws."116 In the exercise of such function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed forces of the country,117 including the Philippine National
Police118 under the Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza,
and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted120 from Former
President Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article
VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the
Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations
promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to enforce
obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my
direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my
direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of
1987). She may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or
execution of constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental operations in pursuance
of his duties as administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or temporary interest
which only concern a particular officer or office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the President desires
to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by
Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under
the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to
promulgate "decrees." Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically
states that "[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a
House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyo’s exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and,
therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order
the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon
my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military
not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17,
Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business
affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without
any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business
affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the management, control and operation of the Manila Electric Company,
the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of
its effort to contain, solve and end the present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of Section 17,
Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare "a state of national emergency" and
to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other national
emergency." If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a
"state of national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration
of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first
authorize the President before he can declare a "state of national emergency." The logical conclusion then is that President
Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public
interest, is a different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different
clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and
considered in the light of each other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI
authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon
it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its
powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to
certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section
17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take
over or direct the operation of any privately owned public utility or business affected with public interest," it refers to
Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And
it is not claimed that express constitutional language grants this power to the President. The contention is that presidential
power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in
Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care that the Laws be
faithfully executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged
in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces
has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to
the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor
equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All
legislative Powers herein granted shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or
well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and
perception.127 Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads: a) economic,128 b) natural disaster,129 and c) national
security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.131 This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this
be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate
to the President the power to take over privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are exercised,
remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that
the Constitution has set up this form of government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share
the faith of other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the
history of the United States, the basic features of whose Constitution have been copied in ours, have specific functions of the
legislative branch of enacting laws been surrendered to another department – unless we regard as legislating the carrying out of
a legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was
engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional government, in
times of extreme perils more than in normal circumstances ‘the various branches, executive, legislative, and judicial,’ given the
ability to act, are called upon ‘to perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he
has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with
public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the
guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are
curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest
blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on
their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard their office as a possible
"source of destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away and dispersed"
when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from the implementation,
pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a statute or
ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a
particular case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its general purpose is to command the
AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted
President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal
arrest, search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The
answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of
situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this
were so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of
the Revised Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and commands of the
President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficient administration of law. Such rules and regulations
create no relation except between the official who issues them and the official who receives them. 139 They are based on and are
the product of, a relationship in which power is their source, and obedience, their object.140 For these reasons, one requirement
for these rules to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is invariably
associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our country, but
the international community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic slogans when it
comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions – or threats of the use of force as the most recent by the United States
against Iraq – consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter." The apparent
contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben
Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but
later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who
associate "terrorism" with any violent act by non-state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or
against systematic oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation Organization (PLO) – which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims – the Kashmiri resistance groups – who are terrorists in the perception of India,
liberation fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters for the United States, terrorists for the
Socialist camp – or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War
period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way –
because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its
actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in
a given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights
of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of
violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these
conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a non-
state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in spite of the emphasis in
the Preamble to the United Nations Charter! – has become even more serious in the present global power constellation: one
superpower exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium
powers are increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. An
illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act
as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It
must be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by
President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and
Increasing The Penalties for Membership in Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x
x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President
Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since there is no law defining
"acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute
terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without
warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the
calling-out power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that
the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and
appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such
acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against
unreasonable search and seizure 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."142 The plain import of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed
with power to issue or refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa
Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually released
for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure 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
an offense.
(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the inquest for the
charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that
some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David
was the leader of the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency
of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is
insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge
of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but
also their right to peaceably assemble.
Section 4 of Article III guarantees:
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.
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to
assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit
for the use of such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly.
They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of
that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers’ conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot
be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the
rights of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was 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. If the persons assembling have committed crimes elsewhere, if they have formed or are
engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere
participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No.
171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacañang’s directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly 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."149 Tolerance is the rule and limitation is the
exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens’ right
to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless
violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear
and present danger. Here, petitioners were not even notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a person’s right is restricted by
government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to
procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners’
narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribune’s offices were
searched without warrant;second, the police operatives seized several materials for publication; third, the search was conducted
at about 1:00 o’ clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a ‘strong presence,’ to tell media outlets not to connive or do anything that would help
the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the
standards –and the standards are if they would contribute to instability in the government, or if they do not subscribe to
what is in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’" National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state
of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and
seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age
and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic society rests in the SOLGEN BENIPAYO:
degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that --
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and
As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum" inspect and gather clippings from Daily Tribune or any other newspaper.
newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.
SR. ASSO. JUSTICE PUNO:

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under
the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of Is it based on any law?
being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry. SOLGEN BENIPAYO:

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum" newspapers in the As far as I know, no, Your Honor, from the facts, no.
above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the SR. ASSO. JUSTICE PUNO:
citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions So, it has no basis, no legal basis whatsoever?
because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it
involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative
democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy SOLGEN BENIPAYO:
encroachments thereon. The motto should always be obsta principiis.154
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not condone this. If the
Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune’s offices and the seizure of people who have been injured by this would want to sue them, they can sue and there are remedies for this.156
its materials for publication and other papers are illegal; and that the same are inadmissible "for any purpose," thus:
Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot
JUSTICE CALLEJO: be condoned, thus:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of CHIEF JUSTICE PANGANIBAN:
gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the
admissibility of these clippings that were taken from the Tribune?
There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for
I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I
any purpose.155
said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility.157
xxxxxxxxx
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in no
SR. ASSO. JUSTICE PUNO: constitutional or statutory breaches if applied according to their letter."

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you
have to go there at 1 o’clock in the morning and without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this
point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress
lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens’ rights under the Constitution, this Court has to declare such acts unconstitutional and
illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an integral part of
Well, it was the police that did that, Your Honor. Not upon my instructions. this ponencia.

SR. ASSO. JUSTICE PUNO: SUMMATION

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017.
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered this case The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU
moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence,
Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as
on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are
the transcendental issues raised by the parties should not be "evaded;" they must now be resolved to prevent future declared UNCONSTITUTIONAL.
constitutional aberration.
No costs.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent
or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving the President express or implied power (1) to SO ORDERED.
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra
vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the
absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as Commander-in-Chief –
addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard – that the
military and the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable
by Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no
law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFP’s authority in carrying
out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of
petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-
KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the
Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual
police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes
of action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this
Court from making any specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How
to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one
of the eternal balancing tasks of a democratic state.During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it
is possible to grant government the authority to cope with crises without surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the
governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call
by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII
of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned
public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e.
whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.
-Diocese of Bacolod vs. Comelec. GR No. 205728 (Jan. 21, 2015) Party List Akbayan
Party List Bayan Muna
G.R. No. 205728 January 21, 2015
Party List Anak Pawis
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF
IN HIS PERSONAL CAPACITY, Petitioners, During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate.
vs. Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians who helped
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents. in the passage of the RH Law but were not candidates for that election.

DECISION On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued a Notice to
Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the
LEONEN, J.: 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

"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 On February 25, 2013, petitioners replied10 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
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.
On February 27, 2013, COMELEC Law Department issued a letter12 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 silenton the
This case defines the extent that our people may shape the debates during elections. It is significant and of first impression. We remedies available to petitioners. The letter provides as follows:
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.
Dear Bishop Navarra:

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and temporary
restraining order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials2 dated It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given you notice on February
February 22, 2013 and letter3 issued on February 27, 2013. 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:

The facts are not disputed.

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

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 Description : FULL COLOR TARPAULIN
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 Image of : SEE ATTACHED PICTURES
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 Message : CONSCIENCE VOTE (ANTI RH) TEAM
Patay," while those who voted against it form "Team Buhay":7
BUHAY; (PRO RH) TEAM PATAY
TEAM BUHAY TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
Estrada, JV Angara, Juan Edgardo
OF THE DIOCESE OF BACOLOD CITY
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter The three (3) – day notice expired on February 25, 2013.

Pimentel, Koko Enrile, Jackie

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No. 9615 promulgated on
Trillanes, Antonio Escudero, Francis 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
Villar, Cynthia Hontiveros, Risa propaganda material, otherwise, we shall be constrained to file an election offense case against you.
Party List Buhay Legarda, Loren
We pray that the Catholic Church will be the first institution to help the Commission on Elections inensuring the conduct of
Party List Ang Pamilya Party List Gabriela
peaceful, orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof 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
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 comment17 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 TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]
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.
I
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 Constitution24 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 judicialintervention 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 decisionsof 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
viacertiorari, 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. Repolwas
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
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 tobe 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 Repoland decided that the status quo anteorder 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 Sorianoapplied 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 enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase 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
notice51 dated February 22,2013 and letter52 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.
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 ornot 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 affectingelections. Article IX-C, Section
2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(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 allquestions 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 out weighs 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. Corona60 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
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 lastresort, 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.
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 thatmay 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 reasons69 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 toassail 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 tofreely 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 isa 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 issuesinvolved 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 impression75 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:
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 raisedare 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 judgmentof 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 ofeach 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,
thiscourt 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 questionsthat 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 consideredas
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. COMELEC86 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.
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, asan 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, withdiscretionary 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 textof 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 respectand
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. Manglapus90 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 timethat 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. Singson92 and Coseteng v. Mitra Jr.93
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 quint essentially 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 ofa 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 arguedthat 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. x x x
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:
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.x x x (Emphasis and italics
supplied.)
....
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 rightto 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 everthere 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 ofthe administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a department
secretary whose acts as analter 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) whenthe 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)
The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat 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 whenthe 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 threatenedto prosecute private parties who seek to participate in the elections by calling attention to issues
they want debated by the publicin 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 theybelong 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:
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. COMELEC115 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:
....
(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) Based on the enumeration made on actsthat 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 bythe 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 Act124 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 ofthe 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 areasin 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 Officeror 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. 9006on "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 byany 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. COMELEC126 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
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 Sanidadwherein the columnists lost their ability to give their commentary on the issues involving the plebiscite,
National Press Clubdoes 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 merelya regulation on the campaigns of candidates vying for public office. Thus,
National Press Clubdoes 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:
....
(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 ifperformed 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 electionor 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 itsremoval 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:
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 Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe 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 messageas 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 inthis 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 onthe 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.
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 ofthe 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 isa 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 beaffected 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 publicaffairs, 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.
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 tarpaulinis
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 . . .
....
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.
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 belost 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, ofthe 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 toelect 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 tobe self-evident that when the
freedoms of speech, press and peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
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.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe 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 politicaland 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 civicminded deliberation."201 On the other
hand, commercial speech has been defined as speech that does "no more than propose a commercial transaction." 202 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 electoralmatter, 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:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of election campaigning
or partisan politicalactivity 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 official dom. 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
The 1927 case of People v. Titular210 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 muchto see this decision made the vehicle for the suppression
of public opinion."213
In 1983, Reyes v. Bagatsing214 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 ensurea 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 isat the core of the freedom of expression and must be protected by this court.
Justice Brion pointed out that freedomof 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 isindeed not absolute. Even some forms of protected speech are still subjectto 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.
Size limitations during elections hit ata 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 imposedare
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 tarpaulinas 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 ormeeting, 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 beinjurious 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. Williams237 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 outthe 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. Apurado240 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. Atienza246 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 mannerby 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:
[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 lawsrelated 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.
Respondents likewise cite the Constitution262 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:
....
(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 sizeof 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 thiscase 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 doneso. 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 thiscase 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, wellknown 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."
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 Billof 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 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 twotier 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 tofair access to opportunities for such liberties.287 Fair access to opportunity is suggested to mean
substantive equality and not mere formal equalitysince "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 betterendowed 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.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe 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 priorityto the enactment of measures that protect and enhance the right of all the
people to human dignity, reducesocial, 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 inthe 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
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 expenditurelimits 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 isslowing the increase in political costs, it may be more effective torely on
market forces toachieve 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.
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 toan 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 onthe basis of its content. For this purpose, it will notmatter 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 expression311 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 thatno 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.
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 inthe common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front dooror 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 thatthe 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 church."332 That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law
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. Noreligious
test shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free exercise and enjoyment
of religious profession and worship.323
The second aspect is atissue 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.
Definitely, the characterizations ofthe 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 ofa particular religion shall be the ones to determine whether a particular matter
shall be considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay 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 intoaccount 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
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 onthe tarpaulin is an This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a fundamental and
ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by petitioners are not binding primordial right by our Constitution. The expression in the medium chosen by petitioners deserves our protection.
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 doubtas to its nature as speech with political consequences and not religious speech. 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.
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 Austriacase such as "proceedings for excommunication, ordinations of SO ORDERED.
religious ministers, administration of sacraments and other activities withattached 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 inthe 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 anattempt to stereo type 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.

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 speechby 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.
-Reyes vs. Bagatsing, 125 SCRA 553
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected
area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to
hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to
the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short
program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace
and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its
personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the
local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and
rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983
was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the
organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a
fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which
strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific,
reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested,
however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be
held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may
be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the
matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the
ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial
of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a
rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute
resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the
Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly,
arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free
speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability
whether in libel 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 people
to meet peaceably for consultation and discussion of matters Of public concern.17 It is entitled to be accorded the utmost
deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of
a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice
Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free
speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v.
Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single
guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of
grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the
exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for
gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its
significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by
the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being
in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the
opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the
expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with
things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a
true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or
tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though
is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to
be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and
the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the
high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta
as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of
1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of
the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and
must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court
categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased
Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly
is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or
oposed march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the
City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our
conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute
of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De
permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,'
was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to
refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief
Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets
for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are
not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good
order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the
march would end at another park. As previously mentioned though, there would be a short program upon reaching the public
space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a
petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the
Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965
and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the
Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second
paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises
of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its
dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To
the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a
part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or
disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit
insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of
Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is
understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly.
Even if shown then to be applicable, that question the confronts this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the
limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted,
on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction
allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and
present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the
constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal
Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the
International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from
the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat,
it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent
on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes
discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance
by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is
not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to
public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then,
only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption — especially so where the assembly is scheduled for a specific public — place is that the
permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino
(PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to
hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that
there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different.
Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does
not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such
emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly.
Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel
Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by
petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place
and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and
rally.' " 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any
contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the
city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of
expression.
8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place.
It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly,
along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary, — even more so than on the other departments — rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with
what has been so 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.
-Bayan vs. Ermita, GR. 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.
x---------------------------------x
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 GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.
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.
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:

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

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."
G.R. No. 169881 April 25, 2006

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for
KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,
redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President,
exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and
ROQUE M. TAN, Petitioners,
vs. Sec. 3. Definition of terms. – For purposes of this Act:
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO
ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.
(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
DECISION 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.
AZCUNA, J.:
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
Petitioners come in three groups.
shall be faithfully observed.

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
The definition herein contained shall not include picketing and other concerted action in strike areas by workers and
rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently
employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by
dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
the Batas Pambansa Bilang 227.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza,
injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently
square, and/or any open space of public ownership where the people are allowed access.
dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacañang to
 (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.
(b) The application shall incorporate the duty and responsibility of the 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.
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.
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;|avvphi|.net
(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;
(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 shall not constitute a
ground for dispersal.
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;
(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.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex "A" to
the Petition in G.R. No. 169848, thus:
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 duly 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.
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.
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. Comelec8 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 Court9 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?
(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 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
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.
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 to enact
ordinances for the purpose.18
Reyes v. Bagatsing19 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 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.
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.
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
regulation, 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
6. x x x 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. 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."
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. x x x.
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, 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
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 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.
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.
(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 assemblies22 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
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.
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, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x
x.
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. 716024 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.
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
(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.
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.1avvphil.net 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 shall not constitute a
ground for dispersal.
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.
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
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.

No costs.

SO ORDERED.

-Estrada v. Escritor, AM No. P-02-1651, June 22, 2006
A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands before the Court
invoking her religious freedom and her Jehovah God in a bid to save her family – united without the benefit of legal marriage -
and livelihood. The State, on the other hand, seeks to wield its power to regulate her behavior and protect its interest in marriage
and family and the integrity of the courts where respondent is an employee. How the Court will tilt the scales of justice in the case
at bar will decide not only the fate of respondent Escritor but of other believers coming to Court bearing grievances on their free
exercise of religion. This case comes to us from our remand to the Office of the Court Administrator on August 4, 2003. 1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes, Jr., presiding
judge of Branch 253, Regional Trial Court of Las Piñas City, for an investigation of respondent Soledad Escritor, court interpreter
in said court, for living with a man not her husband, and having borne a child within this live-in arrangement. Estrada believes
that Escritor is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.2 Consequently, respondent was charged with committing
"disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband having died in
1998.4 She admitted that she started living with Luciano Quilapio, Jr. without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman. She also admitted that she and Quilapio have a son. 5 But as a
member of the religious sect known as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with their religious beliefs and has the approval of her congregation. 6 In
fact, after ten years of living together, she executed on July 28, 1991, a "Declaration of Pledging Faithfulness." 7
For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been abandoned by their spouses to
enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over
the world except in countries where divorce is allowed. As laid out by the tenets of their faith, the Jehovah’s congregation
requires that at the time the declarations are executed, the couple cannot secure the civil authorities’ approval of the marital
relationship because of legal impediments. Only couples who have been baptized and in good standing may execute the
Declaration, which requires the approval of the elders of the congregation. As a matter of practice, the marital status of the
declarants and their respective spouses’ commission of adultery are investigated before the declarations are executed.8 Escritor
and Quilapio’s declarations were executed in the usual and approved form prescribed by the Jehovah’s Witnesses,9 approved by
elders of the congregation where the declarations were executed,10 and recorded in the Watch Tower Central Office.11
Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are lifted, the validity of the
declarations ceases, and the couple should legalize their union. In Escritor’s case, although she was widowed in 1998, thereby
lifting the legal impediment to marry on her part, her mate was still not capacitated to remarry. Thus, their declarations remained
valid.12 In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her conjugal arrangement
does not constitute disgraceful and immoral conduct for which she should be held administratively liable,13 the Court had to
determine the contours of religious freedom under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 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.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of the religion clauses in
the United States (U.S.) and the Philippines, we held that in resolving claims involving religious freedom (1) benevolent neutrality
or accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding respondent’s plea of exemption based on the Free Exercise Clause (from the law with which she
is administratively charged), it is the compelling state interest test, the strictest test, which must be applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of whether respondent
was to be held administratively liable for there was need to give the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to religious freedom. Thus, in the decision dated August 4, 2003, we
remanded the complaint to the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to
intervene in the case so it can:
(a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;
(b) present evidence on the state’s "compelling interest" to override respondent’s religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondent’s religious
freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS COURT SHOULD TAKE
IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION
BASED ON FREEDOM OF RELIGION. These issues have already been ruled upon prior to the remand, and constitute "the law of
the case" insofar as they resolved the issues of which framework and test are to be applied in this case, and no motion for its
reconsideration having been filed.16 The only task that the Court is left to do is to determine whether the evidence adduced by the
State proves its more compelling interest. This issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case interpreting the religious clauses of the
Constitution, made more than two years ago, is misplaced to say the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the same has attained finality and constitutes the law of
the case. Any attempt to reopen this final ruling constitutes a crass contravention of elementary rules of procedure. Worse,
insofar as it would overturn the parties’ right to rely upon our interpretation which has long attained finality, it also runs counter
to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice Carpio’s belated
attempts to disturb settled issues, and that he had timely presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion clauses, because "one
cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious freedom in
the recent past in the United States without a deep appreciation of the roots of these controversies in the ancient and medieval
world and in the American experience."17 We delved into the conception of religion from primitive times, when it started out as
the state
itself, when the authority and power of the state were ascribed to God.18 Then, religion developed on its own and became
superior to the state,19 its subordinate,20 and even becoming an engine of state policy.21
We ascertained two salient features in the review of religious history: First, with minor exceptions, the history of church-state
relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of
the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular
powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religion’s invaluable service.
This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw
its birth in American constitutional democracy and in human history. 22
Strictly speaking, the American experiment of freedom and separation was not translated in the First Amendment. That
experiment had been launched four years earlier, when the founders of the republic carefully withheld from the new national
government any power to deal with religion. As James Madison said, the national government had no "jurisdiction" over religion
or any "shadow of right to intermeddle" with it. 23
The omission of an express guaranty of religious freedom and other natural rights, however, nearly prevented the ratification of
the Constitution. The restriction had to be made explicit with the adoption of the religion clauses in the First Amendment as they
are worded to this day. Thus, the First Amendment did not take away or abridge any power of the national government; its intent
was to make express the absence of power.24 It commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory purposes. They have a
single goal—to promote freedom of individual religious beliefs and practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the Establishment
Clause prohibits government from inhibiting religious belief with rewards for religious beliefs and practices. In other words, the
two religion clauses were intended to deny government the power to use either the carrot or the stick to influence individual
religious beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion as an engine to
promote state interests, to the principle of non-establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses’ interpretation and construction in the United States, not because we are bound by
their interpretation, but because the U.S. religion clauses are the precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with inconsistencies
whether within a Court decision or across decisions. For while there is widespread agreement regarding the value of the First
Amendment religion clauses, there is an equally broad disagreement as to what these clauses specifically require, permit and
forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the
paucity of records in the U.S. Congress renders it difficult to ascertain its meaning.27
U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion clauses. First is the
standard of separation, which may take the form of either (a) strict separation or (b) the tamer version of strict neutrality or
separation, or what Mr. Justice Carpio refers to as the second theory of governmental neutrality. Although the latter form is not as
hostile to religion as the former, both are anchored on the Jeffersonian premise that a "wall of separation" must exist between the
state and the Church to protect the state from the church.28 Both protect the principle of church-state separation with a rigid
reading of the principle. On the other hand, the second standard, the benevolent neutrality or accommodation, is buttressed by
the view that the wall of separation is meant to protect the church from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church, and the state’s
hostility towards religion allows no interaction between the two. According to this Jeffersonian view, an absolute barrier to
formal interdependence of religion and state needs to be erected. Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on
believers.29 Only the complete separation of religion from politics would eliminate the formal influence of religious institutions
and provide for a free choice among political views, thus a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary practice that
enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostly
indirect aid from religion.31 For example, less than twenty-four hours after Congress adopted the First Amendment’s prohibition
on laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings
enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and
Prayer.32 Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has never
existed and is never likely to.33
The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the governmental neutrality
theory) finds basis in Everson v. Board of Education,34 where the Court declared that Jefferson’s "wall of separation" encapsulated
the meaning of the First Amendment. However, unlike the strict separationists, the strict neutrality view believes that the "wall of
separation" does not require the state to be their adversary. Rather, the state must be neutral in its relations with groups of
religious believers and non-believers. "State power is no more to be used so as to handicap religions than it is to favor
them."35 The strict neutrality approach is not hostile to religion, but it is strict in holding that religion may not be used as a basis
for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of government action. It does not permit, much less require, accommodation of
secular programs to religious belief.36
The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment Clause, it could lead to a
de facto voiding of religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion
in Abington School District v. Schempp,37 strict neutrality could lead to "a brooding and pervasive devotion to the secular and a
passive, or even active, hostility to the religious" which is prohibited by the Constitution.38 Professor Laurence Tribe commented
in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly envisioned religion as something special; they enacted that vision
into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the [U.S.] Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality, is that while the
Jeffersonian wall of separation "captures the spirit of the American ideal of church-state separation," in real life, church and state
are not and cannot be totally separate. This is all the more true in contemporary times when both the government and religion
are growing and expanding their spheres of involvement and activity, resulting in the intersection of government and religion at
many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of separation," associated with
Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect the state from the church, the
wall is meant to protect the church from the state.41 This doctrine was expressed in Zorach v. Clauson,42 which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State.
Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship
would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive;
the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other references
to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious
atheist or agnostic could even object to the supplication with which the Court opens each session: "God save the United States and
this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses.
. . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public
events, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for
government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence. 43
Benevolent neutrality recognizes that religion plays an important role in the public life of the United States as shown by many
traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the
inscription of "In God We Trust" on American currency; the recognition of America as "one nation under God" in the official
pledge of allegiance to the flag; the Supreme Court’s time-honored practice of opening oral argument with the invocation "God
save the United States and this Honorable Court"; and the practice of Congress and every state legislature of paying a chaplain,
usually of a particular Protestant denomination, to lead representatives in prayer. These practices clearly show the preference for
one theological viewpoint—the existence of and potential for intervention by a god—over the contrary theological viewpoint of
atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in
the treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension. 44
Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S. Court declaring the
following acts as constitutional: a state hiring a Presbyterian minister to lead the legislature in daily prayers, 45 or requiring
employers to pay workers compensation when the resulting inconsistency between work and Sabbath leads to discharge; 46 for
government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior; 47 or to
provide religious school pupils with books;48 or bus rides to religious schools;49 or with cash to pay for state-mandated
standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in relation to
governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as unconstitutional, either because
it violates the Free Exercise Clause or the Establishment Clause or both. This is true whether one subscribes to the separationist
approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general applicability, but may
incidentally or inadvertently aid or burden religious exercise. Though the government action is not religiously motivated, these
laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may be
allowed, not to promote the government’s favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. The purpose of accommodations 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." 51 In the ideal
world, the legislature would recognize the religions and their practices and would consider them, when practical, in enacting laws
of general application. But when the legislature fails to do so, religions that are threatened and burdened may turn to the courts
for protection.52
Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law, but
an exemption from its application or its "burdensome effect," whether by the legislature or the courts. 53 Most of the free exercise
claims brought to the U.S. Court are for exemption, not invalidation of the facially neutral law that has a "burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the case of Sherbert v.
Verner,55 which ruled that state regulation that indirectly restrains or punishes religious belief or conduct must be subjected to
strict scrutiny under the Free Exercise Clause.56 According to Sherbert, when a law of general application infringes religious
exercise, albeit incidentally, the state interest sought to be promoted must be so paramount and compelling as to override the
free exercise claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment was
terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme
Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional scrutiny, the
Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand
appellant’s constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by
the State of her constitutional right of free exercise, or because any incidental burden on the free exercise of appellant’s religion
may be justified by a "compelling state interest in the regulation of a subject within the State’s constitutional power to regulate. . .
."57 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of
the substantial infringement to the religious right and a colorable state interest. "(I)n this highly sensitive constitutional area,
‘[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’" 58 The Court found that
there was no such compelling state interest to override Sherbert’s religious liberty. It added that even if the state could show that
Sherbert’s exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it
was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without
infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The
Court reasoned that upholding the denial of Sherbert’s benefits would force her to choose between receiving benefits and
following her religion. This choice placed "the same kind of burden upon the free exercise of religion as would a fine imposed
against (her) for her Saturday worship." This germinal case of Sherbert firmly established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a sincerely held religious
belief or practice, the state must justify the burden by demonstrating that the law embodies a compelling interest, that no less
restrictive alternative exists, and that a religious exemption would impair the state’s ability to effectuate its compelling interest.
As in other instances of state action affecting fundamental rights, negative impacts on those rights demand the highest level of
judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted in court-mandated religious exemptions from facially-
neutral laws of general application whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption was in order, notwithstanding
that the law of general application had a criminal penalty. Using heightened scrutiny, the Court overturned the conviction of
Amish parents for violating Wisconsin compulsory school-attendance laws. The Court, in effect, granted exemption from a
neutral, criminal statute that punished religiously motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance
interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause. Long before there was general acknowledgement of the need for universal education,
the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental
right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The values underlying these
two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise
Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the
exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal government in the exercise
of its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the
State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regulations of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their "actions" in refusing to send their children to the public high school; in this
context belief and action cannot be neatly confined in logic-tight compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject to heightened
scrutiny or compelling interest test if government substantially burdened the exercise of religion; (b) heightened scrutiny or
compelling interest test governed cases where the burden was direct, i.e., the exercise of religion triggered a criminal or civil
penalty, as well as cases where the burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government
benefit;63 and (c) the Court could carve out accommodations or exemptions from a facially neutral law of general application,
whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct beyond speech, press, or worship
was included in the shelter of freedom of religion. Neither Sherbert’s refusal to work on the Sabbath nor the Amish parents’
refusal to let their children attend ninth and tenth grades can be classified as conduct protected by the other clauses of the First
Amendment. Second, indirect impositions on religious conduct, such as the denial of twenty-six weeks of unemployment
insurance benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in Yoder, were
prohibited. Third, as the language in the two cases indicate, the protection granted was extensive. Only extremely strong
governmental interests justified impingement on religious conduct, as the absolute language of the test of the Free Exercise
Clause suggests. 64
Fourth, the strong language was backed by a requirement that the government provide proof of the important interest at stake
and of the dangers to that interest presented by the religious conduct at issue. Fifth, in determining the injury to the
government’s interest, a court was required to focus on the effect that exempting religious claimants from the regulation would
have, rather than on the value of the regulation in general. Thus, injury to governmental interest had to be measured at the
margin: assuming the law still applied to all others, what would be the effect of exempting the religious claimant in this case and
other similarly situated religious claimants in the future? Together, the fourth and fifth elements required that facts, rather than
speculation, had to be presented concerning how the government’s interest would be harmed by excepting religious conduct
from the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to prevent
manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of exaggeration of the
weight on the governmental interest side of the balance, by not allowing speculation about the effects of a decision adverse to
those interests nor accepting that those interests would be defined at a higher level of generality than the constitutional interests
on the other side of the balance. 66
Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously
motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices. Although the members of the U.S. Court often disagreed over
which governmental interests should be considered compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in favor of the free exercise of religion.67 Most scholars and
courts agreed that under Sherbert and Yoder, the Free Exercise Clause provided individuals some form of heightened scrutiny
protection, if not always a compelling interest one.68 The 1990 case of Employment Division, Oregon Department of Human
Resources v. Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a hallucinogenic substance.
Specifically, individuals challenged the state’s determination that their religious use of peyote, which resulted in their dismissal
from employment, was misconduct disqualifying them from receipt of unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption from an otherwise
valid law. Scalia said that "[w]e have never held that an individual’s religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of
our free exercise jurisprudence contradicts that proposition." 71 Scalia thus declared "that the right of free exercise does not
relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability of the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’" 72
Justice Scalia’s opinion then reviewed the cases where free exercise challenges had been upheld—such as Cantwell, Murdock,
Follet, Pierce, and Yoder—and said that none involved the free exercise clause claims alone. All involved "the Free Exercise Clause
in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents to direct
the education of their children." 73 The Court said that Smith was distinguishable because it did not involve such a "hybrid
situation," but was a free exercise claim "unconnected with any communicative activity or parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of unemployment benefits; it did
not create a basis for an exemption from criminal laws. Scalia wrote that "[e]ven if we were inclined to breathe into Sherbert
some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable
criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability that burden religion.
Justice Scalia said that "[p]recisely because ‘we are a cosmopolitan nation made up of people of almost conceivable religious
preference,’ and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the
highest order." The Court said that those seeking religious exemptions from laws should look to the democratic process for
protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling justification approach
were abandoned for evaluating laws burdening religion; neutral laws of general applicability only have to meet the rational basis
test, no matter how much they burden religion. 77
Justice O’Connor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest test, asserting that
"(t)he compelling state interest test effectuates the First Amendment’s command that religious liberty is an independent liberty,
that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling government interest ‘of the highest order.’" 78 She said that strict scrutiny is
appropriate for free exercise challenges because "[t]he compelling interest test reflects the First Amendment’s mandate of
preserving religious liberty to the fullest extent possible in a pluralistic society." 79
Justice O’Connor also disagreed with the majority’s description of prior cases and especially its leaving the protection of minority
religions to the political process. She said that, "First Amendment was enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting Justices agreed
with Justice O’Connor that the majority had mischaracterized precedents, such as in describing Yoder as a "hybrid" case rather
than as one under the free exercise clause. The dissent also argued that strict scrutiny should be used in evaluating government
laws burdening religion. 81
Criticism of Smith was intense and widespread.82 Academics, Justices, and a bipartisan majority of Congress noisily denounced
the decision.83 Smith has the rather unusual distinction of being one case that is almost universally despised (and this is not too
strong a word) by both the liberals and conservatives.84 Liberals chasten the Court for its hostility to minority faiths which, in
light of Smith’s general applicability rule, will allegedly suffer at the hands of the majority faith whether through outright hostility
or neglect. Conservatives bemoan the decision as an assault on religious belief leaving religion, more than ever, subject to the
caprice of an ever more secular nation that is increasingly hostile to religious belief as an oppressive and archaic anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of
free exercise jurisprudence.86 First, the First amendment was intended to protect minority religions from the tyranny of the
religious and political majority. 87 Critics of Smith have worried about religious minorities, who can suffer disproportionately
from laws that enact majoritarian mores.88 Smith, in effect would allow discriminating in favor of mainstream religious groups
against smaller, more peripheral groups who lack legislative clout,89 contrary to the original theory of the First
Amendment.90 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless minority
religions and Smith virtually wiped out their judicial recourse for exemption.91 Second, Smith leaves too much leeway for
pervasive welfare-state regulation to burden religion while satisfying neutrality. After all, laws not aimed at religion can hinder
observance just as effectively as those that target religion.92 Government impairment of religious liberty would most often be of
the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be
left almost meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine simply defies common sense. The state should not be
allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to pursue some trivial
state economic or bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively
pursue its objective without serious inadvertent impact on religion.95
At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and limiting the term
"religion" in today’s pluralistic society, and (2) the belief that courts have no business determining the significance of an
individual’s religious beliefs. For the Smith Court, these two concerns appear to lead to the conclusion that the Free Exercise
Clause must protect everything or it must protect virtually nothing. As a result, the Court perceives its only viable options are to
leave free exercise protection to the political process or to allow a "system in which each conscience is a law unto itself." 96 The
Court’s characterization of its choices have been soundly rejected as false, viz:
If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the Court has a stronger
argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to apply and this should not be applied at
all. The Constitution does not give the judiciary the option of simply refusing to interpret its provisions. The First Amendment
dictates that free exercise of "religion" must be protected. Accordingly, the Constitution compels the Court to struggle with the
contours of what constitutes "religion." There is no constitutional opt-out provision for constitutional words that are difficult to
apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area of middle ground
exists between the Court’s two opposing alternatives for free exercise jurisprudence. Unfortunately, this middle ground requires
the Court to tackle difficult issues such as defining religion and possibly evaluating the significance of a religious belief against the
importance of a specific law. The Court describes the results of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of religious practice," and then dismisses it as a "parade of horribles" that
is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious individuals; they would
undoubtedly prefer their religious beliefs to be probed for sincerity and significance rather than acquiesce to the Court’s
approach of simply refusing to grant any constitutional significance to their beliefs at all. If the Court is concerned about requiring
lawmakers at times constitutionally to exempt religious individuals from statutory provisions, its concern is misplaced. It is the
lawmakers who have sought to prevent the Court from dismantling the Free Exercise Clause through such legislation as the
[Religious Freedom Restoration Act of 1993], and in any case, the Court should not be overly concerned about hurting
legislature’s feelings by requiring their laws to conform to constitutional dictates. Perhaps the Court is concerned about putting
such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should be expected to
fulfill.97
Parenthetically, Smith’s characterization that the U.S. Court has "never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the state is free to regulate"—an assertion which Mr. Justice
Carpio adopted unequivocally in his dissent—has been sharply criticized even implicitly by its supporters, as blatantly untrue.
Scholars who supported Smith frequently did not do so by opposing the arguments that the Court was wrong as a matter of
original meaning [of the religion clauses] or that the decision conflicted with precedent [i.e. the Smith decision made shocking use
of precedent]—those points were often conceded. 98
To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in Yoder, by asserting that
these were premised on two constitutional rights combined—the right of parents to direct the education of their children and the
right of free exercise of religion. Under the Court’s opinion in Smith, the right of free exercise of religion standing alone would not
allow Amish parents to disregard the compulsory school attendance law, and under the Court’s opinion in Yoder, parents whose
objection to the law was not religious would also have to obey it. The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it prevail if combined? 99 As for Sherbert, the Smith Court attempted to limit
its doctrine as applicable only to denials of unemployment compensation benefits where the religiously-compelled conduct that
leads to job loss is not a violation of criminal law. And yet, this is precisely why the rejection of Sherbert was so damaging in its
effect: the religious person was more likely to be entitled to constitutional protection when forced to choose between religious
conscience and going to jail than when forced to choose between religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction especially from the religious community, and commentaries
insisted that the Court was allowing the Free Exercise Clause to disappear.101 So much was the uproar that a majority in Congress
was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.102 The RFRA was adopted to negate the Smith test
and require strict scrutiny for free exercise claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated
the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion."103 The Act
declares that its purpose is to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to
guarantee its application in all cases where free exercise of religion is substantially burdened; and to provide a claim of defense to
a person whose religious exercise is substantially burdened by government.104 The RFRA thus sought to overrule Smith and make
strict scrutiny the test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the RFRA unconstitutional, ruling that Congress had exceeded
its power under the Fourteenth Amendment in enacting the law. The Court ruled that Congress is empowered to enact laws "to
enforce the amendment," but Congress is not "enforcing" when it creates new constitutional rights or expands the scope of
rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect for the constitutional
decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through enshrinement in the Bill of Rights are not thereby banished
from the political process. Just as society believes in the negative protection accorded to the press by the First Amendment is
likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative
protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous Congress. Contrary to the
Court’s characterization of the RFRA as a kind of usurpation of the judicial power to say what the Constitution means, the law
offered no definition of Free Exercise, and on its face appeared to be a procedural measure establishing a standard of proof and
allocating the duty of meeting it. In effect, the Court ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The power of Congress to act towards the states in matters of
religion arises from the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give accommodations, is in
effect contrary to the benevolent neutrality or accommodation approach. Moreover, if we consider the history of the
incorporation of the religion clauses in the U.S., the decision in Smith is grossly inconsistent with the importance placed by the
framers on religious faith. Smith is dangerous precedent because it subordinates fundamental rights of religious belief and
practice to all neutral, general legislation. Sherbert recognized the need to protect religious exercise in light of the massive
increase in the size of government, the concerns within its reach, and the number of laws administered by it. However, Smith
abandons the protection of religious exercise at a time when the scope and reach of government has never been greater. It has
been pointed out that Smith creates the legal framework for persecution: through general, neutral laws, legislatures are now able
to force conformity on religious minorities whose practice irritate or frighten an intolerant majority. 109
The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating the Free Exercise Clause.
Smith left religious freedom for many in the hands of the political process, exactly where it would be if the religion clauses did not
exist in the Bill of Rights. Like most protections found in the Bill of Rights, the religion clauses of the First Amendment are most
important to those who cannot prevail in the political process. The Court in Smith ignores the fact that the protections found in
the Bill of Rights were deemed too important to leave to the political process. Because mainstream religions generally have been
successful in protecting their interests through the political process, it is the non-mainstream religions that are adversely affected
by Smith. In short, the U.S. Supreme Court has made it clear to such religions that they should not look to the First Amendment for
religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be constitutionally compelled,
i.e., required by the Free Exercise Clause; (b) those which are discretionary or legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause; and (c) those which the religion clauses prohibit. 111
Mandatory accommodation results when the Court finds that accommodation is required by the Free Exercise Clause, i.e, when
the Court itself carves out an exemption. This accommodation occurs when all three conditions of the compelling interest test are
met, i.e, a statute or government action has burdened claimant’s free exercise of religion, and there is no doubt as to the sincerity
of the religious belief; the state has failed to demonstrate a particularly important or compelling governmental goal in preventing
an exemption; and that the state has failed to demonstrate that it used the least restrictive means. In these cases, the Court finds
that the injury to religious conscience is so great and the advancement of public purposes is incomparable that only indifference
or hostility could explain a refusal to make exemptions. Thus, if the state’s objective could be served as well or almost as well by
granting an exemption to those whose religious beliefs are burdened by the regulation, the Court must grant the exemption. The
Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected
to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held that the
state unemployment compensation plan must accommodate the religious convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not required to, accommodate religious interests. The U.S.
Walz case illustrates this situation where the U.S. Supreme Court upheld the constitutionality of tax exemption given by New York
to church properties, but did not rule that the state was required to provide tax exemptions. The Court declared that "(t)he limits
of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free
Exercise Clause."113 Other examples are Zorach v. Clauson,114 allowing released time in public schools and Marsh v.
Chambers,115 allowing payment of legislative chaplains from public funds. Parenthetically, the Court in Smith has ruled that this is
the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative accommodation runs
afoul of the establishment or the free exercise clause, it results to a prohibited accommodation. In this case, the Court finds that
establishment concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the
Free Exercise Clause does not mean that all claims for free exercise exemptions are valid. 116 An example where accommodation
was prohibited is McCollum v. Board of Education,117 where the Court ruled against optional religious instruction in the public
school premises.118
Given that a free exercise claim could lead to three different results, the question now remains as to how the Court should
determine which action to take. In this regard, it is the strict scrutiny-compelling state interest test which is most in line with the
benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry out one’s duties to
a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religious freedom is seen as a substantive
right and not merely a privilege against discriminatory legislation. With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free exercise disputes arise
commonly when a law that is religiously neutral and generally applicable on its face is argued to prevent or burden what
someone’s religious faith requires, or alternatively, requires someone to undertake an act that faith would preclude. In essence,
then, free exercise arguments contemplate religious exemptions from otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the First Amendment’s
mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.120 Underlying the compelling state
interest test is the notion that free exercise is a fundamental right and that laws burdening it should be subject to strict
scrutiny.121
In its application, the compelling state interest test follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to
the government to demonstrate that the law or practice is necessary to the accomplishment of some important (or ‘compelling’)
secular objective and that it is the least restrictive means of achieving that objective. If the plaintiff meets this burden and the
government does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the
claimant’s beliefs must be ‘sincere’, but they need not necessarily be consistent, coherent, clearly articulated, or congruent with
those of the claimant’s religious denomination. ‘Only beliefs rooted in religion are protected by the Free Exercise Clause’; secular
beliefs, however sincere and conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the separationist approach, or the
benevolent neutrality approach. The benevolent neutrality approach has also further been split by the view that the First
Amendment requires accommodation, or that it only allows permissible legislative accommodations. The current prevailing view
as pronounced in Smith, however, is that that there are no required accommodation under the First Amendment, although it
permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis-à-vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately clear that one
cannot simply conclude that we have adopted—lock, stock and barrel—the religion clauses as embodied in the First Amendment,
and therefore, the U.S. Court’s interpretation of the same. Unlike in the U.S. where legislative exemptions of religion had to be
upheld by the U.S. Supreme Court as constituting permissive accommodations, similar exemptions for religion are mandatory
accommodations under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions contain provisions on tax exemption
of church property,123 salary of religious officers in government institutions,124 and optional religious instruction.125 Our own
preamble also invokes the aid of a divine being.126 These constitutional provisions are wholly ours and have no counterpart in the
U.S. Constitution or its amendments. They all reveal without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that requires accommodations in interpreting the religion
clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that the 1935
Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution is a misreading of the
ponencia. What the ponencia pointed out was that even as early as 1935, or more than three decades before the U.S. Court could
validate the exemption in Walz as a form or permissible accommodation, we have already incorporated the same in our
Constitution, as a mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S. Constitution, insofar as religious
accommodations are concerned. It is indubitable that benevolent neutrality-accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the Philippine Constitution.128 As stated in our Decision, dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First
Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the religious clauses also continued to
borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams of U.S.
jurisprudence [i.e., separation and benevolent neutrality]. One might simply conclude that the Philippine Constitutions and
jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when a
religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be adopted and
each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the
Court in Everson supports the separationist approach, Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses’ history. As a result, in a case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of
separation would not be breached if the Court grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions. It is a
cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect. From this
construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting
the religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the
constitution.129 [citations omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the religion clauses to effectively deny
accommodations on the sole basis that the law in question is neutral and of general application. For even if it were true that "an
unbroken line of U.S. Supreme Court decisions" has never held that "an individual’s religious beliefs [do not] excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," our own Constitutions have made
significant changes to accommodate and exempt religion. Philippine jurisprudence shows that the Court has allowed exemptions
from a law of general application, in effect, interpreting our religion clauses to cover both mandatory and permissive
accommodations.130
To illustrate, in American Bible Society v. City of Manila,131 the Court granted to plaintiff exemption from a law of general
application based on the Free Exercise Clause. In this case, plaintiff was required by an ordinance to secure a mayor’s permit and
a municipal license as ordinarily required of those engaged in the business of general merchandise under the city’s ordinances.
Plaintiff argued that this amounted to "religious censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious literature to the people of the Philippines." Although the
Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure
a license and pay a license fee or tax would impair its free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to
disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression
on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. (citations
omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of Schools. 132 The case involved
several Jehovah’s Witnesses who were expelled from school for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge, in violation of the Administrative Code of 1987. In resolving the religious freedom issue, a unanimous Court
overturned an earlier ruling denying such exemption,133 using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice
Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present
danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general application, on the strength directly of the Free
Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde Rope Workers
Union135 is an example of the application of Mr. Justice Carpio’s theory of permissive accommodation, where religious exemption
is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No. 3350 was questioned. The said R.A. exempt
employees from the application and coverage of a closed shop agreement—mandated in another law—based on religious
objections. A unanimous Court upheld the constitutionality of the law, holding that "government is not precluded from pursuing
valid objectives secular in character even if the incidental result would be favorable to a religion or sect." Interestingly, the
secular purpose of the challenged law which the Court upheld was the advancement of "the constitutional right to the free
exercise of religion."136
Having established that benevolent neutrality-accommodation is the framework by which free exercise cases must be decided,
the next question then turned to the test that should be used in ascertaining the limits of the exercise of religious freedom. In our
Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases involving purely conduct based on
religious belief, as in the case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and law. The Victoriano case
mentioned the "immediate and grave danger" test as well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag then
employed the "grave and immediate danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went
back to the "clear and present danger" test in the maiden case of American Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave and immediate danger" test involved, in one form or another, religious speech
as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the authority cited
by German has been overruled by Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case
that employed the "compelling state interest" test, but as explained previously, the use of the test was inappropriate to the facts
of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present
danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The
Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus
not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief.
The "compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different
effects on the state’s interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right
that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and humane society and establish a government." As held in Sherbert,
only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state
can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one,
for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state’s interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In
the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the applicability of the benevolent
neutrality framework and compelling state interest test, states that "[i]t is true that a test needs to be applied by the Court in
determining the validity of a free exercise claim of exemption as made here by Escritor." This assertion is inconsistent with the
position negating the benevolent neutrality or accommodation approach. If it were true, indeed, that the religion clauses do not
require accommodations based on the free exercise of religion, then there would be no need for a test to determine the validity of
a free exercise claim, as any and all claims for religious exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and mandatory accommodation
is more critically important in analyzing free exercise exemption claims because it forces the Court to confront how far it can
validly set the limits of religious liberty under the Free Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and instructive American jurisprudence (such as the
Smith case) just because it does not espouse the theory selected." He then asserts that the Smith doctrine cannot be dismissed
because it does not really espouse the strict neutrality approach, but more of permissive accommodation.
Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only legislative accommodations
are allowed under the Free Exercise Clause, it cannot be used in determining a claim of religion exemption directly anchored on
the Free Exercise Clause. Thus, even assuming that the Smith doctrine actually espouses the theory of accommodation or
benevolent neutrality, the accommodation is limited to the permissive, or legislative exemptions. It, therefore, cannot be used as a
test in determining the claims of religious exemptions directly under the Free Exercise Clause because Smith does not recognize
such exemption. Moreover, Mr. Justice Carpio’s advocacy of the Smith doctrine would effectively render the Free Exercise
protection—a fundamental right under our Constitution—nugatory because he would deny its status as an independent source of
right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We explained this process in detail, by
showing the questions which must be answered in each step, viz:
…First, "[H]as the statute or government action created a burden on the free exercise of religion?" The courts often look into the
sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the mere
claim of religious beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this
step, the government has to establish that its purposes are legitimate for the state and that they are compelling. Government
must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the legitimate goal of the state?" The analysis requires the state to
show that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to three situations of accommodation: First, mandatory
accommodation would result if the Court finds that accommodation is required by the Free Exercise Clause. Second, if the Court
finds that the State may, but is not required to, accommodate religious interests, permissive accommodation results. Finally, if the
Court finds that that establishment concerns prevail over potential accommodation interests, then it must rule that the
accommodation is prohibited.
One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive accommodation can carve out an exemption
from a law of general application. He posits the view that the law should prevail in the absence of a legislative exemption, and the
Court cannot make the accommodation or exemption.
Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of American Bible Society, Ebralinag,
and Victoriano demonstrate that our application of the doctrine of benevolent neutrality-accommodation covers not only the
grant of permissive, or legislative accommodations, but also mandatory accommodations. Thus, an exemption from a law of
general application is possible, even if anchored directly on an invocation of the Free Exercise Clause alone, rather than a
legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive accommodation based on
religious freedom has been granted with respect to one of the crimes penalized under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an exemption from a general federal
law criminalizing polygamy, even if it was proven that the practice constituted a religious duty under their faith. 140 In
contradistinction, Philippine law accommodates the same practice among Moslems, through a legislative act. For while the act of
marrying more than one still constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known as
the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy "shall not apply
to a person married…under Muslim law." Thus, by legislative action, accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our
Decision dated August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v. Malik,141 he stated that a Muslim Judge
"is not criminally liable for bigamy because Shari’a law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only" advocacy in this jurisdiction becomes
manifest. Having anchored his argument on the Smith doctrine that "the guaranty of religious liberty as embodied in the Free
Exercise Clause does not require the grant of exemptions from generally applicable laws to individuals whose religious practice
conflict with those laws," his theory is infirmed by the showing that the benevolent neutrality approach which allows for both
mandatory and permissive accommodations was unequivocally adopted by our framers in the Philippine Constitution, our
legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to the notion that
religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right and an independent source of
right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicable when the law in
question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded that there is no question
that in the Philippine context, accommodations are made, the question remains as to how far the exemptions will be made and
who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the question of mandatory accommodation is
uncertain, for Philippine law and jurisprudence have, in fact, allowed legislative accommodation. Second, the power of the Courts
to grant exemptions in general (i.e., finding that the Free Exercise Clause required the accommodation, or mandatory
accommodations) has already been decided, not just once, but twice by the Court. Thus, the crux of the matter is whether this
Court can make exemptions as in Ebralinag and the American Bible Society, in cases involving criminal laws of general
application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion clauses, the benevolent
neutrality-accommodation approach in Philippine jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory accommodations, was to address the
"inadvertent burdensome effect" that an otherwise facially neutral law would have on religious exercise. Just because the law is
criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise Clause. As stated by Justice O’Connor in her
concurring opinion in Smith, "[t]here is nothing talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate his religious conscience or intrude upon his
religious duties just as effectively as laws aimed at religion." 142
Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who are likewise
protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to protect adherents of minority
religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the
minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into
conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere
with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so necessary to the
common good that exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only indifference or hostility could explain a refusal to make
exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case when the religious practice is either unknown at the
time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation that allows accommodations
prevents needless injury to the religious consciences of those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect themselves in
the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied for the first time,
as an exemption of such nature, albeit by legislative act, has already been granted to Moslem polygamy and the criminal law of
bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights in the Bill of Rights. It has
been noted that unlike other fundamental rights like the right to life, liberty or property, the Religion Clauses are stated in
absolute terms, unqualified by the requirement of "due process," "unreasonableness," or "lawful order." Only the right to free
speech is comparable in its absolute grant. Given the unequivocal and unqualified grant couched in the language, the Court cannot
simply dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise that the law in question is a general
criminal law. 143 If the burden is great and the sincerity of the religious belief is not in question, adherence to the benevolent
neutrality-accommodation approach require that the Court make an individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach does not mean that the
Court ought to grant exemptions every time a free exercise claim comes before it. This is an erroneous reading of the framework
which the dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality is the lens with which the Court ought
to view religion clause cases, the interest of the state should also be afforded utmost protection. This is precisely the purpose of
the test—to draw the line between mandatory, permissible and forbidden religious exercise. Thus, under the framework, the
Court cannot simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the
orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses of the
Constitution.144 As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining
the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state
to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed.
We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its
merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that
benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal
towards which this approach is directed is the protection of religious liberty "not only for a minority, however small- not only for
a majority, however large but for each of us" to the greatest extent possible within flexible constitutional limits. 145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be resolved, upon which
remand was necessary, pertained to the final task of subjecting this case to the careful application of the compelling state interest
test, i.e., determining whether respondent is entitled to exemption, an issue which is essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officer’s report, 146 along with
the evidence submitted by the OSG, this case is once again with us, to resolve the penultimate question of whether respondent
should be found guilty of the administrative charge of "disgraceful and immoral conduct." It is at this point then that we examine
the report and documents submitted by the hearing officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and centrality of respondent’s
claimed religious belief and practice are beyond serious doubt. 147 Thus, having previously established the preliminary conditions
required by the compelling state interest test, i.e., that a law or government practice inhibits the free exercise of respondent’s
religious beliefs, and there being no doubt as to the sincerity and centrality of her faith to claim the exemption based on the free
exercise clause, the burden shifted to the government to demonstrate that the law or practice justifies a compelling secular
objective and that it is the least restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering paramount interests"
which could limit or override respondent’s fundamental right to religious freedom. Neither did the government exert any effort to
show that the means it seeks to achieve its legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach, Legal Representative
of the Watch Tower Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondent’s claimed religious belief and
practice.
2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003 issued and signed by Bro.
Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief and practice; and (2) to prove
that the Declaration of Pledging Faithfulness, being a purely internal arrangement within the congregation of the Jehovah’s
Witnesses, cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override respondent’s claimed
religious belief and practice, in order to protect marriage and the family as basic social institutions. The Solicitor General, quoting
the Constitution148 and the Family Code,149 argues that marriage and the family are so crucial to the stability and peace of the
nation that the conjugal arrangement embraced in the Declaration of Pledging Faithfulness should not be recognized or given
effect, as "it is utterly destructive of the avowed institutions of marriage and the family for it reduces to a mockery these legally
exalted and socially significant institutions which in their purity demand respect and dignity." 150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts that the State has a
compelling interest in the preservation of marriage and the family as basic social institutions, which is ultimately the public
policy underlying the criminal sanctions against concubinage and bigamy. He also argues that in dismissing the administrative
complaint against respondent, "the majority opinion effectively condones and accords a semblance of legitimacy to her patently
unlawful cohabitation..." and "facilitates the circumvention of the Revised Penal Code." According to Mr. Justice Carpio, by
choosing to turn a blind eye to respondent’s criminal conduct, the majority is in fact recognizing a practice, custom or agreement
that subverts marriage. He argues in a similar fashion as regards the state’s interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the institutions of marriage and the family, or even
in the sound administration of justice. Indeed, the provisions by which respondent’s relationship is said to have impinged, e.g.,
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles 334 and 349 of the Revised Penal Code, and
even the provisions on marriage and family in the Civil Code and Family Code, all clearly demonstrate the State’s need to protect
these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in our Constitution. It is a
fundamental right that enjoys a preferred position in the hierarchy of rights — "the most inalienable and sacred of human rights,"
in the words of Jefferson. Hence, it is not enough to contend that the state’s interest is important, because our Constitution itself
holds the right to religious freedom sacred. The State must articulate in specific terms the state interest involved in preventing
the exemption, which must be compelling, for only the gravest abuses, endangering paramount interests can limit the
fundamental right to religious freedom. To rule otherwise would be to emasculate the Free Exercise Clause as a source of right by
itself.
Thus, it is not the State’s broad interest in "protecting the institutions of marriage and the family," or even "in the sound
administration of justice" that must be weighed against respondent’s claim, but the State’s narrow interest in refusing to make an
exception for the cohabitation which respondent’s faith finds moral. In other words, the government must do more than assert
the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if
exemptions are granted.151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in enforcing its prohibition, in
order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or symbolic. The State cannot
plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling interest, if it does not, in
fact, attempt to enforce that prohibition. In the case at bar, the State has not evinced any concrete interest in enforcing the
concubinage or bigamy charges against respondent or her partner. The State has never sought to prosecute respondent nor her
partner. The State’s asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition. Incidentally,
as echoes of the words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision, dated August 4, 2003, to
deny the exemption would effectively break up "an otherwise ideal union of two individuals who have managed to stay together
as husband and wife [approximately twenty-five years]" and have the effect of defeating the very substance of marriage and the
family.
The Solicitor General also argued against respondent’s religious freedom on the basis of morality, i.e., that "the conjugal
arrangement of respondent and her live-in partner should not be condoned because adulterous relationships are constantly
frowned upon by society";152 and "that State laws on marriage, which are moral in nature, take clear precedence over the
religious beliefs and practices of any church, religious sect or denomination on marriage. Verily, religious beliefs and practices
should not be permitted to override laws relating to public policy such as those of marriage."153
The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her dissenting opinion to
our Decision dated August 4, 2003, which she offers again in toto. These arguments have already been addressed in our decision
dated August 4, 2003.154 In said Decision, we noted that Mme. Justice Ynares-Santiago’s dissenting opinion dwelt more on the
standards of morality, without categorically holding that religious freedom is not in issue.155 We, therefore, went into a discussion
on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses
prohibit the state from establishing a religion, including the morality it sanctions.156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for lawyers,157 or "public
morals" in the Revised Penal Code,158 or "morals" in the New Civil Code,159 or "moral character" in the
Constitution,160 the distinction between public and secular morality on the one hand, and religious morality, on the
other, should be kept in mind;161
(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests; 162
(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court
makes in the case at bar should be understood only in this realm where it has authority. 163
(d) Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held administratively liable. 164 Only one conduct is in
question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married
to another which Philippine law and jurisprudence consider both immoral and illegal.165
(e) While there is no dispute that under settled jurisprudence, respondent’s conduct constitutes "disgraceful and
immoral conduct," the case at bar involves the defense of religious freedom, therefore none of the cases cited by Mme.
Justice Ynares-Santiago apply.166 There is no jurisprudence in Philippine jurisdiction holding that the defense of
religious freedom of a member of the Jehovah’s Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conduct prejudicial to the
best interest of the service, and we reiterate that the dissent offends due process as respondent was not given an opportunity to
defend herself against the charge of "conduct prejudicial to the best interest of the service." Indeed, there is no evidence of the
alleged prejudice to the best interest of the service.168
Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent exemption from
the laws which respondent Escritor has been charged to have violated, the exemption would not apply to Catholics who have
secured church annulment of their marriage even without a final annulment from a civil court. First, unlike Jehovah’s Witnesses,
the Catholic faith considers cohabitation without marriage as immoral. Second, but more important, the Jehovah’s Witnesses have
standards and procedures which must be followed before cohabitation without marriage is given the blessing of the
congregation. This includes an investigative process whereby the elders of the congregation verify the circumstances of the
declarants. Also, the Declaration is not a blanket authority to cohabit without marriage because once all legal impediments for the
couple are lifted, the validity of the Declaration ceases, and the congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises the issue of equality
among religions, we look to the words of the Religion Clauses, which clearly single out religion for both a benefit and a burden:
"No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof…" On its face, the language
grants a unique advantage to religious conduct, protecting it from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a provision which puts religion on an equal footing with
other bases for action seems to be a curious reading. There are no "free exercise" of "establishment" provisions for science,
sports, philosophy, or family relations. The language itself thus seems to answer whether we have a paradigm of equality or
liberty; the language of the Clause is clearly in the form of a grant of liberty. 169
In this case, the government’s conduct may appear innocent and nondiscriminatory but in effect, it is oppressive to the minority.
In the interpretation of a document, such as the Bill of Rights, designed to protect the minority from the majority, the question of
which perspective is appropriate would seem easy to answer. Moreover, the text, history, structure and values implicated in the
interpretation of the clauses, all point toward this perspective. Thus, substantive equality—a reading of the religion clauses which
leaves both politically dominant and the politically weak religious groups equal in their inability to use the government (law) to
assist their own religion or burden others—makes the most sense in the interpretation of the Bill of Rights, a document designed
to protect minorities and individuals from mobocracy in a democracy (the majority or a coalition of minorities). 170
As previously discussed, our Constitution adheres to the benevolent neutrality approach that gives room for accommodation of
religious exercises as required by the Free Exercise Clause.171 Thus, in arguing that respondent should be held administratively
liable as the arrangement she had was "illegal per se because, by universally recognized standards, it is inherently or by its very
nature bad, improper, immoral and contrary to good conscience,"172 the Solicitor General failed to appreciate that benevolent
neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests.173
Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate that the state has used
the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal
of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious
liberties.174 Again, the Solicitor General utterly failed to prove this element of the test. Other than the two documents offered as
cited above which established the sincerity of respondent’s religious belief and the fact that the agreement was an internal
arrangement within respondent’s congregation, no iota of evidence was offered. In fact, the records are bereft of even a feeble
attempt to procure any such evidence to show that the means the state adopted in pursuing this compelling interest is the least
restrictive to respondent’s religious freedom.
Thus, we find that in this particular case and under these distinct circumstances, respondent Escritor’s conjugal arrangement
cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of
religion. The Court recognizes that state interests must be upheld in order that freedoms - including religious freedom - may be
enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than
the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the
state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to
subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
-Zabal vs Duterte G.R. No. 238467, February 12, 2019
G.R. No. 238467
MARK ANTHONY V. ZABAL, THITING ESTOSO JACOSALEM, AND ODON S. BANDIOLA, Petitioners
vs.
RODRIGO R. DUTERTE, President of the Republic of the Philippines; SALVADOR C. MEDIALDEA, Executive Secretary; and
EDUARDO M. ANO, [Secretary] of the Department of Interior and Local Government, Respondents
DECISION
DEL CASTILLO, J.:
Paradise is a place of bliss, felicity, and delight. 1 For Filipinos and foreign nationals alike, Boracay - a small island in Malay, Aklan,
with its palm-fringed, pristine white sand beaches, azure waters, coral reefs, rare seashells,2 and a lot more to offer,3 - is indeed a
piece of paradise. Unsurprisingly, Boracay is one of the country's prime tourist destinations. However, this island-paradise has
been disrespected, abused, degraded, over-used, and taken advantage of by both locals and tourists. Hence, the government gave
Boracay its much-needed respite and rehabilitation. However, the process by which the rehabilitation was to be implemented did
not sit well with petitioners, hence, the present petition.
The Case
Before this Court is a Petition for Prohibition and Mandamus with Application for Temporary Restraining Order, Preliminary
Injunction, and/or Status Quo Ante Order filed by petitioners Mark Anthony V. Zabal (Zabal), Thiting Estoso Jacosalem
(Jacosalem), and Odon S. Bandiola (Bandiola) against respondents President Rodrigo R. Duterte (President Duterte ), Executive
Secretary Salvador C. Medialdea, and Secretary Eduardo M. Año of the Department of Interior and Local Government (DILG).
The Parties
Zabal and Jacosalem are both residents of Boracay who, at the time of the filing of the petition, were earning a living from the
tourist activities therein. Zabal claims to build sandcastles for tourists while Jacosalem drives for tourists and workers in the
island. While not a resident, Bandiola, for his part, claims to occasionally visit Boracay for business and pleasure. The three base
their locus standi on direct injury and also from the transcendental importance doctrine. 4 Respondents, on the other hand, are
being sued in their capacity as officials of the government.
The Facts
Claiming that Boracay has become a cesspool, President Duterte first made public his plan to shut it down during a business
forum held in Davao sometime February 2018. 5 This was followed by several speeches and news releases stating that he would
place Boracay under a state of calamity. True to his words, President Duterte ordered the shutting down of the island in a cabinet
meeting held on April 4, 2018. This was confirmed by then Presidential Spokesperson Harry L. Roque, Jr. in a press briefing the
following day wherein he formally announced that the total closure of Boracay would be for a maximum period of six months
starting April 26, 2018. 6
Following this pronouncement, petitioners contend that around 630 police and military personnel were readily deployed to
Boracay including personnel for crowd dispersal management. 7 They also allege that the DILG had already released guidelines
for the closure. 8
Petitioners claim that ever since the news of Boracay's closure came about, fewer tourists had been engaging the services of Zabal
and Jacosalem such that their earnings were barely enough to feed their families. They fear that if the closure pushes through,
they would suffer grave and irreparable damage. Hence, despite the fact that the government was then yet to release a formal
issuance on the matter,9 petitioners filed the petition on April 25, 2018 praying that:
(a) Upon the filing of [the] petition, a TEMPORARY RESTRAINING ORDER (TRO) and/or a WRIT OF PRELIMINARY PROHIBITORY
INJUNCTION be immediately issued RESTRAINING and/or ENJOINING the respondents, and all persons acting under their
command, order, and responsibility from enforcing a closure of Boracay Island or from banning the petitioners, tourists, and non-
residents therefrom, and a WRIT OF PRELIMINARY MANDATORY INJUNCTION directing the respondents, and all persons acting
under their command, order, and responsibility to ALLOW all of the said persons to enter and/or leave Boracay Island
unimpeded;
(b) In the alternative, if the respondents enforce the closure after the instant petition is filed, that a STATUS QUO ANTE Order be
issued restoring and maintaining the condition prior to such closure;
(c) After proper proceedings, a judgment be rendered PERMANENTLY RESTRAINING and/or ENJOINING the respondents, and all
persons acting under their command, order, and responsibility from enforcing a closure of Boracay Island or from banning the
petitioners, tourists, and non-residents therefrom, and further DECLARING the closure of Boracay Island or the ban against
petitioners, tourists, and non-residents therefrom to be UNCONSTITUTIONAL.
Other reliefs just and equitable under the premises are similarly prayed for. 10
On May 18, 2018, petitioners filed a Supplemental Petition 11 stating that the day following the filing of their original petition or
on April 26, 2018, President Duterte issued Proclamation No. 475 12 formally declaring a state of calamity in Boracay and
ordering its closure for six months from April 26, 2018 to October 25, 2018. The closure was implemented on even date. Thus, in
addition to what they prayed for in their original petition, petitioners implore the Court to declare as unconstitutional
Proclamation No. 475 insofar as it orders the closure of Boracay and ban of tourists and nonresidents therefrom. 13
In the Resolutions dated April 26, 201814 and June 5, 2018, 15 the Court required respondents to file their Comment on the
Petition and the Supplemental Petition, respectively. Respondents filed their Consolidated Comment16 on July 30, 2018 while
petitioners filed their Reply 17 thereto on October 12, 2018.
On October 26, 2018, Boracay was reopened to tourism.
Petitioners' Arguments
Petitioners state that a petition for prohibition is the appropriate remedy to raise constitutional issues and to review and/or
prohibit or nullify, when proper, acts of legislative and executive officials. An action for mandamus, on the other hand, lies against
a respondent who unlawfully excludes another from the enjoyment of an entitled right or office. Justifying their resort to
prohibition and mandamus, petitioners assert that ( 1) this case presents constitutional issues, i.e., whether President Duterte
acted within the scope of the powers granted him by the Constitution in ordering the closure of Boracay and, whether the
measures implemented infringe upon the constitutional rights to travel and to due process of petitioners as well as of tourists and
non-residents of the island; and, (2) President Duterte exercised a power legislative in nature, thus unlawfully excluding the
legislative department from the assertion of such power.
As to the substantive aspect, petitioners argue that Proclamation No. 475 is an invalid exercise of legislative powers. They posit
that its issuance is in truth a law-making exercise since the proclamation imposed a restriction on the right to travel and
therefore substantially altered the relationship between the State and its people by increasing the former's power over the latter.
Simply stated, petitioners posit that Proclamation No. 475 partakes of a law the issuance of which is not vested in the President.
As such, Proclamation No. 475 must be struck down for being the product of an invalid exercise of legislative power.
Likewise, petitioners argue that Proclamation No. 475 is unconstitutional for infringing on the constitutional rights to travel and
to due process.
Petitioners point out that although Section 6, Article III of the Constitution explicitly allows the impairment of the right to travel,
two conditions, however, must concur to wit: (1) there is a law restricting the said right, and (2) the restriction is based on
national security, public safety or public health. For petitioners, neither of these conditions have been complied with. For one,
Proclamation No. 475 does not refer to any specific law restricting the right to travel. Second, it has not been shown that the
presence of tourists in the island poses any threat or danger to national security, public safety or public health.
As to the right to due process, petitioners aver that the same covers property rights and these include the right to work and earn
a living. Since the government, through Proclamation No. 475, restricted the entry of tourists and non-residents into the island,
petitioners claim that they, as well as all others who work, do business, or earn a living in the island, were deprived of the source
of their livelihood as a result thereof. Their right to work and earn a living was curtailed by the proclamation. Moreover, while
Proclamation No. 475 cites various violations of environmental laws in the island, these, for the petitioners, do not justify
disregard of the rights of thousands of law-abiding people. They contend that environmental laws provide for specific penalties
intended only for violators. Verily, to make those innocent of environmental transgressions suffer the consequences of the
Boracay closure is tantamount to violating their right to due process.
Petitioners likewise argue that the closure of Boracay could not be anchored on police power. For one, police power must be
exercised not by the executive but by legislative bodies through the creation of statutes and ordinances that aim to promote the
health, moral, peace, education, safety, and general welfare of the people. For another, the measure is unreasonably unnecessary
and unduly oppressive.
In their Supplemental Petition, petitioners aver that Proclamation No. 475 unduly impinges upon the local autonomy of affected
Local Government Units (LGUs) since it orders the said LGUs to implement the closure of Boracay and the ban of tourists and
non-residents therefrom. While petitioners acknowledge the President's power of supervision over LGUs, they nevertheless point
out that he does not wield the power of control over them. As such, President Duterte can only call the attention of the LGUs
concerned with regard to rules not being followed, which is the true essence of supervision, but he cannot lay down the rules
himself as this already constitutes control.
Finally, petitioners state that this case does not simply revolve on the need to rehabilitate Boracay, but rather, on the extent of
executive power and the manner by which it was wielded by President Duterte. To them, necessity does not justify the
President's abuse of power.
Respondents' Arguments
At the outset, respondents assert that President Duterte must be dropped as party-respondent in this case because he is immune
from suit. They also argue that the petition should be dismissed outright for lack of basis. According to respondents, prohibition
is a preventive remedy to restrain future action. Here, President Duterte had already issued Proclamation No. 475 and in fact, the
rehabilitation of the island was then already ongoing. These, according to respondents, have rendered improper the issuance of a
writ of prohibition considering that as a rule, prohibition does not lie to restrain an act that is already fait accompli. Neither
is mandamus proper. Section 3, Rule 65 of the Rules of Court provides that a mandamus petition may be resorted to when any
tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust, or station. Respondents argue that mandamus will not lie in this case because they were not
neglectful of their duty to protect the environment; on the contrary, they conscientiously performed what they were supposed to
do by ordering the closure of Boracay to give way to its rehabilitation. Thus, to them, mandamus is obviously inappropriate.
At any rate, respondents contend that there is no real justiciable controversy in this case. They see no clash between the right of
the State to preserve and protect its natural resources and the right of petitioners to earn a living. Proclamation No. 475 does not
prohibit anyone from being gainfully employed.
Respondents moreover maintain that the petition is in the nature of a Strategic Lawsuit Against Public Participation (SLAPP)
under Rule 6 of A.M. No. 09-6-8-SC or the Rules of Procedure for Environmental Cases, or a legal action filed to harass, vex, exert
undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of environmental rights. Respondents thus assert
that the petition must be dismissed since it was filed for the said sole purpose.
With regard to the substantive aspect, respondents contend that the issuance of Proclamation No. 475 is a valid exercise of
delegated legislative power, it being anchored on Section 16 of Republic Act (RA) No. 10121, otherwise known as the Philippine
Disaster Risk Reduction and Management Act of 2010, or the authority given to the President to declare a state of calamity, viz.:
SECTION 16. Declaration of State of Calamity. - The National Council shall recommend to the President of the Philippines the
declaration of a cluster of barangays, municipalities, cities, provinces, and regions under a state of calamity, and the lifting
thereof, based on the criteria set by the National Council. The President's declaration may warrant international humanitarian
assistance as deemed necessary.
They likewise contend that Proclamation No. 475 was issued pursuant to the President's executive power under Section 1, Article
VII of the Constitution. As generally defined, executive power is the power to enforce and administer laws. It is the power of
implementing the laws and enforcing their due observance. And in order to effectively discharge the enforcement and
administration of the laws, the President is granted administrative power over bureaus and offices, which includes the power of
control. The power of control, in turn, refers to the authority to direct the performance of a duty, restrain the commission of acts,
review, approve, reverse or modify acts and decisions of subordinate officials or units, and prescribe standards, guidelines, plans
and programs. Respondents allege that President Duterte's issuance of Proclamation No. 475 was precipitated by his approval of
the recommendation of the National Disaster Risk Reduction and Management Council (NDRRMC) to place Boracay under a state
of calamity. By giving his imprimatur, it is clear that the President merely exercised his power of control over the executive
branch.
In any case, respondents assert that the President has residual powers which are implied from the grant of executive power and
which are necessary for him to comply with his duties under the Constitution as held in the case of Marcos v. Manglapus. 18
In sum, respondents emphasize that the issuance of Proclamation No. 475 is within the ambit of the powers of the President, not
contrary to the doctrine of separation of powers, and in accordance with the mechanism laid out by the Constitution.
Further, respondents dispute petitioners' allegation that Proclamation No. 475 infringes upon the rights to travel and to due
process. They emphasize that the right to travel is not an absolute right. It may be impaired or restricted in the interest of
national security, public safety, or public health. In fact, there are already several existing laws which serve as statutory
limitations to the right to travel.
Anent the alleged violation of the right to due process, respondents challenge petitioners' claim that they were deprived of their
livelihood without due process. Respondents call attention to the fact that Zabal as sandcastle maker and Jacosalem as driver are
freelancers and thus belong to the infonnal economy sector. This means that their source of livelihood is never guaranteed and is
susceptible to changes in regulations and the overall business climate. In any case, petitioners' contentions must yield to the
State's exercise of police power. As held in Ermita-Malate Hotel & Motel Operators Association, Inc. v. The Hon. City Mayor of
Manila, 19 the mere fact that some individuals in the community may be deprived of their present business or of a particular mode
of living cannot prevent the exercise of the police power of the State. Indeed, to respondents, private interests should yield to the
reasonable prerogatives of the State for the public good and welfare, which precisely are the primary objectives of the
government measure herein questioned
Lastly, respondents insist that Proclamation No. 475 does not unduly transgress upon the local autonomy of the LGUs concerned.
Under RA 10121, it is actually the Local Disaster Risk Reduction Management Council concerned which, subject to several
criteria, is tasked to take the lead in preparing for, responding to, and recovering from the effects of any disaster when a state of
calamity is declared. In any case, the devolution of powers upon LGUs pursuant to the constitutional mandate of ensuring their
autonomy does not mean that the State can no longer interfere in their affairs. This is especially true in this case since Boracay's
environmental disaster cannot be treated as a localized problem that can be resolved by the concerned LGUs only. The magnitude
and gravity of the problem require the intervention and assistance of different national government agencies in coordination
with the concerned LGUs.
As a final point, respondents aver that the bottom line of petitioners' lengthy discourse and constitutional posturing is their
intention to re-open Boracay to tourists and non-residents for the then remainder of the duration of the closure and thus
perpetuate and further aggravate the island's environmental degradation. Respondents posit that this is unacceptable since
Boracay cannot be sacrificed for the sake of profit and personal convenience of the few.
Our Ruling
First, we discuss the procedural issues.
President Duterte is dropped as
respondent in this case
As correctly pointed out by respondents, President Duterte must be dropped as respondent in this case. The Court's
pronouncement in Professor David v. President Macapagal-Arroyo20 on the non-suability of an incumbent President cannot be any
clearer, viz.:
x x x Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official
duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. 21
Accordingly, President Duterte is dropped as respondent in this case.
Propriety of Prohibition and
Mandamus
Section 2, Rule 65 of the Rules of Court provides for a petition for prohibition as follows:
SEC. 2. Petition for prohibition. - When the proceedings of any tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or in excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.
xxxx
"Indeed, prohibition is a preventive remedy seeking that a judgment be rendered directing the defendant to desist from
continuing with the commission of an act perceived to be illegal. As a rule, the proper function of a writ of prohibition is to
prevent the performance of an act which is about to be done. It is not intended to provide a remedy for acts already
accomplished. "22
Mandamus, on the other hand, is provided for by Section 3 of the same Rule 65:
SEC. 3. Petition for mandamus. - When any tribunal, corporation, board, officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office, trust, station, or unlawfully excludes another from the
use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified
by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent.
xxxx
"As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the
performance of an act which the law enjoins as a duty resulting from an office, trust, or station." 23
It is upon the above-discussed contexts of prohibition and mandamus that respondents base their contention of improper
recourse. Respondents maintain that prohibition is not proper in this case because the closure of Boracay is already a fait
accompli. Neither is mandamus appropriate since there is no neglect of duty on their part as they were precisely performing their
duty to protect the environment when the closure was ordered.
Suffice it to state, however, that the use of prohibition and mandamus is not merely confined to Rule 65. These extraordinary
remedies may be invoked when constitutional violations or issues are raised. As the Court stated in Spouses Imbong v. Hon. Ochoa,
Jr.: 24
As far back as Tañada v. Angara, the Court has unequivocally declared that certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v. COMELEC, Aldaba v. COMELEC, Magallona v. Ermita, and countless others.
In Tañada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt
raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle the dispute. 'The question thus posed is judicial rather
than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. Once a 'controversy as
to the application or interpretation of constitutional provision is raised before this Court, as in the instant case, it becomes a legal
issue which the Court is bound by constitutional mandate to decide. x x x25 (Citations omitted; emphasis supplied)
It must be stressed, though, that resort to prohibition and mandamus on the basis of alleged constitutional violations is not
without limitations. After all, this Court does not have unrestrained authority to rule on just about any and every claim of
constitutional violation.26 The petition must be subjected to the four exacting requisites for the exercise of the power of judicial
review, viz.: (a) there must be an actual case or controversy; (b) the petitioners must possess locus standi; ( c) the question of
constitutionality must be raised at the earliest opportunity; and ( d) the issue of constitutionality must be the lis mota of the
case.27 Hence, it is not enough that this petition mounts a constitutional challenge against Proclamation No. 475. It is likewise
necessary that it meets the aforementioned requisites before the Court sustains the propriety of the recourse.
Existence of Requisites for Judicial
Review
In La Bugal-B'laan Tribal Association, Inc. v. Sec. Ramos,28 an actual case or controversy was characterized as a "case or
controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion. The power does not extend to hypothetical questions since any attempt at abstraction could only
lead to dialectics and barren legal question and to sterile conclusions unrelated to actualities." 29
The existence of an actual controversy in this case is evident. President Duterte issued Proclamation No. 475 on April 26, 2018
and, pursuant thereto, Boracay was temporarily closed the same day. Entry of non-residents and tourists to the island was not
allowed until October 25, 2018. Certainly, the implementation of the proclamation has rendered legitimate the concern of
petitioners that constitutional rights may have possibly been breached by this governmental measure. It bears to state that when
coupled with sufficient facts, "reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices
to provide a basis for mounting a constitutional challenge". 30 And while it may be argued that the reopening of Boracay has
seemingly rendered moot and academic questions relating to the ban of tourists and non-residents into the island, abstention
from judicial review is precluded by such possibility of constitutional violation and also by the exceptional character of the
situation, the paramount public interest involved, and the fact that the case is capable of repetition. 31
As to legal standing, petitioners assert that they were directly injured since their right to travel and, their right to work and earn a
living which thrives solely on tourist arrivals, were affected by the closure. They likewise want to convince the Court that the
issues here are of transcendental importance since according to them, the resolution of the same will have farreaching
consequences upon all persons living and working in Boracay; upon the Province of Aklan which is heavily reliant on the island's
tourism industry; and upon the whole country considering that fundamental constitutional rights were allegedly breached.
"Legal standing or locus standi is a party's personal and substantial interest in a case such that he has sustained or will sustain
direct injury as a result of the governmental act being challenged. It calls for more than just a generalized grievance. The term
'interest' means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest."32 There must be a present substantial interest and not a mere expectancy or a future,
contingent, subordinate, or consequential interest. 33
In Galicto v. Aquino III,34 the therein petitioner, Jelbert B. Galicto (Galicto) questioned the constitutionality of Executive Order No.
7 (E07) issued by President Benigno Simeon C. Aquino III, which ordered, among others, a moratorium on the increases in the
salaries and other forms of compensation of all government-owned-and-controlled corporations (GOCCs) and government
financial institutions. The Court held that Galicto, an employee of the GOCC Philhealth, has no legal standing to assail E07 for his
failure to demonstrate that he has a personal stake or material interest in the outcome of the case. His interest, if any, was
speculative and based on a mere expectancy. Future increases in his salaries and other benefits were contingent events or
expectancies to which he has no vested rights. Hence, he possessed no locus standi to question the curtailment thereof.
Here, as mentioned, Zabal is a sandcastle maker and Jacosalem, a driver.1avvphi1 The nature of their livelihood is one wherein
earnings are not guaranteed. As correctly pointed out by respondents, their earnings are not fixed and may vary depending on
the business climate in that while they can earn much on peak seasons, it is also possible for them not to earn anything on lean
seasons, especially when the rainy days set in. Zabal and Jacosalem could not have been oblivious to this kind of situation, they
having been in the practice of their trade for a considerable length of time. Clearly, therefore, what Zabal and Jacosalem could lose
in this case are mere projected earnings which are in no way guaranteed, and are sheer expectancies characterized as contingent,
subordinate, or consequential interest, just like in Galicto. Concomitantly, an assertion of direct injury on the basis of loss of
income does not clothe Zabal and Jacosalem with legal standing.
DECLARING A STATE OF CALAMITY IN THE BARANGAYS OF BALABAG, MANOC-MANOC AND Y APAK (ISLAND OF BORACAY) IN
THE MUNICIPALITY OF MALAY, AKLAN, AND TEMPORARY CLOSURE OF THE ISLAND AS A TOURIST DESTINATION
WHEREAS, Section 15, Article II of the 1987 Constitution states that the State shall protect and promote the right to health of the
people and instill health consciousness among them;
WHEREAS, Section 16, Article II of the 1987 Constitution provides that it is the policy of the State to protect and advance the right
of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature;
WHEREAS, Section 2, Article XII of the 1987 Constitution provides that the State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone;
WHEREAS, an Inter-Agency Task Force, composed of the Department of Environment and Natural Resources (DENR), the [DILG]
and the Department of Tourism (DOT), was established to evaluate the environmental state of the Island of Boracay, and
investigate possible violations of existing environmental and health laws, rules and regulations;

As to Bandiola, the petition is bereft of any allegation as to his substantial interest in the case and as to how he sustained direct
injury as a result of the issuance of Proclamation No. 475. While the allegation that he is a non-resident who occasionally goes to WHEREAS, the investigations and validation undertaken revealed that:
Boracay for business and pleasure may suggest that he is claiming direct injury on the premise that his right to travel was
affected by the proclamation, the petition fails to expressly provide specifics as to how. "It has been held that a party who assails a. There is a high concentration of fecal coliform in the Bolabog beaches located in the eastern side of Boracay Island
the constitutionality of a statute must have a direct and personal interest. [He] must show not only that the law or any due to insufficient sewer lines and illegal discharge of untreated waste water into the beach, with daily tests
governmental act is invalid, but also that [he] sustained or is in immediate danger of sustaining some direct injury as a result of conducted from 6 to 10 March 2018 revealing consistent failure in compliance with acceptable water standards, with
its enforcement, and not merely that [he] suffers thereby in some indefinite way. [He] must show that [he] has been or is about to an average result of 18,000 most probable number (MPN)/1 OOml, exceeding the standard level of 400 MPN/100ml;
be denied some right or privilege to which [he] is lawfully entitled or that [he] is about to be subjected to some burdens or
penalties by reason of the statute or act complained of." 35 Indeed, the petition utterly fails to demonstrate that Bandiola possesses
the requisite legal standing to sue. b. Most commercial establishments and residences are not connected to the sewerage infrastructure of Boracay
Island, and waste products are not being disposed through the proper sewerage infrastructures in violation of
environmental law, rules, and regulations;
Notwithstanding petitioners' lack of locus standi, this Court will allow this petition to proceed to its ultimate conclusion due to its
transcendental importance. After all, the rule on locus standi is a mere procedural technicality, which the Court, in a long line of
cases involving subjects of transcendental importance, has waived or relaxed, thus allowing nontraditional plaintiffs such as c. Only 14 out of 51 establishments near the shores of Boracay Island are compliant with the provision of Republic Act
concerned citizens, taxpayers, voters and legislators to sue in cases of public interest, albeit they may not have been personally (RA) No. 9275 or the Philippine Clean Water Act of 2004;
injured by a government act. 36 More importantly, the matters raised in this case, involved on one hand, possible violations of the
Constitution and, on the other, the need to rehabilitate the country's prime tourist destination. Undeniably, these matters affect
d. Dirty water results in the degradation of the coral reefs and coral cover of Boracay Island, which declined by
public interests and therefore are of transcendental importance to the people. In addition, the situation calls for review because
approximately 70.5% from 1988 to 2011, with the highest decrease taking place between 2008 and 2011 during a
as stated, it is capable of repetition, the Court taking judicial notice of the many other places in our country that are suffering from
period of increased tourist arrivals (approximately 38.4%);
similar environmental degradation.

e. Solid waste within Boracay Island is at a generation rate of 90 to 115 tons per day, while the hauling capacity of the
As to the two other requirements, their existence is indubitable. It will be recalled that even before a formal issuance on the
local government is only 30 tons per day, hence, leaving approximately 85 tons of waste in the Island daily;
closure of Boracay was made by the government, petitioners already brought the question of the constitutionality of the then
intended closure to this Court. And, a day after Proclamation No. 475 was issued, they filed a supplemental petition impugning its
constitutionality. Clearly, the filing of the petition and the supplemental petition signals the earliest opportunity that the f. The natural habitats of Puka shells, nesting grounds of marine turtles, and roosting grounds of flying foxes or fruit
constitutionality of the subject government measure could be raised. There can also be no denying that the very lis mota of this bats have been damaged and/or destroyed; and
case is the constitutionality of Proclamation No. 475.

g. Only four (4) out of nine (9) wetlands in Boracay Island remain due to illegal encroachment of structures, including
Defense of SLAPP 93 7 identified illegal structures constructed on forestlands and wetlands, as well as 102 illegal structures constructed
on areas already classified as easements, and the disappearance of the wetlands, which acts as natural catchments,
enhances flooding in the area;
Suffice it to state that while this case touches on the environmental issues in Boracay, the ultimate issue for resolution is the
constitutionality of Proclamation No. 475. The procedure in the treatment of a defense of SLAPP provided for under Rule 6 of the
Rules of Procedure for Environmental Cases should not, therefore, be made to apply. WHEREAS, the findings of the Department of Science and Technology (DOST) reveal that beach erosion is prevalent in Boracay
Island, particularly along the West Beach, where as much as 40 meters of erosion has taken place in the past 20 years from 1993
to 2003, due to storms, extraction of sand along the beach to construct properties and structures along the foreshore, and
Now as to the substantive issues.
discharge of waste water near the shore causing degradation of coral reefs and seagrass meadows that supply the beach with
sediments and serve as buffer to wave action;
We first quote in full Proclamation No. 475.

PROCLAMATION No. 475

WHEREAS, the DOST also reports that based on the 2010-2015 Coastal Ecosystem Conservation and Adaptive Management
Study of the Japan International Cooperation Agency, direct discharge of waste water near the shore has resulted in the frequent
algal bloom and coral deterioration, which may reduce the source of sand and cause erosion;
WHEREAS, the data from the Region VI - Western Visayas Regional Disaster Risk Reduction and Management Council shows that
the number of tourists in the island in a day amounts to 18,082, and the tourist arrival increased by more than 160% from 2012
to 2017;
WHEREAS, the continuous rise of tourist arrivals, the insufficient sewer and waste management system, and environmental
violations of establishments aggravate the environmental degradation and destroy the ecological balance of the Island of Boracay,
resulting in major damage to property and natural resources, as well as the disruption of the normal way of life of the people
therein;
WHEREAS, it is necessary to implement urgent measures to address the abovementioned human-induced hazards, to protect and
promote the health and well-being of its residents, workers and tourists, and to rehabilitate the Island in order to ensure the
sustainability of the area and prevent further degradation of its rich ecosystem;
WHEREAS, RA No. 9275 provides that the DENR shall designate water bodies, or portions thereof, where specific pollutants from
either natural or man-made source have already exceeded water quality guidelines as non-attainment areas for the exceeded
pollutants and shall prepare and implement a program that will not allow new sources of exceeded water pollutant in non-
attainment areas without a corresponding reduction in discharges from existing sources;
WHEREAS, RA No. 9275 also mandates the DENR, in coordination with other concerned agencies and the private sectors, to take
such measures as may be necessary to upgrade the quality of such water in non-attainment areas to meet the standards under
which it has been classified, and the local government units to prepare and implement contingency plans and other measures
including relocation, whenever necessary, for the protection of health and welfare of the residents within potentially affected
areas;
WHEREAS, Proclamation No. 1064 (s. 2006) classified the Island of Boracay into 3 77 .68 hectares of reserved forest land for
protection purposes and 628.96 hectares of agricultural land as alienable and disposable land;
WHEREAS, pursuant to the Regalian Doctrine, and as emphasized in recent jurisprudence, whereby all lands not privately owned
belong to the State, the entire island of Boracay is state-owned, except for lands already covered by existing valid titles;
WHEREAS, pursuant to RA No. 10121, or the Philippine Disaster Risk Reduction and Management Act of 2010, the National
Disaster Risk Reduction and Management Council has recommended the declaration of a State of Calamity in the Island of
Boracay and the temporary closure of the Island as a tourist destination to ensure public safety and public health, and to assist
the government in its expeditious rehabilitation, as well as in addressing the evolving socio-economic needs of affected
communities;
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue of the powers vested in me by the
Constitution and existing laws, do hereby declare a State of Calamity in the barangays of Balabag, Manoc-Manoc and Yapak
(Island of Boracay) in the Municipality of Malay, Aklan. In this regard, the temporary closure of the Island as a tourist destination
for six (6) months starting 26 April 2018, or until 25 October 2018, is hereby ordered subject to applicable laws, rules,
regulations and jurisprudence.
Concerned government agencies shall, as may be necessary or appropriate, undertake the remedial measures during a State of
Calamity as provided in RA No. 10121 and other applicable laws, rules and regulations, such as control of the prices of basic
goods and commodities for the affected areas, employment of negotiated procurement and utilization of appropriate funds,
including the National Disaster Risk Reduction and Management Fund, for relief and rehabilitation efforts in the area. All
departments and other concerned government agencies are also hereby directed to coordinate with, and provide or augment the
basic services and facilities of affected local government units, if necessary.
The State of Calamity in the Island of Boracay shall remain in force and effect until lifted by the President, notwithstanding the
lapse of the six-month closure period.
All departments, agencies and offices, including government-owned or controlled corporations and affected local government
units are hereby directed to implement and execute the abovementioned closure and the appropriate rehabilitation works, in
accordance with pertinent operational plans and directives, including the Boracay Action Plan.
The Philippine National Police, Philippine Coast Guard and other law enforcement agencies, with the support of the Armed Forces
of the Philippines, are hereby directed to act with restraint and within the bounds of the law in the strict implementation of the
closure of the Island and ensuring peace and order in the area.
The Municipality of Malay, Aklan is also hereby directed to ensure that no tourist will be allowed entry to the island of Boracay
until such time that the closure has been lifted by the President.
All tourists, residents and establishment owners in the area are also urged to act within the bounds of the law and to comply with
the directives herein provided for the rehabilitation and restoration of the ecological balance of the Island which will be for the
benefit of all concerned.
It must be noted at the outset that petitioners failed to present and establish the factual bases of their arguments because they
went directly to this Court. In ruling on the substantive issues in this case, the Court is, thus, constrained to rely on, and uphold
the factual bases, which prompted the issuance of the challenged proclamation, as asserted by respondents. Besides, executive
determinations, such as said factual bases, are generally final on this Court.37
The Court observes that the meat of petitioners' constitutional challenge on Proclamation No. 475 is the right to travel.
Clearly then, the one crucial question that needs to be preliminarily answered is - does Proclamation No. 475 constitute an
impairment on the right to travel?
The Court answers in the negative.
Proclamation No. 475 does not pose an
actual impairment on the right to travel
Petitioners claim that Proclamation No. 475 impairs the right to travel based on the following provisions:
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Philippines, by virtue of the powers vested in me by the
Constitution and existing laws, do hereby declare a State of Calamity in the barangays of Balabag, Manoc-Manoc and Yapak
(Island of Boracay) in the Municipality of Malay, Aldan. In this regard, the temporary closure of the Island as a tourist
destination for six (6) months starting 26 April 2018, or until 25 October 2018, is hereby ordered subject to applicable
laws, rules, regulations and jurisprudence.
xxxx
The Municipality of Malay, Aldan is also hereby directed to ensure that no tourist will be allowed entry to the island of
Boracay until such time that the closure has been lifted by the President.
xxxx
The activities proposed to be undertaken to rehabilitate Boracay involved inspection, testing, demolition, relocation, and
construction. These could not have been implemented freely and smoothly with tourists coming in and out of the island not only
because of the possible disruption that they may cause to the works being undertaken, but primarily because their safety and
convenience might be compromised. Also, the contaminated waters in the island were not just confined to a small manageable
area. The excessive water pollutants were all over Bolabog beach and the numerous illegal drainpipes connected to and
discharging wastewater over it originate from different parts of the island. Indeed, the activities occasioned by the necessary
digging of these pipes and the isolation of the contaminated beach waters to give way to treatment could not be done in the
presence of tourists. Aside from the dangers that these contaminated waters pose, hotels, inns, and other accommodations may
not be available as they would all be inspected and checked to determine their compliance with environmental laws. Moreover, it
bears to state that a piece-meal closure of portions of the island would not suffice since as mentioned, illegal drainpipes extend to
the beach from various parts of Boracay. Also, most areas in the island needed major structural rectifications because of
numerous resorts and tourism facilities which lie along easement areas, illegally reclaimed wetlands, and of forested areas that
were illegally cleared for construction purposes. Hence, the need to close the island in its entirety and ban tourists therefrom.
In fine, this case does not actually involve the right to travel in its essential sense contrary to what petitioners want to portray.
Any bearing that Proclamation No. 475 may have on the right to travel is merely corollary to the closure of Boracay and the ban of
tourists and non-residents therefrom which were necessary incidents of the island's rehabilitation. There is certainly no showing
that Proclamation No. 475 deliberately meant to impair the right to travel. Tue questioned proclamation is clearly focused on its
purpose of rehabilitating Boracay and any intention to directly restrict the right cannot, in any manner, be deduced from its
import. This is contrary to the import of several laws recognized as constituting an impairment on the right to travel
which directly impose restriction on the right, viz.:
[1] The Human Security Act of2010 or Republic Act (R.A.) No. 9372. The law restricts the right travel of an individual charged with
the crime of terrorism even though such person is out on bail.
[2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign Affairs or his authorized
consular officer may refuse the issuance of, restrict the use of, or withdraw, a passport of a Filipino citizen.
[3] The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the provisions thereof, the Bureau of Immigration, in
order to manage migration and curb trafficking in persons, issued Memorandum Order Radjr No. 2011-011, allowing its Travel
Control and Enforcement Unit to 'offload passengers with fraudulent travel documents, doubtful purpose of travel, including
possible victims of human trafficking' from our ports.
[4] The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as amended by R.A. No. 10022. In enforcement of said
law, the Philippine Overseas Employment Administration (POEA) may refuse to issue deployment permit[ s] to a specific country
that effectively prevents our migrant workers to enter such country.
[5] The Act on Violence Against Women and Children or R.A. No. 9262. The law restricts movement of an individual against whom
the protection order is intended.
[6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption Board may issue rules
restrictive of an adoptee's right to travel 'to protect the Filipino child from abuse, exploitation, trafficking and/or sale or any
other practice in connection with adoption which is harmful, detrimental, or prejudicial to the child.’ 38
In Philippine Association of Service Exporters, Inc. v. Hon. Drilon, 39 the Court held that the consequence on the right to travel of the
deployment ban implemented by virtue of Department Order No. 1, Series of 1998 of the Department of Labor and Employment
does not impair the right.
Also significant to note is that the closure of Boracay was only temporary considering the categorical pronouncement that it was
only for a definite period of six months.
Hence, if at all, the impact of Proclamation No. 475 on the right to travel is not direct but merely consequential; and, the same is
only for a reasonably short period of time or merely temporary.
In this light, a discussion on whether President Duterte exercised a power legislative in nature loses its significance. Since
Proclamation No. 475 does not actually impose a restriction on the right to travel, its issuance did not result to any substantial
alteration of the relationship between the State and the people. The proclamation is therefore not a law and conversely, the
President did not usurp the law-making power of the legislature.
For obvious reason, there is likewise no more need to determine the existence in this case of the requirements for a valid
impairment of the right to travel.
Even if it is otherwise, Proclamation
No. 475 must be upheld for being in
the nature of a valid police power
measure
Police power, amongst the three fundamental and inherent powers of the state, is the most pervasive and comprehensive.40 "It
has been defined as the 'state authority to enact legislation that may interfere with personal liberty or property in order to
promote general welfare."41 "As defined, it consists of (1) imposition or restraint upon liberty or property, (2) in order to foster
the common good. It is not capable of exact definition but has be purposely, veiled in general terms to underscore its all-
comprehensive embrace."42 The police power "finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the Charter"43 since "it is inborn in the very fact of statehood and sovereignty." 44 It is said to be the "inherent and
plenary power of the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of the society." 45 Thus,
police power constitutes an implied limitation on the Bill of Rights. 46 After all, "the Bill of Rights itself does not purport to be an
absolute guaranty of individual rights and liberties. 'Even liberty itself, the greatest of all rights, is not unrestricted license to act
according to one's will.' It is subject to the far more overriding demands and requirements of the greater number." 47
"Expansive and extensive as its reach may be, police power is not a force without limits." 48 "It has to be exercised within bounds -
lawful ends through lawful means, i.e., that the interests of the public generally, as distinguished from that of a particular class,
require its exercise, and that the means employed are reasonably necessary for the accomplishment of the purpose while not
being unduly oppressive upon individuals."49
That the assailed governmental measure in this case is within the scope of police power cannot be disputed. Verily, the
statutes50 from which the said measure draws authority and the constitutional provisions51 which serve as its framework are
primarily concerned with the environment and health, safety, and well-being of the people, the promotion and securing of which
are clearly legitimate objectives of governmental efforts and regulations. The motivating factor in the issuance of Proclamation
No. 475 is without a doubt the interest of the public in general. The only question now is whether the means employed are
reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.
The pressing need to implement urgent measures to rehabilitate Boracay is beyond cavil from the factual milieu that precipitated
the President's issuance of Proclamation No. 475. This necessity is even made more critical and insistent by what the Court said
in Oposa v. Hon. Factoran, Jr. 52 in regard the rights to a balanced and healthful ecology and to health, which rights are likewise
integral concerns in this case. Oposa warned that unless the rights to a balanced and healthful ecology and to health are given
continuing importance and the State assumes its solemn obligation to preserve and protect them, the time will come that nothing
will be left not only for this generation but for the generations to come as well. 53 It further taught that the right to a balanced and
healthful ecology carries with it the correlative duty to refrain from impairing the environment. 54
Against the foregoing backdrop, we now pose this question: Was the temporary closure of Boracay as a tourist destination for six
months reasonably necessary under the circumstances? The answer is in the affirmative.
As earlier noted, one of the root causes of the problems that beset Boracay was tourist influx. Tourist arrivals in the island were
clearly far more than Boracay could handle. As early as 2007, the DENR had already determined this as the major cause of the
catastrophic depletion of the island's biodiversity. 55 Also part of the equation is the lack of commitment to effectively enforce
pertinent environmental laws. Unfortunately, direct action on these matters has been so elusive that the situation reached a
critical level. Hence, by then, only bold and sweeping steps were required by the situation.
Certainly, the closure of Boracay, albeit temporarily, gave the island its much needed breather, and likewise afforded the
government the necessary leeway in its rehabilitation program. Note that apart from review, evaluation and amendment of
relevant policies, the bulk of the rehabilitation activities involved inspection, testing, demolition, relocation, and construction.
These works could not have easily been done with tourists present. The rehabilitation works in the first place were not simple,
superficial or mere cosmetic but rather quite complicated, major, and permanent in character as they were intended to serve as
long-term solutions to the problem. 56 Also, time is of the essence. Every precious moment lost is to the detriment of Boracay's
environment and of the health and well-being of the people thereat. Hence, any unnecessary distraction or disruption is most
unwelcome. Moreover, as part of the rehabilitation efforts, operations of establishments in Boracay had to be halted in the course
thereof since majority, if not all of them, need to comply with environmental and regulatory requirements in order to align
themselves with the government's goal to restore Boracay into normalcy and develop its sustainability. Allowing tourists into the
island while it was undergoing necessary rehabilitation would therefore be pointless as no establishment would cater to their
accommodation and other needs. Besides, it could not be said that Boracay, at the time of the issuance of the questioned
proclamation, was in such a physical state that would meet its purpose of being a tourist destination. For one, its beach waters
could not be said to be totally safe for swimming. In any case, the closure, to emphasize, was only for a definite period of six
months, i.e., from April 26, 2018 to October 25, 2018. To the mind of the Court, this period constitutes a reasonable time frame, if
not to complete, but to at least put in place the necessary rehabilitation works to be done in the island. Indeed, the temporary
closure of Boracay, although unprecedented and radical as it may seem, was reasonably necessary and not unduly oppressive
under the circumstances. It was the most practical and realistic means of ensuring that rehabilitation works in the island are
started and carried out in the most efficacious and expeditious way. Absent a clear showing of grave abuse of discretion,
unreasonableness, arbitrariness or oppressiveness, the Court will not disturb the executive determination that the closure of
Boracay was necessitated by the foregoing circumstances. As earlier noted, petitioners totally failed to counter the factual bases
of, and justification for the challenged executive action.
Undoubtedly, Proclamation No. 475 is a valid police power measure. To repeat, police power constitutes an implied limitation to
the Bill of Rights, and that even liberty itself, the greatest of all rights, is subject to the far more overriding demands and
requirements of the greater number.
For the above reasons, petitioners' constitutional challenge on Proclamation No. 475 anchored on their perceived impairment of
the right to travel must fail.
Petitioners have no vested rights on
their sources of income as to be
entitled to due process
Petitioners argue that Proclamation No. 475 impinges on their constitutional right to due process since they were deprived of the
corollary right to work and earn a living by reason of the issuance thereof.
Concededly, "[a] profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot
be deprived of the right to work and the right to make a living because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an actionable wrong."57 Under this premise, petitioners claim that they
were deprived of due process when their right to work and earn a living was taken away from them when Boracay was ordered
closed as a tourist destination. It must be stressed, though, that "when the conditions so demand as determined by the legislature,
property rights must bow to the primacy of police power because property rights, though sheltered by due process, must yield to
general welfare."58 Otherwise, police power as an attribute to promote the common good would be diluted considerably if on the
mere plea of petitioners that they will suffer loss of earnings and capital, government measures implemented pursuant to the said
state power would be stymied or invalidated. 59
In any case, petitioners, particularly Zabal and Jacosalem, cannot be said to have already acquired vested rights to their sources of
income in Boracay. As heretofore mentioned, they are part of the informal sector of the economy where earnings are not
guaranteed. In Southern Luzon Drug Corporation v. Department of Social Welfare and Development, 60 the Court elucidated on
vested rights, as follows:
x x x Vested rights are 'fixed, unalterable, or irrevocable.' More extensively, they are depicted as follows:
Rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or
cancelled by the act of any other private person, and which it is right and equitable that the government should recognize and
protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could
not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established
methods of procedure and for the public welfare. x x x A right is not 'vested' unless it is more than a mere expectancy based on
the anticipated continuance of present laws; it must be an established interest in property, not open to doubt. x x x To be vested
in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be
divested without his consent. x x x61
Here, Zabal and J acosalem 's asserted right to whatever they may earn from tourist arrivals in Boracay is merely an inchoate
right or one that has not fully developed and therefore cannot be claimed as one's own. An inchoate right is a mere expectation,
which may or may not come into fruition. "It is contingent as it only comes 'into existence on an event or condition which may not
happen or be performed until some other event may prevent their vesting.’’’’ 62 Clearly, said petitioners' earnings are contingent
in that, even assuming tourists are still allowed in the island, the will still earn nothing if no one avails of their services. Certainly,
they do not possess any vested right on their sources of income, and under this context, their claim of lack of due process
collapses. To stress, only rights which have completely and definitely accrued and settled are entitled protection under the due
process clause.
Besides, Proclamation No. 475 does not strip Zabal and Jacosalem of their right to work and earn a living. They are free to work
and practice their trade elsewhere. That they were not able to do so in Boracay, at least for the duration of its closure, is a
necessary consequence of the police power measure to close and rehabilitate the island.
Also clearly untenable is petitioners' claim that they were being made to suffer the consequences of the environmental
transgressions of others. It must be stressed that the temporary closure of Boracay as a tourist destination and the consequent
ban of tourists into the island were not meant to serve as penalty to violators of environmental laws. The temporary closure does
not erase the environmental violations committed; hence, the liabilities of the violators remain and only they alone shall suffer
the same. The temporary inconvenience that petitioners or other persons may have experienced or are experiencing is but the
consequence of the police measure intended to attain a much higher purpose, that is, to protect the environment, the health of the
people, and the general welfare. Indeed, any and all persons may be burdened by measures intended for the common good or to
serve some important governmental interest. 63
No intrusion into the autonomy of the
concerned LGUs
The alleged intrusion of the President into the autonomy of the LG Us concerned is likewise too trivial to merit this Court's
consideration. Contrary to petitioners' argument, RA 10121 recognizes and even puts a premium on the role of the LG Us in
disaster risk reduction and management as shown by the fact that a number of the legislative policies set out in the subject
statute recognize and aim to strengthen the powers decentralized to LGUs. 64 This role is echoed in the questioned proclamation.
The fact that other government agencies are involved in the rehabilitation works does not create the inference that the powers
and functions of the LGUs are being encroached upon. The respective roles of each government agency are particularly defined
and enumerated in Executive Order No. 5365 and all are in accordance with their respective mandates. Also, the situation in
Boracay can in no wise be characterized or labelled as a mere local issue as to leave its rehabilitation to local actors. Boracay is a
prime tourist destination which caters to both local and foreign tourists. Any issue thereat has corresponding effects, direct or
otherwise, at a national level. This, for one, reasonably takes the issues therein from a level that concerns only the local officials.
At any rate, notice must be taken of the fact that even if the concerned LGUs have long been fully aware of the problems afflicting
Boracay, they failed to effectively remedy it. Yet still, in recognition of their mandated roles and involvement in the rehabilitation
of Boracay, Proclamation No. 475 directed "[a]ll departments, agencies and offices, including government-owned or controlled
corporations and affected local government units x x x to implement and execute xx x the closure [of Boracay] and the appropriate
rehabilitation works, in accordance with pertinent operational plans and directives, including the Boracay Action Plan."
As a final note, the Court in Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, 66 called out the
concerned government agencies for their cavalier attitude towards solving environmental destruction despite hard evidence and
clear signs of climate crisis. It equated the failure to put environmental protection on a plane of high national priority to the then
lacking level of bureaucratic efficiency and commitment. Hence, the Court therein took it upon itself to put the heads of concerned
department-agencies and the bureaus and offices under them on continuing notice and to enjoin them to perform their mandates
and duties towards the clean-up and/or restoration of Manila Bay, through a "continuing mandamus." It likewise took the
occasion to state, viz.:
In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all concerned
executive departments and agencies to immediately act and discharge their respective official duties and obligations. Indeed,
time is of the essence; hence, there is a need to set timetables for the performance and completion of the tasks, some of them as
defined for them by law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground and as a historical landmark cannot be over-emphasized. It is not
yet too late in the day to restore the Manila Bay to its former splendor and bring back the plants and sea life that once thrived in
its blue waters. But the tasks ahead, daunting as they may be, could only be accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put their minds to these tasks and take responsibility. This means that the
State, through [the concerned department-agencies], has to take the lead in the preservation and protection of the Manila Bay.

The era of delays, procrastination, and ad hoc measures is over. [The concerned department-agencies] must transcend their
limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must
reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their
basic functions in cleaning up and rehabilitating the Manila Bay. x x x67

There is an obvious similarity in Metropolitan Manila Development Authority and in the present case in that both involve the
restoration of key areas in the country which were once glowing with radiance and vitality but are now in shambles due to
abuses and exploitation. What sets these two cases apart is that in the former, those mandated to act still needed to be enjoined in
order to act. In this case, the bold and urgent action demanded by the Court in Metropolitan Manila Development Authority is now
in the roll out. Still, the voice of cynicism, naysayers, and procrastinators heard during times of inaction can still be heard during
this time of full action - demonstrating a classic case of "damn if you do, damn if you don't". Thus, in order for the now staunch
commitment to save the environment not to fade, it behooves upon the courts to be extra cautious in invalidating government
measures meant towards addressing environmental degradation. Absent any clear showing of constitutional infirmity,
arbitrariness or grave abuse of discretion, these measures must be upheld and even lauded and promoted. After all, not much
time is left for us to remedy the present environmental situation. To borrow from Oposa, unless the State undertakes its solemn
obligation to preserve the rights to a balanced and healthful ecology and advance the health of the people, "the day would not be
too far when all else would be lost not only for the present generation, but also for those to come - generations which stand to
inherit nothing but parched earth incapable of sustaining life."68

All told, the Court sustains the constitutionality and validity of Proclamation No. 475.

WHEREFORE, the Petition for Prohibition and Mandamus is DISMISSED.

SO ORDERED.
-Oposa vs Factoran G.R. NO. 101083. 224 SCRA 792 July 30, 1993
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents
ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA
SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents
ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN,
GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA,
BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented
by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE
GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY
ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their
parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by
their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors,
represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed
OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and
ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR.
and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and
Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch
66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners
dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically,
it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of
Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of
Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional
Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors
duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network,
Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted
action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio
S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition
by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The
complaint2 was instituted as a taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's
virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said
resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn."4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty
million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of
flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are
also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial,
commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a
host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive
erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one
billion (1,000,000,000) cubic meters per annum — approximately the size of the entire island of Catanduanes, (d) the
endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of
cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g)
recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which
result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the
absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and
operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the
reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes
such as the phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of
unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of
the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging
purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour —
nighttime, Saturdays, Sundays and holidays included — the Philippines will be bereft of forest resources
after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued
trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are
already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands
will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their
successors — who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property
he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the
State —
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the
Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient
use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind — the natural law — and violative
of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory
and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss.7 In the said order, not only
was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question —
sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to
rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the
action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda
after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply
thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations
concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of
Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-
perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O.
No. 192, to safeguard the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License
Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same
does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected
by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the
respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous
allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its
capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the
theory that the question of whether logging should be permitted in the country is a political question which should be properly
addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to
file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due
process of law. Once issued, a TLA remains effective for a certain period of time — usually for twenty-five (25) years. During its
effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have
violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class
suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that
the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several,
but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative
enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under
Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being
but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a
little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of
their obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and
arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions
of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court
notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to
the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal
right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions
based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which, for the first
time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987
Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not
under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the
latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-
perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because
of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as
state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not
only for the present generation, but also for those to come — generations which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.
During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange
transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries
with it the correlative duty of not impairing the same and, therefore, sanctions may
be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the country's forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related
provisions of the Constitution concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for
the conservation, management, development and proper use of the country's environment and natural resources, specifically
forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain,
as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing
of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the
following statement of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the country's forest, mineral, land, off-shore
areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and the
use of the country's natural resources, not only for the present generation but for future generations as
well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,15 specifically in Section 1
thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the objective of making the exploration, development
and utilization of such natural resources equitably accessible to the different segments of the present as
well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality
of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it
makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special
attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As
its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said policy.
Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty
— under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 — to
protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise
to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion,
violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be
renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the
defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of
action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No
other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof
is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the
court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid
down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as
well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing,
however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the
executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a
right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the
Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, 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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this
Court, says:
The first part of the authority represents the traditional concept of judicial power, involving the settlement
of conflicting rights as conferred as law. The second part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the
discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid
for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the
 meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
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 revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the
Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first
place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If
he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound the Government to strictly respect the said
licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare.
He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a
property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court
held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview
of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or
property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And
it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities,
and do not vest in the latter a permanent or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an
executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause
cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature
and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing
the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs.
Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor
General,30 to wit:
Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental interference.
But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to
enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in
cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is
not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent
Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint
to implead as defendants the holders or grantees of the questioned timber license agreements.
No pronouncement as to costs.
-Republic vs. Rosemoor Mining 426 SCRA 517
G.R. No. 149927 March 30, 2004
REPUBLIC OF THE PHILIPPINES, Represented by the Department of Environment and Natural Resources (DENR)
Under then Minister ERNESTO R. MACEDA; and Former Government Officials CATALINO MACARAIG, FULGENCIO S.
FACTORAN, ANGEL C. ALCALA, BEN MALAYANG, ROBERTO PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN
JUAN, petitioners,
vs.
ROSEMOOR MINING AND DEVELOPMENT CORPORATION, PEDRO DEL CONCHA, and ALEJANDRO and RUFO DE
GUZMAN, respondents.
DECISION
PANGANIBAN, J.:
A mining license that contravenes a mandatory provision of the law under which it is granted is void. Being a mere privilege, a
license does not vest absolute rights in the holder. Thus, without offending the due process and the non-impairment clauses of
the Constitution, it can be revoked by the State in the public interest.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to nullify the May 29, 2001 Decision 2 and the
September 6, 2001 Resolution3 of the Court of Appeals (CA) in CA-GR SP No. 46878. The CA disposed as follows:
"WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED in toto."4
The questioned Resolution denied petitioners’ Motion for Reconsideration.
On the other hand, trial court’s Decision, which was affirmed by the CA, had disposed as follows:
"WHEREFORE, judgment is hereby rendered as follows:
‘1. Declaring that the cancellation of License No. 33 was done without jurisdiction and in gross violation of the
Constitutional right of the petitioners against deprivation of their property rights without due process of law and is
hereby set aside.
‘2. Declaring that the petitioners’ right to continue the exploitation of the marble deposits in the area covered by
License No. 33 is maintained for the duration of the period of its life of twenty-five (25) years, less three (3) years of
continuous operation before License No. 33 was cancelled, unless sooner terminated for violation of any of the
conditions specified therein, with due process.
‘3. Making the Writ of preliminary injunction and the Writ of Preliminary Mandatory Injunction issued as permanent.
‘4. Ordering the cancellation of the bond filed by the Petitioners in the sum of 1 Million.
‘5. Allowing the petitioners to present evidence in support of the damages they claim to have suffered from, as a
consequence of the summary cancellation of License No. 33 pursuant to the agreement of the parties on such dates as
maybe set by the Court; and
‘6. Denying for lack of merit the motions for contempt, it appearing that actuations of the respondents were not
contumacious and intended to delay the proceedings or undermine the integrity of the Court.
‘No pronouncement yet as to costs.’"5
The Facts
The CA narrated the facts as follows:
"The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr. Pedro De la Concha, Alejandro De La Concha, and Rufo De Guzman,
after having been granted permission to prospect for marble deposits in the mountains of Biak-na-Bato, San Miguel, Bulacan,
succeeded in discovering marble deposits of high quality and in commercial quantities in Mount Mabio which forms part of the
Biak-na-Bato mountain range.
"Having succeeded in discovering said marble deposits, and as a result of their tedious efforts and substantial expenses, the
petitioners applied with the Bureau of Mines, now Mines and Geosciences Bureau, for the issuance of the corresponding license to
exploit said marble deposits.
xxxxxxxxx
"After compliance with numerous required conditions, License No. 33 was issued by the Bureau of Mines in favor of the herein
petitioners.
xxxxxxxxx
"Shortly after Respondent Ernesto R. Maceda was appointed Minister of the Department of Energy and Natural Resources
(DENR), petitioners’ License No. 33 was cancelled by him through his letter to ROSEMOOR MINING AND DEVELOPMENT
CORPORATION dated September 6, 1986 for the reasons stated therein. Because of the aforesaid cancellation, the original
petition was filed and later substituted by the petitioners’ AMENDED PETITION dated August 21, 1991 to assail the same.
"Also after due hearing, the prayer for injunctive relief was granted in the Order of this Court dated February 28, 1992.
Accordingly, the corresponding preliminary writs were issued after the petitioners filed their injunction bond in the amount of
ONE MILLION PESOS (₱1,000,000.00).
xxxxxxxxx
"On September 27, 1996, the trial court rendered the herein questioned decision." 6
The trial court ruled that the privilege granted under respondents’ license had already ripened into a property right, which was
protected under the due process clause of the Constitution. Such right was supposedly violated when the license was cancelled
without notice and hearing. The cancellation was said to be unjustified, because the area that could be covered by the four
separate applications of respondents was 400 hectares. Finally, according to the RTC, Proclamation No. 84, which confirmed the
cancellation of the license, was an ex post facto law; as such, it violated Section 3 of Article XVIII of the 1987 Constitution.
On appeal to the Court of Appeals, herein petitioners asked whether PD 463 or the Mineral Resources Development Decree of
1974 had been violated by the award of the 330.3062 hectares to respondents in accordance with Proclamation No. 2204. They
also questioned the validity of the cancellation of respondents’ Quarry License/Permit (QLP) No. 33.
Ruling of the Court of Appeals
Sustaining the trial court in toto, the CA held that the grant of the quarry license covering 330.3062 hectares to respondents was
authorized by law, because the license was embraced by four (4) separate applications -- each for an area of 81 hectares.
Moreover, it held that the limitation under Presidential Decree No. 463 -- that a quarry license should cover not more than 100
hectares in any given province -- was supplanted by Republic Act No. 7942,7 which increased the mining areas allowed under PD
463.
It also ruled that the cancellation of respondents’ license without notice and hearing was tantamount to a deprivation of property
without due process of law. It added that under the clause in the Constitution dealing with the non-impairment of obligations and
contracts, respondents’ license must be respected by the State.
Hence, this Petition.8
Issues
Petitioners submit the following issues for the Court’s consideration:
"(1) [W]hether or not QLP No. 33 was issued in blatant contravention of Section 69, P.D. No. 463; and (2) whether or not
Proclamation No. 84 issued by then President Corazon Aquino is valid. The corollary issue is whether or not the Constitutional
prohibition against ex post facto law applies to Proclamation No. 84" 9
The Court’s Ruling
The Petition has merit.
First Issue:
Validity of License
Respondents contend that the Petition has no legal basis, because PD 463 has already been repealed. 10 In effect, they ask for the
dismissal of the Petition on the ground of mootness.
PD 463, as amended, pertained to the old system of exploration, development and utilization of natural resources through
licenses, concessions or leases.11 While these arrangements were provided under the 193512 and the 197313 Constitutions, they
have been omitted by Section 2 of Article XII of the 1987 Constitution.14
With the shift of constitutional policy toward "full control and supervision of the State" over natural resources, the Court in
Miners Association of the Philippines v. Factoran Jr. 15 declared the provisions of PD 463 as contrary to or violative of the express
mandate of the 1987 Constitution. The said provisions dealt with the lease of mining claims; quarry permits or licenses covering
privately owned or public lands; and other related provisions on lease, licenses and permits.
RA 7942 or the Philippine Mining Act of 1995 embodies the new constitutional mandate. It has repealed or amended all laws,
executive orders, presidential decrees, rules and regulations -- or parts thereof -- that are inconsistent with any of its
provisions.16
It is relevant to state, however, that Section 2 of Article XII of the 1987 Constitution does not apply retroactively to a "license,
concession or lease" granted by the government under the 1973 Constitution or before the effectivity of the 1987 Constitution on
February 2, 1987.17 As noted in Miners Association of the Philippines v. Factoran Jr., the deliberations of the Constitutional
Commission18 emphasized the intent to apply the said constitutional provision prospectively.
While RA 7942 has expressly repealed provisions of mining laws that are inconsistent with its own, it nonetheless respects
previously issued valid and existing licenses, as follows:
"SECTION 5. Mineral Reservations. — When the national interest so requires, such as when there is a need to preserve
strategic raw materials for industries critical to national development, or certain minerals for scientific, cultural or
ecological value, the President may establish mineral reservations upon the recommendation of the Director through
the Secretary. Mining operations in existing mineral reservations and such other reservations as may thereafter be
established, shall be undertaken by the Department or through a contractor: Provided, That a small scale-mining
cooperative covered by Republic Act No. 7076 shall be given preferential right to apply for a small-scale mining
agreement for a maximum aggregate area of twenty-five percent (25%) of such mineral reservation, subject to valid
existing mining/quarrying rights as provided under Section 112 Chapter XX hereof. All submerged lands within the
contiguous zone and in the exclusive economic zone of the Philippines are hereby declared to be mineral reservations.
"x x x x x x x x x
"SECTION 7. Periodic Review of Existing Mineral Reservations. — The Secretary shall periodically review existing
mineral reservations for the purpose of determining whether their continued existence is consistent with the national
interest, and upon his recommendation, the President may, by proclamation, alter or modify the boundaries thereof or
revert the same to the public domain without prejudice to prior existing rights."
"SECTION 18. Areas Open to Mining Operations. — Subject to any existing rights or reservations and prior agreements
of all parties, all mineral resources in public or private lands, including timber or forestlands as defined in existing
laws, shall be open to mineral agreements or financial or technical assistance agreement applications. Any conflict that
may arise under this provision shall be heard and resolved by the panel of arbitrators."
"SECTION 19. Areas Closed to Mining Applications. -- Mineral agreement or financial or technical assistance
agreement applications shall not be allowed:
(a) In military and other government reservations, except upon prior written clearance by the government
agency concerned;
(b) Near or under public or private buildings, cemeteries, archeological and historic sites, bridges,
highways, waterways, railroads, reservoirs, dams or other infrastructure projects, public or private works
including plantations or valuable crops, except upon written consent of the government agency or private
entity concerned;
(c) In areas covered by valid and existing mining rights;
(d) In areas expressly prohibited by law;
(e) In areas covered by small-scale miners as defined by law unless with prior consent of the small-scale
miners, in which case a royalty payment upon the utilization of minerals shall be agreed upon by the
parties, said royalty forming a trust fund for the socioeconomic development of the community concerned;
and
(f) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests,
mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird
sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected
Areas System (NIPAS) under Republic Act No. 7586, Department Administrative Order No. 25, series of
1992 and other laws."
"SECTION 112. Non-impairment of Existing Mining/ Quarrying Rights. — All valid and existing mining lease contracts,
permits/licenses, leases pending renewal, mineral production-sharing agreements granted under Executive Order No.
279, at the date of effectivity of this Act, shall remain valid, shall not be impaired, and shall be recognized by the
Government: Provided, That the provisions of Chapter XIV on government share in mineral production-sharing
agreement and of Chapter XVI on incentives of this Act shall immediately govern and apply to a mining lessee or
contractor unless the mining lessee or contractor indicates his intention to the secretary, in writing, not to avail of said
 provisions: Provided, further, That no renewal of mining lease contracts shall be made after the expiration of its term:
Provided, finally, That such leases, production-sharing agreements, financial or technical assistance agreements shall
comply with the applicable provisions of this Act and its implementing rules and regulations.
"SECTION 113. Recognition of Valid and Existing Mining Claims and Lease/Quarry Application. — Holders of valid and
existing mining claims, lease/quarry applications shall be given preferential rights to enter into any mode of mineral
agreement with the government within two (2) years from the promulgation of the rules and regulations
implementing this Act." (Underscoring supplied)
Section 3(p) of RA 7942 defines an existing mining/quarrying right as "a valid and subsisting mining claim or permit or quarry
permit or any mining lease contract or agreement covering a mineralized area granted/issued under pertinent mining laws."
Consequently, determining whether the license of respondents falls under this definition would be relevant to fixing their
entitlement to the rights and/or preferences under RA 7942. Hence, the present Petition has not been mooted.
Petitioners submit that the license clearly contravenes Section 69 of PD 463, because it exceeds the maximum area that may be
granted. This incipient violation, according to them, renders the license void ab initio.
Respondents, on the other hand, argue that the license was validly granted, because it was covered by four separate applications
for areas of 81 hectares each.
The license in question, QLP No. 33,19 is dated August 3, 1982, and it was issued in the name of Rosemoor Mining Development
Corporation. The terms of the license allowed the corporation to extract and dispose of marbleized limestone from a 330.3062-
hectare land in San Miguel, Bulacan. The license is, however, subject to the terms and conditions of PD 463, the governing law at
the time it was granted; as well as to the rules and regulations promulgated thereunder.20 By the same token, Proclamation No.
2204 -- which awarded to Rosemoor the right of development, exploitation, and utilization of the mineral site -- expressly
cautioned that the grant was subject to "existing policies, laws, rules and regulations."21
The license was thus subject to Section 69 of PD 463, which reads:
"Section 69. Maximum Area of Quarry License – Notwithstanding the provisions of Section 14 hereof, a quarry license
shall cover an area of not more than one hundred (100) hectares in any one province and not more than one thousand
(1,000) hectares in the entire Philippines." (Italics supplied)
The language of PD 463 is clear. It states in categorical and mandatory terms that a quarry license, like that of respondents,
should cover a maximum of 100 hectares in any given province. This law neither provides any exception nor makes any reference
to the number of applications for a license. Section 69 of PD 463 must be taken to mean exactly what it says. Where the law is
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. 22
Moreover, the lower courts’ ruling is evidently inconsistent with the fact that QLP No. 33 was issued solely in the name of
Rosemoor Mining and Development Corporation, rather than in the names of the four individual stockholders who are
respondents herein. It likewise brushes aside a basic postulate that a corporation has a separate personality from that of its
stockholders.23
The interpretation adopted by the lower courts is contrary to the purpose of Section 69 of PD 463. Such intent to limit, without
qualification, the area of a quarry license strictly to 100 hectares in any one province is shown by the opening proviso that reads:
"Notwithstanding the provisions of Section 14 hereof x x x." The mandatory nature of the provision is also underscored by the use
of the word shall. Hence, in the application of the 100-hectare-per-province limit, no regard is given to the size or the number of
mining claims under Section 14, which we quote:
"SECTION 14. Size of Mining Claim. -- For purposes of registration of a mining claim under this Decree, the Philippine
territory and its shelf are hereby divided into meridional blocks or quadrangles of one-half minute (1/2) of latitude
and longitude, each block or quadrangle containing area of eighty-one (81) hectares, more or less.
"A mining claim shall cover one such block although a lesser area may be allowed if warranted by attendant
circumstances, such as geographical and other justifiable considerations as may be determined by the Director:
Provided, That in no case shall the locator be allowed to register twice the area allowed for lease under Section 43
hereof." (Italics supplied)
Clearly, the intent of the law would be brazenly circumvented by ruling that a license may cover an area exceeding the maximum
by the mere expediency of filing several applications. Such ruling would indirectly permit an act that is directly prohibited by the
law.
Second Issue:
Validity of Proclamation No. 84
Petitioners also argue that the license was validly declared a nullity and consequently withdrawn or terminated. In a letter dated
September 15, 1986, respondents were informed by then Minister Ernesto M. Maceda that their license had illegally been issued,
because it violated Section 69 of PD 463; and that there was no more public interest served by the continued existence or renewal
of the license. The latter reason, they added, was confirmed by the language of Proclamation No. 84. According to this law, public
interest would be served by reverting the parcel of land that was excluded by Proclamation No. 2204 to the former status of that
land as part of the Biak-na-Bato national park.
They also contend that Section 74 of PD 463 would not apply, because Minister Maceda’s letter did not cancel or revoke QLP No.
33, but merely declared the latter’s nullity. They further argue that respondents waived notice and hearing in their application for
the license.
On the other hand, respondents submit that, as provided for in Section 74 of PD 463, their right to due process was violated when
their license was cancelled without notice and hearing. They likewise contend that Proclamation No. 84 is not valid for the
following reasons: 1) it violates the clause on the non-impairment of contracts; 2) it is an ex post facto law and/or a bill of
attainder; and 3) it was issued by the President after the effectivity of the 1987 Constitution.
This Court ruled on the nature of a natural resource exploration permit, which was akin to the present respondents’ license,
in Southeast Mindanao Gold Mining Corporation v. Balite Portal Mining Cooperative,24 which held:
"x x x. As correctly held by the Court of Appeals in its challenged decision, EP No. 133 merely evidences a privilege
granted by the State, which may be amended, modified or rescinded when the national interest so requires. This is
necessarily so since the exploration, development and utilization of the country’s natural mineral resources are
matters impressed with great public interest. Like timber permits, mining exploration permits do not vest in the
grantee any permanent or irrevocable right within the purview of the non-impairment of contract and due process
clauses of the Constitution, since the State, under its all-encompassing police power, may alter, modify or amend the
same, in accordance with the demands of the general welfare."25
This same ruling had been made earlier in Tan v. Director of Forestry26 with regard to a timber license, a pronouncement that
was reiterated in Ysmael v. Deputy Executive Secretary,27 the pertinent portion of which reads:
"x x x. Timber licenses, permits and license agreements are the principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid
that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree
No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]."28 (Italics
supplied)
In line with the foregoing jurisprudence, respondents’ license may be revoked or rescinded by executive action when the national
interest so requires, because it is not a contract, property or a property right protected by the due process clause of the
Constitution.29 Respondents themselves acknowledge this condition of the grant under paragraph 7 of QLP No. 33, which we
quote:
 "7. This permit/license may be revoked or cancelled at any time by the Director of Mines and Geo-Sciences when, in
his opinion public interests so require or, upon failure of the permittee/licensee to comply with the provisions of
Presidential Decree No. 463, as amended, and the rules and regulations promulgated thereunder, as well as with the
terms and conditions specified herein; Provided, That if a permit/license is cancelled, or otherwise terminated, the
permittee/licensee shall be liable for all unpaid rentals and royalties due up to the time of the termination or
cancellation of the permit/license[.]"30 (Italics supplied)

The determination of what is in the public interest is necessarily vested in the State as owner of all mineral resources. That
determination was based on policy considerations formally enunciated in the letter dated September 15, 1986, issued by then
Minister Maceda and, subsequently, by the President through Proclamation No. 84. As to the exercise of prerogative by Maceda,
suffice it to say that while the cancellation or revocation of the license is vested in the director of mines and geo-sciences, the
latter is subject to the former’s control as the department head. We also stress the clear prerogative of the Executive Department
in the evaluation and the consequent cancellation of licenses in the process of its formulation of policies with regard to their
utilization. Courts will not interfere with the exercise of that discretion without any clear showing of grave abuse of discretion.31

Moreover, granting that respondents’ license is valid, it can still be validly revoked by the State in the exercise of police
power.32 The exercise of such power through Proclamation No. 84 is clearly in accord with jura regalia, which reserves to the
State ownership of all natural resources.33 This Regalian doctrine is an exercise of its sovereign power as owner of lands of the
public domain and of the patrimony of the nation, the mineral deposits of which are a valuable asset. 34

Proclamation No. 84 cannot be stigmatized as a violation of the non-impairment clause. As pointed out earlier, respondents’
license is not a contract to which the protection accorded by the non-impairment clause may extend.35 Even if the license were, it
is settled that provisions of existing laws and a reservation of police power are deemed read into it, because it concerns a subject
impressed with public welfare.36 As it is, the non-impairment clause must yield to the police power of the state.37

We cannot sustain the argument that Proclamation No. 84 is a bill of attainder; that is, a "legislative act which inflicts punishment
without judicial trial."38 Its declaration that QLP No. 33 is a patent nullity39 is certainly not a declaration of guilt. Neither is the
cancellation of the license a punishment within the purview of the constitutional proscription against bills of attainder.

Too, there is no merit in the argument that the proclamation is an ex post facto law. There are six recognized instances when a
law is considered as such: 1) it criminalizes and punishes an action that was done before the passing of the law and that was
innocent when it was done; 2) it aggravates a crime or makes it greater than it was when it was committed; 3) it changes the
punishment and inflicts one that is greater than that imposed by the law annexed to the crime when it was committed; 4) it alters
the legal rules of evidence and authorizes conviction upon a less or different testimony than that required by the law at the time
of the commission of the offense; 5) it assumes the regulation of civil rights and remedies only, but in effect imposes a penalty or
a deprivation of a right as a consequence of something that was considered lawful when it was done; and 6) it deprives a person
accused of a crime of some lawful protection to which he or she become entitled, such as the protection of a former conviction or
an acquittal or the proclamation of an amnesty.40 Proclamation No. 84 does not fall under any of the enumerated categories;
hence, it is not an ex post facto law.

It is settled that an ex post facto law is limited in its scope only to matters criminal in nature.41 Proclamation 84, which merely
restored the area excluded from the Biak-na-Bato national park by canceling respondents’ license, is clearly not penal in
character.

Finally, it is stressed that at the time President Aquino issued Proclamation No. 84 on March 9, 1987, she was still validly
exercising legislative powers under the Provisional Constitution of 1986.42 Section 1 of Article II of Proclamation No. 3, which
promulgated the Provisional Constitution, granted her legislative power "until a legislature is elected and convened under a new
Constitution." The grant of such power is also explicitly recognized and provided for in Section 6 of Article XVII of the 1987
Constitution.43

WHEREFORE, this Petition is hereby GRANTED and the appealed Decision of the Court of Appeals SET ASIDE. No costs.

SO ORDERED.