GIL MIGUEL, Petitioner, v.
THE DIRECTOR OF THE
BUREAU OF PRISONS, Respondent.
DECISION
HERNANDO, J.:
This is a Petition for the Issuance of the Writ of
Habeas Corpus1 filed by petitioner Gil Miguel
(Miguel), praying for the Court to order the
Director of the Bureau of Prisons (now Director
General of the Bureau of Corrections) to bring
petitioner before this Court, and after due
proceedings, to restore his liberty.
The Factual Antecedents:
On February 26, 1991, Miguel was charged 2 with
the crime of Murder before the Regional Trial Court
(RTC) of Quezon City, docketed as Criminal Case
No. Q-91-18506. After trial, Miguel was found
guilty as charged and sentenced to suffer the
penalty of reclusion perpetua. Pursuant to his
conviction, Miguel was delivered to the National
Bilibid Prison in Muntinlupa City on January 15,
1994.3 Miguel's conviction was affirmed by this
Court in a Decision4 dated March 7, 1996.
Alleging that his continued detention no longer
holds legal basis in view of Republic Act No. (RA)
10592,5 otherwise known as the "Good Conduct
Time Allowance Law" (GCTA Law), Miguel filed the
present petition for the issuance of the Writ
of Habeas Corpus on August 19, 2015.
The respondent Director General of the Bureau of
Corrections, through the Office of the Solicitor
General (OSG), filed his Comment6 dated January
28, 2016.
In response, Miguel filed his Reply7 dated May 11,
2018.
In a Resolution8 dated September 30, 2020, this
Court required the parties to file their respective
Memoranda. In compliance with the said
Resolution, respondent filed their
9 Court, or any member thereof, on any day and at
Memorandum dated February 9, 2021. Miguel
failed to file his Memorandum.
Issue
The sole issue for the resolution of the Court is
whether the Writ of Habeas Corpus may be issued.
Our Ruling
The petition is not meritorious.
Preliminarily, we wish to point out that Miguel
failed to observe the principle of hierarchy of
courts.
In Cruz v. Gingoyon,10 the Court aptly explained the
principle, thus:chanroblesvirtualawlibrary
We also find the necessity to emphasize strict
observance of the hierarchy of courts. "A becoming
regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of
extraordinary writs against first level ('inferior')
courts should be filed with the [RTC], and those
against the latter, with the Court of Appeals (CA). A
direct invocation of the Supreme Court's original
jurisdiction to issue extraordinary writs should be
allowed only when there are special and important
reasons therefor, clearly and specifically set out in
the petition." For the guidance of the petitioner,
"[t]his Court's original jurisdiction to issue writs of
certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not
exclusive." Its jurisdiction is concurrent with the
CA, and with the RTC in proper cases. "However,
this concurrence of jurisdiction does not grant
upon a party seeking any of the extraordinary writs
the absolute freedom to file his petition with the
court of his choice. This Court is a court of last
resort, and must so remain if it is to satisfactorily
perform the functions assigned to it by the
Constitution and immemorial tradition."
Unwarranted demands upon this Court's attention
must be prevented to allow time and devotion for
pressing matters within its exclusive
11
jurisdiction. (Emphasis supplied)
As to which court may grant the writ, Section 2,
Rule 102 of the Rules of Court
provides:chanroblesvirtualawlibrary
Section 2. Who may grant the writ. - The writ
of habeas corpus may be granted by the Supreme
any time, or by the Court of Appeals or any
member thereof in the instances authorized by
law, and if so granted it shall be enforceable
anywhere in the Philippines, and may be made
returnable before the court or any member heinous crimes are excluded from the coverage of
thereof, or before a Court of First Instance, or any this Act. In case the maximum penalty to which the
judge thereof for hearing and decision on the accused may be sentenced is destierro, he shall be
merits. It may also be granted by a Court of First released after thirty (30) days of preventive
Instance, or a judge thereof, on any day and at any imprisonment. (Emphasis supplied)
time, and returnable before himself, enforceable This disqualification is further echoed in several
only within his judicial district. provisions of the 2019 Revised Implementing Rules
From the foregoing, it is clear that the trial court, and Regulations of RA 10592 (2019 Revised IRR)
the appellate court, and this Court exercise which read:chanroblesvirtualawlibrary
concurrent jurisdiction over petitions for the Rule III, Section 3.Who are Disqualified. The
issuance of the writ of habeas corpus. However, following shall not be entitled to any credit for
this does not mean that parties are absolutely free preventive imprisonment:
to choose before which court to file their petitions,
thus:chanroblesvirtualawlibrary a. Recidivists;
[M]ere concurrency of jurisdiction does not afford b. An accused who has been convicted previously
parties absolute freedom to choose the court with twice or more times of any crime;
which the petition shall be filed. Petitioners should c. An accused who, upon being summoned for the
be directed by the hierarchy of courts. After all, the execution of his sentence has failed to surrender
hierarchy of courts 'serves as a general voluntarily before a court of law;
determinant of the appropriate forum for d. Habitual Delinquents;
petitioners for the extraordinary writs.'12 e. Escapees; and
In sum, Miguel should have filed the present f. PDL charged of Heinous Crimes. (Emphasis
petition before the RTC, absent any showing of supplied)
special and important reasons warranting a direct
resort to this Court. Rule IV, Section 1. GCTA During Preventive
Imprisonment. - The good conduct of a detained
Procedural considerations aside, the Court still PDL qualified for credit for preventive
finds the petition wanting in merit. imprisonment shall entitle him to the deductions
described in Section 3 hereunder, as GCTA, from
Miguel's argument is two-fold: first, he anchors his the possible maximum penalty.
claim on the assertion that applying the GCTA Law,
he has served a total of "thirty-eight (38) years, ten The following shall not be entitled to any GCTA
(10) months, and one (1) day"13 already. Second, during preventive imprisonment:
he posits that Article 70 of the Revised Penal Code
(RPC) caps the duration of the penalty of reclusion a. Recidivists;
perpetua at thirty (30) years.14 Having served a b. An accused who has been convicted previously
total of thirty�eight (38) years, which is eight (8) twice or more times of any crime;
years more than the supposed maximum duration c. An accused who, upon being summoned for the
of reclusion perpetua, Miguel concludes that he execution of his sentence has failed to surrender
has fully served his sentence and his detention no voluntarily before a court of law;
longer holds legal basis. d. Habitual Delinquents;
e. Escapees; and
Miguel's contention is wrong. f. PDL charged of Heinous Crimes. (Emphasis
supplied)
On the first point, Miguel assumes that he is
entitled to the benefits of the GCTA Law. However, Rule IV, Section 2. GCTA During Service of Sentence.
a plain reading of the law would reveal otherwise. - The good conduct of a PDL convicted by final
judgment in any penal institution, rehabilitation or
The last paragraph of Section 1 of the GCTA Law detention center or any local jail shall entitle him to
reads:chanroblesvirtualawlibrary the deductions described in Section 3 hereunder,
Provided, finally, That recidivists, habitual as GCTA, from the period of his sentence, pursuant
delinquents, escapees and persons charged with to Section 3 of RA No. 10592.
The following shall not be entitled to any GCTA The 2019 Revised IRR defines "heinous crimes" as
during service of sentence: follows:chanroblesvirtualawlibrary
"Heinous Crimes" - crimes which are grievous,
a. Recidivists; odious and hateful to the senses and which, by
b. Habitual Delinquents; reason of their inherent and or manifest
c. Escapees; and wickedness, viciousness, atrocity and perversity
d. PDL convicted of Heinous Crimes. (Emphasis are repugnant and outrageous to the common
supplied) standards and norms of decency and morality in a
just, civilized and ordered society, including crimes
Rule V, Section 2. Who are disqualified. - The which are mandatorily punishable by Death under
following shall not be entitled to TASTM (Time the provisions of RA No. 7659, as amended,
Allowance for Study, Teaching and Mentoring): otherwise known as the Death Penalty Law, and
those crimes specifically declared as such by the
a. Recidivists; Supreme Court[.]
b. Habitual delinquents;
c. Escapees; and While the definition did not expressly enumerate
d. PDL charged and convicted of heinous crimes which are considered heinous, it made
crimes. (Emphasis supplied) reference to "crimes which are mandatorily
punishable by Death under the provisions of RA
Rule VI, Section 2. Who are disqualified. - The 7659, as amended x x x."
following are not qualified to be released under
this Rule: Section 6 of RA 7659,15 otherwise known as the
Death Penalty Law,
a. Recidivists; states:chanroblesvirtualawlibrary
b. An accused who has been convicted previously Section 6. Article 248 of the same Code is hereby
twice or more times of any crime; amended to read as
c. An accused who, upon being summoned for the follows:chanroblesvirtualawlibrary
execution of his sentence has failed to surrender Art. 248. Murder. - Any person who, not falling
voluntarily before a court of law; within the provisions of Article 246 shall kill
d. Habitual Delinquents; another, shall be guilty of murder and shall be
e. Escapees; and punished by reclusion perpetua, to death if
f. PDL charged of Heinous Crimes. (Emphasis committed with any of the following attendant
supplied) circumstances:
�
Rule VII, Section 2. Who are disqualified. - The 1. With treachery, taking advantage of superior
following shall not be entitled to STAL (Special Time strength, with the aid of armed men, or employing
Allowance for Loyalty): means to weaken the defense or of means or
persons to insure or afford impunity.
a. Recidivists;
b. Habitual Delinquents; 2. In consideration of a price, reward or promise.
c. Escapees; and
d. PDL charged or convicted of Heinous 3. By means of inundation, fire, poison, explosion,
Crimes. (Emphasis supplied) shipwreck, stranding of a vessel, deraihnent or
The GCTA Law and the 2019 Revised IRR have made assault upon a railroad, fall of an airship, or by
it abundantly clear that persons charged with means of motor vehicles, or with the use of any
and/or convicted of heinous crimes are not entitled other means involving great waste and ruin.
to the benefits under the law. Thus, this begs the
question: which crimes are considered heinous? 4. On occasion of any of the calamities enumerated
More specifically, is murder considered a heinous in the preceding paragraph, or of an earthquake,
crime for purposes of the application of the GCTA eruption of a volcano, destructive cyclone,
Law? epidemic or other public calamity.

5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse."
From the discussion above, it is evident that the
crime of Murder is one that is mandatorily
punishable by death, in accordance with the Death
Penalty Law. Being a such, it falls within the
definition of "heinous crimes" in the 2019 Revised
IRR and is therefore considered as a heinous crime.
In sum, Murder is considered a heinous crime in so
far as the GCTA Law is concerned, and persons
charged with and/or convicted of such are
disqualified from availing of the benefits of the law.
On this point alone, the petition should already fail.
However, Miguel further argues that Article 70 of
the RPC caps the duration of the penalty
of reclusion perpetua at thirty (30) years only. He is
referring to the last paragraph of said provision,
which states:chanroblesvirtualawlibrary
In applying the provisions of this rule the duration
of perpetual penalties (pena perpetua) shall be
computed at thirty years. (As amended by Com. Act
No. 217.)
Miguel is again mistaken.
Plainly, nowhere in the cited provision does it state
that perpetual penalties, such as reclusion
perpetua, are capped at thirty (30) years. Instead,
what it only provides is that in applying the rules
laid out in Article 70, such as the three-fold rule,
the duration of perpetual penalties shall be
computed at thirty (30) years,
thus:chanroblesvirtualawlibrary
In the case of People v. Mendoza, G.R. L-3271, May
5, 1950, it was held that the accused were guilty of
murders and that each of them must be sentenced
to suffer reclusion perpetua for each of the five
murders, although the duration of the aggregate
penalties shall not exceed 40 years. In this case,
after serving one reclusion perpetua, which is
computed at 30 years, the accused will serve 10
years more. All the other penalties will not be
served.16 (Emphasis supplied)
In People v. Reyes,17 Article 70 is further
explained:chanroblesvirtualawlibrary
The other applicable reference to reclusion
perpetua is found in Article 70 of the Code which,
in laying down the rule on successive service of
sentences where the culprit has to serve more than
three penalties, provides, that 'the maximum
duration of the convict's sentence shall not be
more than three�fold the length of time
corresponding to the most severe of the penalties
imposed upon him,' and '(i)n applying the
provisions of this rule the duration of perpetual
penalties (pena perpetual) shall be computed at
thirty years.'
The imputed duration of thirty (30) years
for reclusion perpetua, therefore, is only to serve
as the basis for determining the convict's eligibility
for pardon or for the application of the three-fold
rule in the service of multiple penalties x x
x.18 (Emphasis supplied)
Miguel's position is further negated by the
pronouncement in People v. Baguio,19 where the
Court similarly held that "[r]eclusion
perpetua entails imprisonment for at least thirty
(30) years, after which the convict becomes eligible
for pardon x x x."20
Guided by the foregoing jurisprudence, it is evident
that the penalty of reclusion perpetua requires
imprisonment of at least thirty (30) years, after
which the convict becomes only eligible for pardon,
and not for release. This is in stark contrast to
Miguel's claim that a convict meted with the
penalty of reclusion perpetua must serve only
thirty (30) years.
To recap, Miguel was delivered to the National
Bilibid Prison on January 15, 1994. Therefore, as of
August 15, 2021, he has only served a total of
twenty-seven (27) years and seven (7) months of
his sentence. Hence, having been punished to
suffer the penalty of reclusion perpetua, Miguel's
continued detention is valid and justified. He has
utterly failed to show that he is illegally confined or
deprived of his liberty.
Accordingly, the Writ of Habeas Corpus may not be
issued and the discharge of Miguel from
imprisonment should not be authorized.
WHEREFORE, the Petition is
hereby DISMISSED.chanroblesvirtualawlibrary
SO ORDERED.
G.R. No. 210412
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
KAMRAN F. KARBASI, Respondent.
DECISION
MENDOZA, J.:
The Contracting States shall as far as possible
facilitate the assimilation and naturalization of
refugees. They shall in particular make every effort
to expedite naturalization proceedings and to
reduce as far as possible the charges and costs of
such proceedings. 1
This is a petition for review on certiorari under Rule
45 of the Rules of Court assailing the January 29,
2013 Decision2 and the November 27,
3
2013 Resolution of the Court of Appeals (CA), in
CA-G.R. CV No. 01126-MIN, which affirmed the
January 17, 2007 Order of the Regional Trial Court,
Branch 10, Dipolog City (RTC), in a naturalization
case docketed as Naturalization Case No. 2866. The
RTC order granted the petition for naturalization
and, thus, admitted Karman F. Karbasi as a citizen
of the Philippines.
The Facts
On June 25, 2002, Kamran F. Karbasi (Karbasi) filed
a petition for naturalization with the RTC, where he
alleged the following:
1. His full name is Kamran F. Karbasi;
2. He is recognized as a Person of Concern by the
United Nations High Commissioner for
Refugees (UNHCR) as shown in a certification duly
issued by the UNHCR;
3. He is presently residing with his family at 341
Burgos Street, Dipolog City, since early part of June
2000 and more so has resided continuously in the
Philippines for not less than 11 years immediately
preceding the date of this petition; to wit, since 11
July 1990 and in Dipolog City for more than one (1)
year;
4. His last place of foreign residence was Pakistan
and his other places of residence, prior to his
present residence, were as follows (i) Panay Ave.,
Quezon City; (ii) Sta. Filomena, Dipolog City; (iii)
Capitol Area, Dumaguete City; (iv) Dohinob, Roxas,
Zamboanga del Norte;
5. He was born on 4 September 1966 in Tehran,
Iran, as shown in his identity card which also serves
as his birth certificate;
6. He is married and is the father of one (1) child;
7. His wife Cliji G. Lim Karbasi is a Filipino citizen, 22
years old and born on 10 August 1979 in Cebu City,
whom he married on 12 October 2000 in Dipolog
City, as shown in
their certificate of marriage;
8. His child, Keenyji L. Karbasi, 1-year old , was born
on 9 June 2001 in Dipolog City and presently
residing with him and his wife at 341 Burgos Street,
Dipolog City;
9. He arrived in Manila, Philippines, under an
assumed name (Syed Gul Agha) from Pakistan on
11 July 1990 specifically at the Manila International
Airport on board Philippine Airlines Flight No. 731,
per UNHCR certification containing reference to his
Pakistani passport issued under said assumed
name;
10. Due to his marriage, he is entitled to the benefit
of Section 3 of Commonwealth Act No. 473, which
reduced to five years the ten year requirement of
continuous residence;
11. He speaks and writes English and Visayan;
12. His trade or occupation is as a repair technician
in which he has been engaged since 1998 and, as
such, he derives an average annual income of Php
80,000.00 more or less;
13. He has all the qualifications required under
Section 2 and none of the disqualifications under
Section 4, of the Commonwealth Act No. 473;
14. He has complied with the requirements of the
Naturalization Law (Commonwealth Act No. 473)
regarding the filing with the Office of the Solicitor
General of his bona fide intention to become a
citizen of the Philippines, as shown in his
Declaration of Intention duly filed on 25 May 2001;
15. It is his intention in good faith to become a
citizen of the Philippines and to renounce
absolutely and forever all allegiance and fidelity to
any foreign prince, potentate, state or sovereignty,
and particularly to Iran of which, at this time, he is
a citizen or subject; that he will reside continuously
in the Philippines from the date of filing of this
petition up to the time of his admission to
Philippine citizenship;
16. Dominador Natividad Tagulo, of legal age,
Filipino, married and residing at ABC Compound,
Quezon Ave., Miputak, Dipolog City and Alton C.
Ratificar, of legal age, Filipino, married and residing
at 047 Burgos Street, Dipolog City, who are Filipino
citizens, whose affidavits are attached to his
petition, will appear and testify as witnesses at the
hearing thereof.
[Emphasis Supplied]
On July 2, 2002, after finding the petition sufficient
in form and substance, the RTC issued an order
setting the petition for hearing on October 21,
2002 and ordering the publication thereof, once a
week for three (3) consecutive weeks, in the
Official Gazette and in a newspaper of general
circulation in Zamboanga del Norte and in the cities
of Dipolog and Dapitan. In the same Order, persons
concerned were enjoined to show cause, if any,
why the petition should not be granted and oppose
the petition.
On July 22, 2002, the RTC amended its previous
order and, with notice to the Office of the Solicitor
General (OSG), reset the hearing on September 10,
2003 instead because the National Printing Office
could no longer accommodate the publication
requirement before the first hearing date.
On December 2, 9 and 16, 2002, copies of the
amended order and Karbasi’s petition were
published in the Official Gazette. Subsequently, the
same were published in Press Freedom on January
27, February 3 and 10, 2003. The said copies were
likewise posted on the bulletin boards of the RTC
and the Municipal Building of Roxas, Zamboanga
del Norte and Capitol Building, Dipolog City.
On September 10, 2003, Karbasi and his counsel
appeared and presented proof of compliance with
the jurisdictional requirements. Nobody appeared
to interpose an objection to the petition. During
the hearing on May 18, 2006, Alton C.
Ratificar (Ratificar) and Dominador Natividad
Tagulo (Tagulo) testified as character witnesses.
Ratificar testified that in 1990, he was introduced
to Karbasi whose house was located about 30
meters away from his; that he came to know him
since then; that when Karbasi got married, he was
invited to the wedding ceremony where the then
City Mayor of Dipolog was one of the wedding
sponsors; that he also attended the celebration;
that he used to see Karbasi almost every day as he
owned an electronics repair shop near his house;
that Karbasi would also allow neighbors, who did
not own television sets at home, to watch shows at
his repair shop; that he never heard of any
complaint by the neighbors against Karbasi, who
went to church during Sundays and even on
weekdays; that on several occasions, he was
invited to Karbasi’s home, where he observed his
good relationship with his in-laws and his
treatment of his wife and child which was in
accordance with Filipino customs; and that Karbasi
talked to him in both Visayan and English.
For his part, witness Tagulo testified that he
worked at the Andres Bonifacio College and had
known Karbasi since July 1990 when the latter was
then enrolled in a vocational course; that Karbasi
was very respectful to his instructors and that he
had good grades; that he treated his schoolmates
in accordance with Filipino customs; that he never
showed any inclination to violence; that when
Karbasi transferred to Dumaguete City, he visited
him there; and that during this visits, Tagulo
witnessed how Karbasi socially interacted and
mingled with the rest of the community.
On August 10, 2006, the wife of Karbasi, Cliji G.
Lim (Cliji), also took the witness stand. She testified
that her father introduced her to Karbasi during her
graduation party; that a courtship followed
thereafter for five months, during which Karbasi
was well-behaved and acted like any other Filipino;
that when Karbasi proposed marriage to her, he
was accompanied by his brother, Ali Karbasi; that
Karbasi’s baptism as a Catholic coincided with her
birthday; that after their marriage, they begot two
(2) children; that Karbasi continuously stayed with
his family and never returned to Iran; that he was
a good husband, father and provider; that all his
income from the repair shop was turned over to
her for the budgeting of the family’s expenses; and
that he was then earning a daily income of
P1,000.00.
She added that Karbasi and his family regularly
attended the Catholic mass and received
communion; that they were active members of
Couples for Christ since 2003; that he actively
participated in Catholic practices like the novena
and vigil for her deceased grandfather; that Karbasi
was not a polygamist and that he did not flirt with
other women; that she never heard her husband
speak of any terrorist groups; and that he was
never known to have an immoral reputation.
On several hearing dates thereafter, Karbasi
himself took the witness stand. As summarized by
the RTC, the gist of his testimony is as follows:
He is an Iranian national. He was born in Tehran,
Iran, and resided there since birth up to 1986. His
father is Abdolhossein Karbasi, a doctor in Iran, and
his mother is Narjes Froghnia Karbasi, a retired
teacher.
He has five brothers and two sisters. The eldest of
the brood, Hamid Reza Karbasi, is in the United
States of America and is now an American Citizen.
The second, Dr. Ali Reza Karbasi, admitted as
Filipino citizen in the Regional Trial Court, Branch 6,
Dipolog City, is in the Philippines. The third is Qite
Karbasi, his sister. The fourth, his brother, Dr.
Abduoul Reza Karbasi, graduated in India. The fifth,
his sister, Kia Karbasi, is a nurse. The sixth, his
brother Qolam Reza Karbasi, is an engineer who
graduated in France. His last four siblings are all in
Iran.
He was a Shiite Muslim before he was converted as
Roman Catholic. His former religion believes in the
existence of a Supreme Being called God. It
believes in the existence of government and
repudiates violence. His said religion is not within
an organization of Al Qaeda, Jemayah Islamiya, or
any terrorist group. It also adheres to the principle
of one man-one woman marital relation. He and his
brother, Ali Reza Karbasi, left Iran in 1986 because
of the war between Iran and Iraq at that time.
When the Shah of Iran, Pahlavi, was overthrown by
Ayatolah Khomini in 1979, some Iranian nationals
left Iran. He and Ali Reza, who also condemns the
act of overthrowing an existing government by
force and violence, were among those who left.
Since the government confiscated his passport,
they traveled by camel and passed by the desert
during night time to reach Pakistan. He stayed
there for almost three (3) years,
Being foreigners in Pakistan, they submitted
themselves to the United Nations High
Commissioner for Refugees. However, they were
not granted the status of refugee right away since
Pakistan is adjacent to Iran. They had to transfer to
a third country not at war with Iran. Since his
brother Ali Reza was already studying in the
Philippines, they decided to come here.
As it was difficult for him to get travel documents,
petitioner procured a Pakistani passport under the
assumed name of Syed Gul Agha.
Upon his arrival in the Philippines on July 11, 1990,
he submitted himself to the United Nations in
Manila. After several interviews, he was admitted
as a refugee and, later on, as a person of concern.
As a refugee, he was granted by the United Nations
allowances, medical benefits and protection to
some extent.
After having been interviewed by the Solicitor
General regarding his intention to become a
Filipino citizen, he filed the corresponding
Declaration of Intention, dated March 28, 2001, on
May 25, 2001.
Sometime in 2002, petitioner, having signified his
intention to become a Filipino citizen, was issued a
certification captioned "UN High Commissioner for
Refugees, Liaison Office for the Philippines," dated
25 June 2002, certifying that he has been
recognized as a person of concern who arrived in
the Philippines on 11 July 1990 on board Philippine
Airlines flight 731 under an assumed name (Syed
Gul Agha).
At the time of the filing of the petition, he was
already married and residing at 341 Burgos Street,
Dipolog City. However, upon arrival in the
Philippines, he first resided at Panay Avenue,
Quezon City, where he stayed for almost six
months. During those times, the United Nations
provided him a monthly allowance of P2,800.00,
being a refugee. He then transferred to Burgos
Street, Miputak, Dipolog City, where he stayed at
the house of the fatherin- law of his brother Ali
Reza for a month.
He then moved to Sta. Filomena, Dipolog City, at
the house of his sister-in-law. It was during this
time that he enrolled at Andres Bonifacio College
where he studied from 1990 to 1992. He finished a
two-year vocational course in said school as
evidenced by a Diploma issued by the Andres
Bonifacio College, Dipolog City. In Iran, he finished
Bachelor of Science in Economics.
He then pursued a four-year course (Bachelor of
Science in Industrial Technology Major in
Electronics) at the Central Visayas Polytechnic
College in Dumaguete City. He resided in the
Capitol Area of said city. He was already receiving a
monthly allowance of P4,800.00 from the United
Nations at that time. He graduated from said
institution as evidenced by a Diploma issued by
said school. He also attended technical trainings
conducted by Asian Durables Manufacturing, Inc.
as evidenced by a Certificate of Attendance issued
by said company.
In 1996, he returned to Dipolog City and resided at
Burgos Street where he opened his electronics
repair shop (KX3 Electronics Repair Shop).
On October 12, 2000, he got married. The couple
transferred to the house of his parents-in-law after
the marriage. When the grandfather of his wife got
ill, they were requested to take care of him. Thus,
the couple transferred their residence to Dohinob,
Roxas. However, they moved back to their house in
Burgos Street, Dipolog City, as it is nearer to a
hospital. When his grandfather-in-law died, he
participated in all the rites and ceremonies relative
to his wake and burial.
At present, his repair shop’s gross monthly income
hovers between P20,000.00 to P25,000.00."4
Additionally, Karbasi claimed that he had never
been involved in any demonstration or mass action
protesting any issuances, policies or acts of the
Philippine Government and its officials; that he had
never made any rebellious or seditious utterances;
that he believed in the principles underlying the
Philippine Constitution and he had even
memorized the preamble; and that he can also sing
the Philippine National Anthem and recite the
Filipino Patriotic Pledge, both of which he did in
open court.
The following documents were proffered in
Karbasi’s Formal Offer of Exhibits: 1] Identity Card
issued by Iran to prove his Iranian citizenship; 2]
Pakistani passport with visa under the assumed
name of Syed Gul Agha; 3] Certifications and
Identification Card issued by the UNHCR to prove
his status as a refugee and, later, as a "person of
concern"; 4] Alien Certificate of Registration; 5]
Certifications to prove Filipino nationality of
Karbasi’s wife, Cliji G. Lim; 6] Certificate of Marriage
between Karbasi and Cliji; 7] Certificates of Live
Birth of his children Keenyji and Kerl Jasmen; 8]
Karbasi’s Certificate of Baptism; 9] Affidavits of his
character witnesses Alton C. Ratificar and
Dominador Tagulo; 10] Police and NBI Clearances;
11] Certifications and Diploma to prove his
completion of vocational technology, BS Industrial
Technology, and training seminars; 12] Alien
Employment Permit for Refugees; 13] Business
Permit, Clearances and DTI Certificates of
Accreditation to KX3 Repair Shop, Karbasi’s source
of livelihood; 14] Income Tax Returns for the years
2001 to 2005; and 15] Contract of Service with
Quality Circuits Services, Inc. and Kolins Philippines
Intl. Inc., including a Summary of Accounts paid to
KX3 Electronics Repair Shop.5
On January 17, 2007, the RTC found Karbasi’s
evidence sufficient to support his petition. Finding
Karbasi as possessing all the qualifications and
none of the disqualifications to become a Filipino
citizen, the RTC rendered its decision, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the petition
for naturalization filed by KAMRAN F. KARBASI to
be admitted as citizen of the Philippines is hereby
GRANTED.
SO ORDERED.6
Not in conformity, the Republic of the Philippines,
through the Office of the Solicitor
General (OSG), interposed an appeal to the CA,
based mainly on the ground that the RTC erred in
granting Karbasi’s petition as he failed to comply
with the provisions of Commonwealth Act No.
473 (Naturalization Law) on character, income and
reciprocity. Specifically, the OSG pointed out that
Karbasi failed to establish that: 1] Iran grants
reciprocal rights of naturalization to Filipino
citizens; 2] he has a lucrative income as required
under the law; and 3] he is of good moral character
as shown by his disregard of Philippine tax laws
when he had underdeclared his income in his
income tax returns (ITRs) and overstated the same
in his petition for naturalization.
On January 29, 2013, the CA rendered the assailed
decision affirming the grant of Filipino citizenship
to Karbasi. The dispositive portion of the CA
decision reads:
WHEREFORE, premises considered, the appeal
is DENIED. The Decision dated 17 January 2007 of
the Regional Trial Court of Dipolog City, Branch 10
in Naturalization Case No. 2866 is AFFIRMED.
SO ORDERED.7
The CA ruled that the alleged under declaration in
Karbasi’s ITRs was prepared in good faith because
he was of the belief that he no longer needed to
include the income he received as payment of his
services to Daewoo Electronics Electronics
Services, Inc. (Daewoo) and Kolins Philippines
International, Inc. (Kolins), because the same were
already withheld at source. The CA likewise
affirmed the RTC finding that Karbasi, as a refugee,
need not prove reciprocity between Philippine and
Iranian laws.
Hence, this petition.
Position of the OSG
The OSG asserts that the findings of the courts a
quo are not in accord with law and jurisprudence
because Karbasi failed to prove that he had a
lucrative income and an irreproachable character.
It insists that Karbasi failed to establish his lucrative
income considering that at the time of the filing of
his petition for naturalization in 2002, his gross
income was P21,868.65. Per table of Annual
Income and Expenditure in Western Mindanao, the
average income for the year 2000 was P86,135.00
and for 2003 was P93,000.00. This shows that
Karbasi’s declared gross income was way below the
average income and average expenses in Western
Mindanao, the region where Dipolog City, his
residence, is located. The OSG argues that even if
the subsequent years were to be considered,
Karbasi’s income was still insufficient as compared
to the average income and expenditure in the area.
Karbasi’s declared income for the years 2003, 2004
and 2005 were P31,613.00, P41,200.00 and
P39,020.00, respectively. The same table
presentation, however, provides that the average
expenditure for the year 2000 was P69,452.00, and
for the year 2003 was P75,000.00. This shows that
Karbasi’s declared gross income was not enough to
support his family within the contemplation of the
law. Whether based on his testimony or on his ITRs,
Karbasi’s gross income was not adequate, given the
high cost of living prevailing in the region. The OSG
also mentions that Karbasi’s child had started
formal schooling which would entail substantial
income on the part of Karbasi, so that he could
meet his family’s needs.
The OSG cites the discrepancy between his petition
for naturalization and his ITRs as another reason to
deny his application for Filipino citizenship. An
examination of the petition discloses that Karbasi
claimed an annual income of P80,000.00. He had
also declared in his testimony that he was earning
P20,000.00 to P25,000.00, monthly, from his
electronic repair shop. His ITRs on the other hand,
show his gross income as P14,870.00 in 2001;
P21,868.65 in 2002; P31,613.00 in 2003;
P41,200.00 in 2004; and P39,020.00 in 2005.
The OSG further argues that the
"underdeclaration" of Karbasi’s income in his ITRs
reflects his disregard of Philippine tax laws and,
worse, its overstatement in his petition indicates
his intent to make it appear that there was
compliance with the Naturalization Law, when
there was actually none. According to the OSG, this
negates irreproachable behavior which required of
every applicant for naturalization because the
failure to enter the true income on the tax return
is indicative of dishonesty. The OSG cited the ruling
in Republic v. Yao,8 where the Court ordered the
cancellation of the naturalization certificate issued
to the applicant therein upon the discovery of his
underdeclaration and underpayment of income
tax. In the OSG’s words, "[u]nderdeclaration of
income is a serious matter that it is used as a
ground to cancel the certificate of naturalization. If
the court can reverse the decision in an application
for naturalization, with more reason can
underdeclaration be considered in denying an
application," as in Karbasi’s case.9
Position of Karbasi
In the April 7, 2014 Resolution of the Court, Karbasi
was required to file a comment on the petition in
which he mainly argued that the petition did not
raise questions of law but questions of facts which
were too unsubstantial to require consideration.
He countered that while, admittedly, the "lucrative
trade/occupation" requirement under the law
must be complied with, it has been emphasized in
jurisprudence that, the objective of this economic
requirement is to ensure that the applicant should
not become a public charge or an economic burden
upon the society.10 Karbasi claims that he had
more than satisfactorily established his lucrative
trade or occupation, showing that he would
become a citizen who could contribute to national
progress. This has been clearly and unanimously
appreciated by the RTC and the CA.
Karbasi also avers that the analysis of the OSG with
respect to the data on Annual Income and
Expenditure in Western Mindanao is misplaced.
Firstly, the data presented were merely statistical
and not actual, and did not reflect the
circumstances relative to a specific subject or
person. Hence, these are greatly unreliable with
respect to a specific person in a naturalization case.
At best, it was only intended for the purpose it was
made – for planning and for policy making of the
government and not to determine whether a
certain trade, occupation or income is lucrative or
not.
Anent the allegation that the underdeclaration of
his income projects was a flaw on his moral
character, Karbasi point out that he had sincerely
explained that his failure to declare his correct
annual income was in good faith not intended to
commit fraud. He believed that the other sources
of his income apart from his repair shop had
already been withheld by the companies for whom
he had rendered services. For Karbasi, the meaning
of "irreproachable" as required by the law does not
mean "perfectly faultless."
On September 18, 2014, Karbasi moved for leave
of court to file a supplemental pleading, in which
he insisted that pursuant to the 1951 Convention
Relating to the Status of Refugees and the 1967
Protocol Relating to the Status of Refugees, to
which the Philippines was a signatory, the country
was bound to safeguard the rights and well-being
of the refugees and to ensure the facility of their
local integration including naturalization. Karbasi
reasoned that this was precisely why Department
Circular 58 Series of 2012 was issued by the
Department of Justice (DOJ). Under the said
circular, the Refugees and Stateless Persons Unit
was created not only to facilitate the identification
and determination of refugees but also for the
protection of these refugees.
Karbasi insisted that unlike any other alien applying
for naturalization, he had to leave Iran out of fear
of persecution without any mental and financial
preparation, and only with a view of finding safe
refuge in the Philippines.
Reply of OSG
In its Reply, the OSG contended that Karbasi could
not downplay the significance of the Data on
Annual Income and Expenditure in Western
Mindanao, as it was an accurate illustration of the
financial condition of a typical family in a particular
region. The said table was prepared by the National
Statistics Coordination Board (NSCB), which
strengthened the credibility of the report. The OSG
explained that whether the data were statistical or
actual, the numbers still reflected the financial
standing of Karbasi. It followed then that Karbasi
could not claim good faith in failing to declare the
income he gained from his transactions with
several companies. He even failed to present a
certificate of tax withheld to show that these
companies had actually remitted the withholding
taxes due to the Bureau of Internal Revenue. Even
assuming that Karbasi’s declared income allegedly
excluded the amount withheld by these
companies, the OSG claimed that his income would
still be below the standard income and expenditure
per the table.
The Court’s Ruling
The Court is confronted with the issue of whether
or not the CA had correctly affirmed the RTC
decision granting Karbasi’s application for
naturalization despite the opposition posed by the
OSG.
Citizenship is personal and, more or less a
permanent membership in a political community.
It denotes possession within that particular
political community of full civil and political rights
subject to special disqualifications. Reciprocally, it
imposes the duty of allegiance to the political
community.11 The core of citizenship is the
capacity to enjoy political rights, that is, the right to
participate in government principally through the
right to vote, the right to hold public office and the
right to petition the government for redress of
grievance.12
No less than the 1987 Constitution enumerates
who are Filipino citizens.13 Among those listed are
citizens by naturalization. Naturalization refers to
the legal act of adopting an alien and clothing him
with the privilege of a native-born citizen. Under
the present laws, the process of naturalization can
be judicial or administrative. Judicially, the
Naturalization Law provides that after hearing the
petition for citizenship and the receipt of evidence
showing that the petitioner has all the
qualifications and none of the disqualifications
required by law, the competent court may order
the issuance of the proper naturalization certificate
and its registration in the proper civil registry. On
the other hand, Republic Act (R.A.) No. 9139
provides that aliens born and residing in the
Philippines may be granted Philippine citizenship
by administrative proceeding by filing a petition for
citizenship with the Special Committee, which, in
view of the facts before it, may approve the
petition and issue a certificate of
14
naturalization. In both cases, the petitioner shall
take an oath of allegiance to the Philippines as a
sovereign nation.
It is a well-entrenched rule that Philippine
citizenship should not easily be given away. 15 All
those seeking to acquire it must prove, to the
satisfaction of the Court, that they have complied
with all the requirements of the law. The reason for
this requirement is simple. Citizenship involves
political status; hence, every person must be proud
of his citizenship and should cherish it.
Naturalization is not a right, but one of privilege of
the most discriminating, as well as delicate and
exacting nature, affecting, as it does, public
interest of the highest order, and which may be
enjoyed only under the precise conditions
prescribed by law therefor.16
Jurisprudence dictates that in judicial
naturalization, the application must show
substantial and formal compliance with the law. In
other words, an applicant must comply with the
jurisdictional requirements; establish his or her
possession of the qualifications and none of the
disqualifications enumerated under the law; and
present at least two (2) character witnesses to
support his allegations.17 Section 2 of the
Naturalization Law clearly sets forth the
qualifications that must be possessed by any
applicant, viz:
Section 2. Qualifications. – Subject to section four
of this Act, any person having the following
qualifications may become a citizen of the
Philippines by naturalization:
First. He must be not less than twenty-one years of
age on the day of the hearing of the petition;
Second. He must have resided in the Philippines for
a continuous period of not less than ten years;
Third. He must be of good moral character and
believes in the principles underlying the Philippine
Constitution, and must have conducted himself in
a proper and irreproachable manner during the
entire period of his residence in the Philippines in
his relation with the constituted government as
well as with the community in which he is living.
Fourth. He must own real estate in the Philippines
worth not less than five thousand pesos, Philippine
currency, or must have some known lucrative
trade, profession, or lawful occupation;
Fifth. He must be able to speak and write English or
Spanish and any one of the principal Philippine
languages;
Sixth. He must have enrolled his minor children of
school age, in any of the public schools or private
schools recognized by the Office of Private
Education1 of the Philippines, where the Philippine
history, government and civics are taught or
prescribed as part of the school curriculum, during
the entire period of the residence in the Philippines
required of him prior to the hearing of his petition
for naturalization as Philippine citizen.
[Emphasis supplied]
The contention in this case revolves around the
following points:
1. the sufficiency of Karbasi’s income for purposes
of naturalization;
2. the effect of the alleged discrepancy in the
amounts of his gross income as declared in his ITRs,
on one hand, and in his petition for naturalization
on the other; and
3. the necessity of proving reciprocity between
Iranian and Philippine laws on naturalization.
The Court resolves these issues in seriatim.
First. A reading of the OSG’s pleadings discloses
that its position arose out of a comparison made
between Karbasi’s declared income and the
amounts reflected in the Data on Annual Income
and Expenditure in Western Mindanao issued by
the NSCB. The OSG also invokes the past rulings of
the Court where the concept of "lucrative trade,
trade, profession or lawful occupation" was
explained in this wise:
It means not only that the person having the
employment gets enough for his ordinary
necessities in life. It must be shown that the
employment gives one an income such that there
is an appreciable margin of his income over his
expenses as to be able to provide for an adequate
support in the event of unemployment, sickness, or
disability to work and thus avoid one’s becoming
the object of charity or a public charge. His income
should permit him and the members of his family
to live with reasonable comfort, in accordance with
the prevailing standard of living, and consistently
with the demands of human dignity, at this stage of
our civilization.18
A long line of cases reveals that the Court did not
hesitate in reversing grants of citizenship upon a
showing that the applicant had no lucrative income
and would, most likely, become a public charge. A
summary of some of these notable cases is in
order:
1. In the Matter of the Petition for
Admission to Philippine Citizenship of
Engracio Chan also known as Nicasio
Lim.19– The Court found that the petitioner,
who was a salesman at the Caniogan Sari-
Sari and Grocery Store, then located in
Pasig, Rizal, from which he received a
monthly salary of P200.00, with free board
and lodging, had no lucrative income. Even
if the petitioner was then an unmarried
man without dependents, a monthly
income of P200.00 with free board and
lodging, was not considered gainful
employment. Further, there was no proof
that he was legally authorized to use
an alias and his use thereof, being in
violation of the Anti-Alias Law, was
indicative of a reproachable conduct.
2. In the Matter of the Petition of Antonio
Po to be admitted a Citizen of the
Philippines.20– The Court found Antonio Po,
then single and employed as collector of
the Surigao Chamber of Commerce as
without lucrative income on the ground
that his employment had so long depended
upon the selection of the succeeding
presidents of the chamber and that he then
got free board and lodging by living with his
widowed mother. Simply put, there was not
enough stability in his claimed salary. His
additional income gained from helping his
mother to run a store was also insufficient
to satisfy the law, in the amount and in its
steadiness. His free board and lodging
pretense was also discerned as indicative of
dependence upon his mother for support.
3. In the Matter of the Petition of Tanpa
Ong Alias Pedro Tan to be admitted a
Citizen of the Philippines.21– The income of
the applicant as contemplated in the
naturalization law was only P3,000.00 a
year. Considering that he had a wife and
seven children to support, this income was
held as insufficient to meet the high cost of
living at that time.
4. Keng Giok v. Republic.22– The Court held
that an income of P9,074.50 per annum
was not sufficient for a married applicant
with a wife and five children to support.
5. Sy Ang Hoc vs. Republic.23– The Court
held that his income, derived from
employment in a business enterprise of the
 petitioner's father, was not sufficient to
establish compliance with the statutory
requirement of lucrative occupation or
calling.
6. In the Matter of the Petition to be
admitted a Citizen of the Philippines by
Pantaleon Sia alias Alfredo Sia.24 –The
Court ruled that the determination of
lucrative income or occupation should be
reckoned as of the time of the filing of the
petition. The Court decided against the
petitioner as his regular salary was not
ample enough to defray his family’s
expenses. The excess amounts
representing his bonuses and commissions
should not be considered in determining
whether or not petitioner had a lucrative
income or occupation.
With the pronouncements in these cases in mind,
the comparison made by the OSG now begets
another question: can the possession of an
applicant’s lucrative trade, profession or lawful
occupation, for purposes of naturalization, be fairly
determined through a simplistic read-through on
government data?
The Court answers in the negative.
While it is true that a naturalization case is not an
ordinary judicial contest to be decided in favor of
the party whose claim is supported by the
preponderance of the evidence, this does not
accord infallibility on any and all of the OSG’s
assertions. If this were the case, the rules of
evidence might as well be brushed aside in order to
accord conclusiveness to every opposition by the
Republic. Needless to state, the Court still has the
final authority and duty to evaluate the records of
proceedings a quo and decide on the issues with
fair and sound judgment.
Here, it is clear that the circumstances prevailing in
the above-cited cases are not at all attendant in
Karbasi’s situation. There was neither a showing
that Karbasi was dependent on another person for
support nor proof that his family’s extraordinary
expenses that would render his income as
inadequate. As in any other business venture, the
risk of losses is a possibility for his repair shop but,
still, this risk was not clearly established to render
his livelihood as unstable and volatile. In fact, the
OSG does not belie the fact that Karbasi has been
engaged by reputable companies for his services.
Conversely, the findings of the RTC would indicate
that Karbasi had indeed exhibited industry and
hard work in putting up his repair shop business
and that his wife considered him as a good
provider, not to mention a vocational and college
degree holder. Admittedly, testimonies in favor of
an applicant for naturalization are expected to be
self-serving. Nevertheless, the Court finds it
difficult to agree with the OSG’s meager use of
government data to prove that Karbasi would
become a burden to the Philippine society in the
future. Except for its own citation of government
data, nothing else was presented to establish that
Karbasi had indeed no lucrative income or trade to
support himself and his family.
To accept the OSG’s logic is a dangerous precedent
that would peg the compliance to this requirement
in the law to a comparison with the results of
research, the purpose of which is unclear. This is
not to say that the data produced by government
research are inappropriate, or much less irrelevant
in judicial proceedings. The plain reliance on this
research information, however, may not be
expected to produce the force of logic which the
OSG wants to attain in this case. Besides, had the
law intended for government data on livelihood
and income research to be used as a gauge for the
"lucrative income" requirement, it must have
stated the same and foreclosed the Court’s power
to assess existing facts in any given case. Here, the
Court opts to exercise this power and delve into a
judicious review of the findings of the RTC and the
CA and, as explained, to rule that Karbasi,
possesses a lucrative income and a lawful
occupation, as required by the Naturalization
Law.1âwphi1
At this point, it is worthy to note the Court’s ruling
in Republic v. Court of Appeals and
25
Chua (Chua), where the Court assessed the
prevailing circumstances of an applicant for
naturalization who was a medical student at the
time of the filing of her petition. In Chua, the Court
rejected the Republic’s argument that the
applicant’s status as a subsequent passer of the
Board Examinations of 1985 for Doctors of
Medicine could not by itself be equated with
"gainful employment or tangible receipts." The
Court held that this interpretation of the income
requirement in the law is "too literal and
restrictive." It then cited Uy v. Republic,26 where
the Court laid down the public policy underlying
the lucrative income requirement as follows:
[T]he Court must be satisfied that there is
reasonable assurance not only that the applicant
will not be a social burden or liability but that he is
a potential asset to the country he seeks to adopt
for himself and quite literally, for his children and
his children's children.
The Court, in Chua, continued:
The economic qualification for naturalization may
be seen to embody the objective of ensuring that
the petitioner would not become a public charge
or an economic burden upon society. The
requirement relates, in other words, not simply to
the time of execution of the petition for
naturalization but also to the probable future of
the applicant for naturalization. In the case at bar,
the Solicitor General does not dispute that
respondent applicant, then a student, was earning
P2,000.00 a month, with free board and lodging, at
the time she filed her Petition in August 1984.
While this amount was not, even in 1984, exactly a
princely sum, she was not then a public charge and
the respondent applicant having passed the
qualifying medical board examinations, can
scarcely be regarded as likely to become a public
charge in the future should she be admitted as a
citizen of this Republic. Respondent is certainly in a
position to earn substantial income if allowed to
exercise her profession. Being a Doctor of
Medicine, she is also clearly a "potential asset to
the country."27
As in Chua’s case, it does not at all seem likely that
Karbasi, in his current circumstances, will ever
become a public charge. It bears emphasis to note
that from a refugee who had nothing when he
came to the Philippines, Karbasi had indeed
refused to be the object of charity by working hard
to graduate from college and to eventually engage
in business to give his family support and comfort.
The CA could not have explained this in better
terms—
Thus, Karbasi went from being a refugee – who was
dependent on the UNCHR for support – to a self-
made entrepreneur who can ably support himself
and his family. As such, there is no showing that
Karbasi may turn out to be a public charge and a
burden to our country’s resources. The fact
moreover that he overcame this adversity through
his education and skills shows that he is a potential
asset of the country.
Second. The OSG raised the issue of Karbasi’s
alleged underdeclaration of income in his ITRs. It
contended that even if Karbasi had, indeed, a
lucrative means of earning, his failure to declare
the income which he had earned from service
contracts and to present any proof of the
withholding of the taxes thereon, would reflect
adversely on his conduct, which under the statute
must be "proper and irreproachable." The OSG
cited Lim Eng Yu v. Republic28 (Lim Eng Yu), where
the applicant later refuted the amounts reflected
in his ITRs in order to prove that he had lucrative
trade or occupation. The Court rebuffed this
"eleventh hour explanation" and concluded that
the applicant had to conceal his true income for the
purpose of evading payment of lawful taxes. The
Court found that Lim Eng Yu, at that time, had a
wife and two children, so, at most, his total tax
exemption then, was P5,000.00. Had he stated the
net incomes he claimed in his ITRs, he would have
been required to pay income taxes, it appearing
that the same exceeded his exemption under the
law. Such conduct showed that Lim Eng Yu’s moral
character was not irreproachable, or as good as it
should be, thus, disqualifying him for
naturalization.
Like the CA, the Court is inclined not to apply the
rigidity of the ruling in Lim Eng Yu to the present
case. Unlike Lim Eng Yu, Karbasi did not deny the
charge of the OSG and instead admitted a
procedural lapse on his part. Here, there is no
showing that the income earned by Karbasi was
undeclared in order to benefit from statutory tax
exemptions. To clarify, this does not intend to
downplay the requirement of good moral
character in naturalization cases. It bears stressing
that the granting of applications for naturalization
still necessitates that only those who are deserving
may be admitted as Filipino citizens. The character
of the applicant remains to be one of the significant
measures to determine entitlement to Filipino
citizenship. Nonetheless, the tenor of the ground
used for the denial of the application in Lim Eng
Yu is not akin to what happened in this case.
Clearly, in Lim Eng Yu, the petitioner altogether
intended to evade the payment of taxes by abusing
the benefits granted by tax exemptions.1âwphi1 In
this case, Karbasi did not deny that he gained
income through his transactions with Daewoo and
Kolin. He even presented, as evidence, the
contracts of service he had entered into with the
companies including a Summary of Accounts paid
to his repair shop. He did not disclaim that he had
rendered services to these companies and that he
had earned a considerable sum therefrom. Instead,
he explained the cause of his lapse and
acknowledged his mistaken belief that his earnings
from these transactions need not be declared in his
ITRs as these were withheld already.
Again, it is not the objective of the Court to justify
irregularities in ITRs by reason of a "mistaken
belief." The Court, however, finds it difficult to
equate Karbasi’s lapse with a moral depravity that
is fatal to his application for Filipino citizenship.
This mistaken understanding of the proper way to
declare income is actually so common to individual
taxpayers, including lawyers and other
professionals. While this is not to be taken as an
excuse for every irregularity in ITRs, the Court is not
prepared to consider this as an outright reflection
of one’s immoral inclinations. With due
consideration to his character as established by
witnesses, and as observed by the RTC during the
hearings, Karbasi should be deemed to have
sufficiently explained his mistake.
In the case of Chua, the Court had even
disregarded the OSG’s argument that the
applicant’s failure to execute her ITR "reflects
adversely on her conduct." Her explanation of non-
filing as an "honest mistake" was accepted by the
Court with due regard to the other circumstances
of her case. Like the CA, the Court also finds the
same degree of sincerity in Karbasi’s case, for he
was candid enough to elicit this conclusion.
Besides, there was no suggestion in the records
that Karbasi habitually excluded particular income
in his ITRs. Echoing the findings in Chua, the Court
does not believe that this one lapse should be
regarded as having so blackened Karbasi’s
character as to disqualify him from naturalization
as a Philippine citizen.
Third. Considering the above disquisitions, the
Court does not need to belabor the last issue on
reciprocity between Iranian and Philippine laws on
naturalization. True, the Naturalization Law
disqualifies citizens or subjects of a foreign country
whose laws do not grant Filipinos the right to
become naturalized citizens or subjects. A perusal
of Karbasi’s petition, both with the RTC and the CA,
together with his supplemental pleadings filed with
the Court, however, reveals that he has
successfully established his refugee status upon
arrival in the Philippines. In effect, the country’s
obligations under its various international
commitments come into operation. Articles 6 and
34 of the 1951 Convention relating to the Status of
Refugees, to which the Philippines is a signatory,
must be considered in this case, to wit:
Article 6 of the 1951 Convention:
For the purposes of this Convention, the term "in
the same circumstances" implies that any
requirements (including requirements as to length
and conditions of sojourn or residence) which the
particular individual would have to fulfill for the
enjoyment of the right in question, if he were not a
refugee, must be fulfilled by him, with the
exception of requirements which by their nature a
refugee is incapable of fulfilling.
Article 34 of the 1951 Convention:
The Contracting States shall as far as
possible facilitate the assimilation and
naturalization of refugees. They shall in
particular make every effort to expedite
naturalization proceedings and to reduce as far as
possible the charges and costs of such proceedings.
In the same vein, Article 729 of the said Convention
expressly provides exemptions from reciprocity,
while Article 34 states the earnest obligation of
contracting parties to "as far as possible facilitate
the assimilation and naturalization of refugees." As
applied to this case, Karbasi' s status as a refugee
has to end with the attainment of Filipino
citizenship, in consonance with Philippine statutory
requirements and international obligations.
Indeed, the Naturalization Law must be read in
light of the developments in international human
rights law specifically the granting of nationality to
refugees and stateless persons.
WHEREFORE, the petition is DENIED. September 1968, Emiliano reported and registered
petitioner as a foundling with the Office of the Civil
SO ORDERED. Registrar of Iloilo City (OCR-Iloilo). In her Foundling
Certificate and Certificate of Live Birth, the
G.R. No. 221697 petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1
MARY GRACE NATIVIDAD S. POE-
LLAMANZARES, Petitioners, When petitioner was five (5) years old, celebrity
vs. spouses Ronald Allan Kelley Poe (a.k.a. Fenando
COMELEC AND ESTRELLA C. Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces)
ELAMPARO Respondents. filed a petition for her adoption with the Municipal
Trial Court (MTC) of San Juan City. On 13 May 1974,
x-----------------------x the trial court granted their petition and ordered
that petitioner's name be changed from "Mary
G.R. No. 221698-700 Grace Natividad Contreras Militar" to "Mary Grace
Natividad Sonora Poe." Although necessary
MARY GRACE NATIVIDAD S. POE- notations were made by OCR-Iloilo on petitioner's
LLAMANZARES, Petitioners, foundling certificate reflecting the court decreed
vs. adoption,2 the petitioner's adoptive mother
COMELEC, FRANCISCO S. TATAD, ANTONIO P. discovered only sometime in the second half of
CONTRERAS AND AMADO D. VALDEZ Respondents. 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new
DECISION Certificate of Live Birth indicating petitioner's new
name and the name of her adoptive
PEREZ, J.: parents. 3 Without delay, petitioner's mother
executed an affidavit attesting to the lawyer's
Before the Court are two consolidated petitions omission which she submitted to the OCR-Iloilo. On
under Rule 64 in relation to Rule 65 of the Rules of 4 May 2006, OCR-Iloilo issued a new Certificate of
Court with extremely urgent application for an ex Live Birth in the name of Mary Grace Natividad
parte issuance of temporary Sonora Poe.4
restraining order/status quo ante order and/or writ
of preliminary injunction assailing the following: (1) Having reached the age of eighteen (18) years in
1 December 2015 Resolution of the Commission on 1986, petitioner registered as a voter with the local
Elections (COMELEC) Second Division; (2) 23 COMELEC Office in San Juan City. On 13 December
December 2015 Resolution of the COMELEC En 1986, she received her COMELEC Voter's
Banc, in SPA No. 15-001 (DC); (3) 11 December Identification Card for Precinct No. 196 in
2015 Resolution of the COMELEC First Division; and Greenhills, San Juan, Metro Manila. 5
( 4) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. On 4 April 1988, petitioner applied for and was
15-007 (DC) and SPA No. 15-139 (DC) for having issued Philippine Passport No. F9272876 by the
been issued without jurisdiction or with grave Department of Foreign Affairs (DFA). Subsequently,
abuse of discretion amounting to lack or excess of on 5 April 1993 and 19 May 1998, she renewed her
jurisdiction. Philippine passport and respectively secured
Philippine Passport Nos. L881511 and DD156616. 7
The Facts
Initially, the petitioner enrolled and pursued a
Mary Grace Natividad S. Poe-Llamanzares degree in Development Studies at the University of
(petitioner) was found abandoned as a newborn the Philippines8 but she opted to continue her
infant in the Parish Church of Jaro, Iloilo by a studies abroad and left for the United States of
certain Edgardo Militar (Edgardo) on 3 September America (U.S.) in 1988. Petitioner graduated in
1968. Parental care and custody over petitioner 1991 from Boston College in Chestnuts Hill,
was passed on by Edgardo to his relatives, Emiliano
Militar (Emiliano) and his wife. Three days after, 6
Massachusetts where she earned her Bachelor of
Arts degree in Political Studies. 9
On 27 July 1991, petitioner married Teodoro
Misael Daniel V. Llamanzares (Llamanzares), a
citizen of both the Philippines and the U.S., at
Sanctuario de San Jose Parish in San Juan
City. 10 Desirous of being with her husband who
was then based in the U.S., the couple flew back to
the U.S. two days after the wedding ceremony or
on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her
eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie
(Hanna) and Jesusa Anika (Anika) were both born
in the Philippines on 10 July 1998 and 5 June 2004,
respectively. 13
On 18 October 2001, petitioner became a
naturalized American citizen. 14 She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the
Philippines together with Hanna to support her
father's candidacy for President in the May 2004
elections. It was during this time that she gave birth
to her youngest daughter Anika. She returned to
the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December
2004, petitioner rushed back to the Philippines
upon learning of her father's deteriorating medical
condition. 17 Her father slipped into a coma and
eventually expired. The petitioner stayed in the
country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in
the settlement of his estate.18
According to the petitioner, the untimely demise of
her father was a severe blow to her entire family.
In her earnest desire to be with her grieving
mother, the petitioner and her husband decided to
move and reside permanently in the Philippines
sometime in the first quarter of 2005.19 The couple
began preparing for their resettlement including
notification of their children's schools that they will
be transferring to Philippine schools for the next
semester;20 coordination with property movers for
the relocation of their household goods, furniture
and cars from the U.S. to the Philippines; 21 and
inquiry with Philippine authorities as to the proper
procedure to be followed in bringing their pet dog
into the country.22 As early as 2004, the petitioner
already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on
24 May 200524 and without delay, secured a Tax
Identification Number from the Bureau of Internal
Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in
the U.S. to complete pending projects as well as to
arrange the sale of their family home there. 26
The petitioner and her children briefly stayed at her
mother's place until she and her husband
purchased a condominium unit with a parking slot
at One Wilson Place Condominium in San Juan City
in the second half of 2005.27 The corresponding
Condominium Certificates of Title covering the unit
and parking slot were issued by the Register of
Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her
children of school age began attending Philippine
private schools.
On 14 February 2006, the petitioner made a quick
trip to the U.S. to supervise the disposal of some of
the family's remaining household belongings.29 She
travelled back to the Philippines on 11 March
2006.30
In late March 2006, petitioner's husband officially
informed the U.S. Postal Service of the family's
change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27
April 2006.32 Petitioner's husband resigned from
his job in the U.S. in April 2006, arrived in the
country on 4 May 2006 and started working for a
major Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired
a 509-square meter lot in Corinthian Hills, Quezon
City where they built their family home 34 and to
this day, is where the couple and their children
have been residing.35 A Transfer Certificate of Title
covering said property was issued in the couple's
name by the Register of Deeds of Quezon City on
1June 2006.
On 7 July 2006, petitioner took her Oath of
Allegiance to the Republic of the Philippines
pursuant to Republic Act (R.A.) No. 9225 or the
Citizenship Retention and Re-acquisition Act of
2003.36 Under the same Act, she filed with the
Bureau of Immigration (BI) a sworn petition to
reacquire Philippine citizenship together with
petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006.37 As can be
gathered from its 18 July 2006 Order, the BI acted
favorably on petitioner's petitions and declared
that she is deemed to have reacquired her
Philippine citizenship while her children are
considered as citizens of the
38
Philippines. Consequently, the BI issued
Identification Certificates (ICs) in petitioner's name
and in the names of her three (3) children. 39
Again, petitioner registered as a voter
of Barangay Santa Lucia, San Juan City on 31
August 2006.40 She also secured from the DFA a
new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18
March 2014 and she was issued Philippine Passport
No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III
appointed petitioner as Chairperson of the Movie
and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner
executed an "Affidavit of Renunciation of
Allegiance to the United States of America and
Renunciation of American Citizenship" before a
notary public in Pasig City on 20 October 2010,44 in
satisfaction of the legal requisites stated in Section
5 of R.A. No. 9225.45 The following day, 21 October
2010 petitioner submitted the said affidavit to the
BI46 and took her oath of office as Chairperson of
the MTRCB.47 From then on, petitioner stopped
using her American passport.48
On 12 July 2011, the petitioner executed before
the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of
the United States."49 On that day, she
accomplished a sworn questionnaire before the
U.S. Vice Consul wherein she stated that she had
taken her oath as MTRCB Chairperson on 21
October 2010 with the intent, among others, of
relinquishing her American citizenship. 50 In the
same questionnaire, the petitioner stated that she
had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991
and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued
to petitioner a "Certificate of Loss of Nationality of
the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the
COMELEC her Certificate of Candidacy (COC) for
Senator for the 2013 Elections wherein she
answered "6 years and 6 months" to the question
"Period of residence in the Philippines before May
13, 2013."53 Petitioner obtained the highest
number of votes and was proclaimed Senator on
16 May 2013. 54
On 19 December 2013, petitioner obtained
Philippine Diplomatic Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for
the Presidency for the May 2016 Elections. 56 In her
COC, the petitioner declared that she is a natural-
born citizen and that her residence in the
Philippines up to the day before 9 May 2016 would
be ten (10) years and eleven (11) months counted
from 24 May 2005.57 The petitioner attached to
her COC an "Affidavit Affirming Renunciation of
U.S.A. Citizenship" subscribed and sworn to before
a notary public in Quezon City on 14 October
2015. 58
Petitioner's filing of her COC for President in the
upcoming elections triggered the filing of several
COMELEC cases against her which were the subject
of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President,
Estrella Elamparo (Elamparo) filed a petition to
deny due course or cancel said COC which was
docketed as SPA No. 15-001 (DC) and raffled to the
COMELEC Second Division.59 She is convinced that
the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is
that petitioner committed material
misrepresentation when she stated in her COC that
she is a natural-born Filipino citizen and that she is
a resident of the Philippines for at least ten (10)
years and eleven (11) months up to the day before
the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that
petitioner cannot be considered as a natural-born
Filipino on account of the fact that she was a
foundling.62 Elamparo claimed that international
law does not confer natural-born status and
Filipino citizenship on foundlings.63 Following this
line of reasoning, petitioner is not qualified to apply
for reacquisition of Filipino citizenship under R.A.
No. 9225 for she is not a natural-born Filipino
citizen to begin with.64 Even
assuming arguendo that petitioner was a natural-
born Filipino, she is deemed to have lost that status
when she became a naturalized American
citizen.65 According to Elamparo, natural-born
citizenship must be continuous from birth. 66
On the matter of petitioner's residency, Elamparo
pointed out that petitioner was bound by the
sworn declaration she made in her 2012 COC for
Senator wherein she indicated that she had resided
in the country for only six ( 6) years and six ( 6)
months as of May 2013 Elections. Elamparo
likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born
status under R.A. No. 9225, she still fell short of the
ten-year residency requirement of the Constitution
as her residence could only be counted at the
earliest from July 2006, when she reacquired
Philippine citizenship under the said Act. Also on
the assumption that petitioner is qualified to
reacquire lost Philippine Citizenship, Elamparo is of
the belief that she failed to reestablish her domicile
in the Philippines.67
Petitioner seasonably filed her Answer wherein she
countered that:
(1) the COMELEC did not have jurisdiction
over Elamparo's petition as it was actually a
petition for quo warranto which could only
be filed if Grace Poe wins in the Presidential
elections, and that the Department of
Justice (DOJ) has primary jurisdiction to
revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of
action because it did not contain
allegations which, if hypothetically
admitted, would make false the statement
in her COC that she is a natural-born Filipino
citizen nor was there any allegation that
there was a willful or deliberate intent to
misrepresent on her part;
(3) she did not make any material
misrepresentation in the COC regarding her
citizenship and residency qualifications for:
a. the 1934 Constitutional
Convention deliberations show that
foundlings were considered
citizens;
b. foundlings are presumed under
international law to have been born
of citizens of the place where they
are found;
c. she reacquired her natural-born
Philippine citizenship under the
provisions of R.A. No. 9225;
d. she executed a sworn
renunciation of her American
citizenship prior to the filing of her
COC for President in the May 9,
2016 Elections and that the same is
in full force and effect and has not
been withdrawn or recanted;
e. the burden was on Elamparo in
proving that she did not possess
natural-born status;
f. residence is a matter of evidence
and that she reestablished her
domicile in the Philippines as early
as May 24, 2005;
g. she could reestablish residence
even before she reacquired natural-
born citizenship under R.A. No.
9225;
h. statement regarding the period
of residence in her 2012 COC for
Senator was an honest mistake, not
binding and should give way to
evidence on her true date of
reacquisition of domicile;
i. Elamparo's petition is merely an
action to usurp the sovereign right
of the Filipino people to decide a
purely political question, that is,
 should she serve as the country's
next leader.68
After the parties submitted their respective
Memoranda, the petition was deemed submitted
for resolution.
On 1 December 2015, the COMELEC Second
Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running
for the President of the Republic of the Philippines
in the 9 May 2016 National and Local Elections,
contained material representations which are
false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing
considerations, the instant Petition to Deny Due
Course to or Cancel Certificate of Candidacy is
hereby GRANTED. Accordingly, the Certificate of
Candidacy for President of the Republic of the
Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad
Sonora Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December
2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December
2015 Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos.
221698-700
This case stemmed from three (3) separate
petitions filed by Francisco S. Tatad (Tatad),
Antonio P. Contreras (Contreras) and Amado D.
Valdez (Valdez) against petitioner before the
COMELEC which were consolidated and raffled to
its First Division.
In his petition to disqualify petitioner under Rule 25
of the COMELEC Rules of Procedure,71 docketed as
SPA No. 15-002 (DC), Tatad alleged that petitioner
lacks the requisite residency and citizenship to
qualify her for the Presidency.72
Tatad theorized that since the Philippines adheres
to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings,
cannot be considered natural-born Filipino citizens
since blood relationship is determinative of
natural-born status.73 Tatad invoked the rule of
statutory construction that what is not included is
excluded. He averred that the fact that foundlings
were not expressly included in the categories of
citizens in the 193 5 Constitution is indicative of the
framers' intent to exclude them. 74 Therefore, the
burden lies on petitioner to prove that she is a
natural-born citizen.75
Neither can petitioner seek refuge under
international conventions or treaties to support
her claim that foundlings have a
76
nationality. According to Tatad, international
conventions and treaties are not self-executory
and that local legislations are necessary in order to
give effect to treaty obligations assumed by the
Philippines.77 He also stressed that there is no
standard state practice that automatically confers
natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that
petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because
it only applies to former natural-born citizens and
petitioner was not as she was a foundling. 79
Referring to petitioner's COC for Senator, Tatad
concluded that she did not comply with the ten
(10) year residency requirement. 80 Tatad opined
that petitioner acquired her domicile in Quezon
City only from the time she renounced her
American citizenship which was sometime in 2010
or 2011.81 Additionally, Tatad questioned
petitioner's lack of intention to abandon her U.S.
domicile as evinced by the fact that her husband
stayed thereat and her frequent trips to the U.S. 82
In support of his petition to deny due course or
cancel the COC of petitioner, docketed as SPA No.
15-139 (DC), Valdez alleged that her repatriation
under R.A. No. 9225 did not bestow upon her the
status of a natural-born citizen.83 He advanced the
view that former natural-born citizens who are
repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their
original status as natural-born citizens.84
He further argued that petitioner's own admission
in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years
and six (6) months prior to the 13 May 2013
Elections operates against her. Valdez rejected
petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior
to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet
the ten (10) year residency requirement for
President.
Unlike the previous COMELEC cases filed against
petitioner, Contreras' petition,85 docketed as SPA
No. 15-007 (DC), limited the attack to the residency
issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that
she did not possess the ten-year period of
residency required for said candidacy and that she
made false entry in her COC when she stated that
she is a legal resident of the Philippines for ten (10)
years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning
period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date
when her petition to reacquire Philippine
citizenship was approved by the BI. 87 He asserted
that petitioner's physical presence in the country
before 18 July 2006 could not be valid evidence of
reacquisition of her Philippine domicile since she
was then living here as an American citizen and as
such, she was governed by the Philippine
immigration laws.88
In her defense, petitioner raised the following
arguments:
First, Tatad's petition should be dismissed outright
for failure to state a cause of action. His petition did
not invoke grounds proper for a disqualification
case as enumerated under Sections 12 and 68 of
the Omnibus Election Code.89 Instead, Tatad
completely relied on the alleged lack of residency
and natural-born status of petitioner which are not
among the recognized grounds for the
disqualification of a candidate to an elective
office.90
Second, the petitions filed against her are basically
petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency. 91 A
petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal
(PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-
born Filipino citizen is on the
93
respondents. Otherwise stated, she has a
presumption in her favor that she is a natural-born
citizen of this country.
Fourth, customary international law dictates that
foundlings are entitled to a nationality and are
presumed to be citizens of the country where they
are found.94 Consequently, the petitioner is
considered as a natural-born citizen of the
Philippines.95
Fifth, she claimed that as a natural-born citizen,
she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the
Philippine Government enjoy the presumption of
regularity, to wit: the issuance of the 18 July 2006
Order of the BI declaring her as natural-born
citizen, her appointment as MTRCB Chair and the
issuance of the decree of adoption of San Juan
RTC.97 She believed that all these acts reinforced
her position that she is a natural-born citizen of the
Philippines.98
Sixth, she maintained that as early as the first
quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as
demonstrated by her children's resettlement and
schooling in the country, purchase of a
condominium unit in San Juan City and the
construction of their family home in Corinthian
Hills.99
Seventh, she insisted that she could legally
reestablish her domicile of choice in the Philippines
even before she renounced her American
citizenship as long as the three determinants for a
change of domicile are complied with.100 She
reasoned out that there was no requirement that
renunciation of foreign citizenship is a prerequisite
for the acquisition of a new domicile of choice. 101
Eighth, she reiterated that the period appearing in
the residency portion of her COC for Senator was a
mistake made in good faith.102
In a Resolution103 promulgated on 11 December
2015, the COMELEC First Division ruled that
petitioner is not a natural-born citizen, that she
failed to complete the ten (10) year residency
requirement, and that she committed material
misrepresentation in her COC when she declared
therein that she has been a resident of the
Philippines for a period of ten (10) years and eleven
(11) months as of the day of the elections on 9 May
2016. The COMELEC First Division concluded that
she is not qualified for the elective position of
President of the Republic of the Philippines. The
dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the
Commission RESOLVED, as it hereby RESOLVES,
to GRANT the Petitions and cancel the Certificate
of Candidacy of MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized
Local and National Elections.
Petitioner filed a motion for reconsideration
seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the
COMELEC En Banc issued a Resolution denying
petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC,
petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of
an ex parte temporary restraining order/status quo
ante order and/or writ of preliminary injunction.
On 28 December 2015, temporary restraining
orders were issued by the Court enjoining the
COMELEC and its representatives from
implementing the assailed COMELEC Resolutions
until further orders from the Court. The Court also
ordered the consolidation of the two petitions filed
by petitioner in its Resolution of 12 January 2016.
Thereafter, oral arguments were held in these
cases.
The Court GRANTS the petition of Mary Grace
Natividad S. Poe-Llamanzares and to ANNUL and
SET ASIDE the:
1. Resolution dated 1 December 2015
rendered through its Second Division, in
SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs.
Mary Grace Natividad Sonora Poe-
Llamanzares.
2. Resolution dated 11 December 2015,
rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs.
Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007
(DC) entitled Antonio P. Contreras,
petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; and SPA No.
15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of
the Commission En Banc, upholding the 1
December 2015 Resolution of the Second
Division.
4. Resolution dated 23 December 2015 of
the Commission En Banc, upholding the 11
December 2015 Resolution of the First
Division.
The procedure and the conclusions from which the
questioned Resolutions emanated are tainted with
grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016
National Elections.
The issue before the COMELEC is whether or not
the COC of petitioner should be denied due course
or cancelled "on the exclusive ground" that she
made in the certificate a false material
representation. The exclusivity of the ground
should hedge in the discretion of the COMELEC and
restrain it from going into the issue of the
qualifications of the candidate for the position, if,
as in this case, such issue is yet undecided or
undetermined by the proper authority. The
COMELEC cannot itself, in the same cancellation
case, decide the qualification or lack thereof of the
candidate.
We rely, first of all, on the Constitution of our
Republic, particularly its provisions in Article IX, C,
Section 2:
Section 2. The Commission on Elections shall
exercise the following powers and functions:
(1) Enforce and administer all laws
and regulations relative to the
conduct of an election, plebiscite,
initiative, referendum, and recall.
(2) Exercise exclusive original
jurisdiction over all contests relating
to the elections, returns, and
qualifications of all elective
regional, provincial, and city
officials, and appellate jurisdiction
over all contests involving elective
municipal officials decided by trial
courts of general jurisdiction, or
involving elective barangay officials
decided by trial courts of limited
jurisdiction.
Decisions, final orders, or rulings of
the Commission on election
contests involving elective
municipal and barangay offices shall
be final, executory, and not
appealable.
(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.
(4) Deputize, with the concurrence
of the President, law enforcement
agencies and instrumentalities of
the Government, including the
Armed Forces of the Philippines, for
the exclusive purpose of ensuring
free, orderly, honest, peaceful, and
credible elections.
(5) Register, after sufficient
publication, political parties,
organizations, or coalitions which,
in addition to other requirements,
must present their platform or
program of government; and
accredit citizens' arms of the
Commission on Elections. Religious
denominations and sects shall not
be registered. Those which seek to
achieve their goals through violence
or unlawful means, or refuse to
uphold and adhere to this
Constitution, or which are
supported by any foreign
government shall likewise be
refused registration.
Financial contributions from foreign
governments and their agencies to
political parties, organizations,
coalitions, or candidates related to
elections constitute interference in
national affairs, and, when
accepted, shall be an additional
ground for the cancellation of their
registration with the Commission,
in addition to other penalties that
may be prescribed by law.
(6) File, upon a verified complaint,
or on its own initiative, petitions in
court for inclusion or exclusion of
voters; investigate and, where
appropriate, prosecute cases of
violations of election laws, including
acts or omissions constituting
election frauds, offenses, and
malpractices.
(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 candidacies.
(8) Recommend to the President
the removal of any officer or
employee it has deputized, or the
imposition of any other disciplinary
action, for violation or disregard of,
or disobedience to its directive,
order, or decision.
(9) Submit to the President and the
Congress a comprehensive report
on the conduct of each election,
plebiscite, initiative, referendum, or
recall.
Not any one of the enumerated powers
approximate the exactitude of the provisions of
Article VI, Section 17 of the same basic law stating
that:
The Senate and the House of
Representatives shall each have an
Electoral Tribunal which shall be the sole
judge of all contests relating to the election,
returns, and qualifications of their
respective Members. Each Electoral
Tribunal shall be composed of nine
Members, three of whom shall be Justices
of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall
be Members of the Senate or the House of
Representatives, as the case may be, who
shall be chosen on the basis of proportional
representation from the political parties
and the parties or organizations registered
under the party-list system represented
therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4
which provides that:
The Supreme Court, sitting en banc, shall
be the sole judge of all contests relating to
the election, returns, and qualifications of
the President or Vice-President, and may
promulgate its rules for the purpose.
The tribunals which have jurisdiction over the
question of the qualifications of the President, the
Vice-President, Senators and the Members of the
House of Representatives was made clear by the
Constitution. There is no such provision for
candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza
in Romualdez-Marcos v. Commission on
Elections,104 which was affirmatively cited in the En
Banc decision in Fermin v. COMELEC105 is our
guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized
proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on
February 15, 1993 so as to provide in Rule 25 § 1,
the following:
Grounds for disqualification. - Any
candidate who does not possess all
the qualifications of a candidate as
provided for by the Constitution or
by existing law or who commits any
act declared by law to be grounds
for disqualification may be
disqualified from continuing as a
candidate.
The lack of provision for declaring the ineligibility
of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation
of a cause of action which is a substantive matter
which the COMELEC, in the exercise of its rule-
making power under Art. IX, A, §6 of the
Constitution, cannot do it. It is noteworthy that the
Constitution withholds from the COMELEC even
the power to decide cases involving the right to
vote, which essentially involves an inquiry
into qualifications based on age,
residence and citizenship of voters. [Art. IX, C,
§2(3)]
The assimilation in Rule 25 of the COMELEC rules
of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention
of the law. For not only in their grounds but also in
their consequences are proceedings for
"disqualification" different from those for a
declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on
grounds specified in § 12 and §68 of the Omnibus
Election Code and in §40 of the Local Government
Code and are for the purpose of barring an
individual from becoming a candidate or from
continuing as a candidate for public office. In a
word, their purpose is to eliminate a candidate
from the race either from the start or during its
progress. "Ineligibility," on the other hand, refers
to the lack of the qualifications prescribed in the
Constitution or the statutes for holding public
office and the purpose of the proceedings for
declaration of ineligibility is to remove the
incumbent from office.
Consequently, that an individual possesses the
qualifications for a public office does not imply that
he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and
vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has
the qualifications prescribed in §2 of the Law does
not imply that he does not suffer from any of [the]
disqualifications provided in §4.
Before we get derailed by the distinction as to
grounds and the consequences of the respective
proceedings, the importance of the opinion is in its
statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be
supplied by a mere rule". Justice Mendoza lectured
in Romualdez-Marcos that:
Three reasons may be cited to explain the absence
of an authorized proceeding for
determining before election the qualifications of a
candidate.
First is the fact that unless a candidate wins and is
proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast,
whether an individual should be disqualified as a
candidate for acts constituting election
offenses (e.g., vote buying, over spending,
commission of prohibited acts) is a prejudicial
question which should be determined lest he wins
because of the very acts for which his
disqualification is being sought. That is why it is
provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he
has been voted for, the votes in his favor will not
be counted; and if for some reason he has been
voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a
candidates' eligibility, e.g., his citizenship or, as in
this case, his domicile, may take a long time to
make, extending beyond the beginning of the term
of the office. This is amply demonstrated in the
companion case (G.R. No. 120265, Agapito A.
Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the
COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character
proceedings relating to certificates of candidacy.
That is why the law makes the receipt of certificates
of candidacy a ministerial duty of the COMELEC and
its officers. The law is satisfied if candidates state in
their certificates of candidacy that they are eligible
for the position which they seek to fill, leaving the
determination of their qualifications to be made
after the election and only in the event they are
elected. Only in cases involving charges of false
representations made in certificates of candidacy is
the COMELEC given jurisdiction.
Third is the policy underlying the prohibition
against pre-proclamation cases in elections for
President, Vice President, Senators and members
of the House of Representatives. (R.A. No. 7166, §
15) The purpose is to preserve the prerogatives of
the House of Representatives Electoral Tribunal
and the other Tribunals as "sole judges" under the
Constitution of the election,
returns and qualifications of members of Congress
of the President and Vice President, as the case
may be.106
To be sure, the authoritativeness of
the Romualdez pronouncements as reiterated
in Fermin, led to the amendment through
COMELEC Resolution No. 9523, on 25 September
2012 of its Rule 25. This, the 15 February1993
version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who
does not possess all the qualifications of a
candidate as provided for by the Constitution or by
existing law or who commits any act declared by
law to be grounds for disqualification may be
disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest
in which he is a party, is declared by final decision
of a competent court, guilty of, or found by the
Commission to be suffering from any
disqualification provided by law or the
Constitution.
A Petition to Disqualify a Candidate invoking
grounds for a Petition to Deny to or Cancel a
Certificate of Candidacy or Petition to Declare a
Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily
dismissed.
Clearly, the amendment done in 2012 is an
acceptance of the reality of absence of an
authorized proceeding for determining before
election the qualifications of candidate. Such that,
as presently required, to disqualify a candidate
there must be a declaration by a final judgment of
a competent court that the candidate sought to be
disqualified "is guilty of or found by the
Commission to be suffering from any
disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is
concerned, Rule 25 and Rule 23 are flipsides of one
to the other. Both do not allow, are not
authorizations, are not vestment of jurisdiction, for
the COMELEC to determine the qualification of a
candidate. The facts of qualification must
beforehand be established in a prior proceeding
before an authority properly vested with
jurisdiction. The prior determination of
qualification may be by statute, by executive order
or by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior
finding that he or she is suffering from a
disqualification "provided by law or the
Constitution," neither can the certificate of
candidacy be cancelled or denied due course on
grounds of false representations regarding his or
her qualifications, without a prior authoritative
finding that he or she is not qualified, such prior
authority being the necessary measure by which
the falsity of the representation can be found. The
only exception that can be conceded are self-
evident facts of unquestioned or unquestionable
veracity and judicial confessions. Such are, anyway,
bases equivalent to prior decisions against which
the falsity of representation can be determined.
The need for a predicate finding or final
pronouncement in a proceeding under Rule 23 that
deals with, as in this case, alleged false
representations regarding the candidate's
citizenship and residence, forced the COMELEC to
rule essentially that since foundlings 108 are not
mentioned in the enumeration of citizens under
the 1935 Constitution,109 they then cannot be
citizens. As the COMELEC stated in oral arguments,
when petitioner admitted that she is a foundling,
she said it all. This borders on bigotry. Oddly, in an
effort at tolerance, the COMELEC, after saying that
it cannot rule that herein petitioner possesses
blood relationship with a Filipino citizen when "it is
certain that such relationship is indemonstrable,"
proceeded to say that "she now has the burden to
present evidence to prove her natural filiation with
a Filipino parent."
The fact is that petitioner's blood relationship with
a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions
regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of
the Philippines has a whole chapter on Paternity
and Filiation.110 That said, there is more than
sufficient evider1ce that petitioner has Filipino
parents and is therefore a natural-born Filipino.
Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a
Filipino citizen. The private respondents should
have shown that both of petitioner's parents were
aliens. Her admission that she is a foundling did not
shift the burden to her because such status did not
exclude the possibility that her parents were
Filipinos, especially as in this case where there is a
high probability, if not certainty, that her parents
are Filipinos.
The factual issue is not who the parents of
petitioner are, as their identities are unknown, but
whether such parents are Filipinos. Under Section
4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence
must have such a relation to the fact in issue as to
induce belief in its existence or no-existence.
Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to
establish the probability of improbability of the fact
in issue.
The Solicitor General offered official statistics from
the Philippine Statistics Authority (PSA)111 that
from 1965 to 1975, the total number of foreigners
born in the Philippines was 15,986 while the total
number of Filipinos born in the country was
10,558,278. The statistical probability that any
child born in the Philippines in that decade is
natural-born Filipino was 99.83%. For her part,
petitioner presented census statistics for Iloilo
Province for 1960 and 1970, also from the PSA. In
1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the
population were Filipinos. In 1970, the figures were
1,162,669 Filipinos and 5,304 foreigners,
or 99.55%. Also presented were figures for the
child producing ages (15-49). In 1960, there were
230,528 female Filipinos as against 730 female
foreigners or 99.68%. In the same year, there were
210,349 Filipino males and 886 male aliens,
or 99.58%. In 1970, there were 270,299 Filipino
females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740
Filipino males as against only 1,165 male aliens
or 99.53%. COMELEC did not dispute these figures.
Notably, Commissioner Arthur Lim admitted,
during the oral arguments, that at the time
petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of
petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church
in Iloilo City.1âwphi1 She also has typical Filipino
features: height, flat nasal bridge, straight black
hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have
happened according to the ordinary course of
nature and the ordinary habits of life. 113 All of the
foregoing evidence, that a person with typical
Filipino features is abandoned in Catholic Church in
a municipality where the population of the
Philippines is overwhelmingly Filipinos such that
there would be more than a 99% chance that a
child born in the province would be a Filipino,
would indicate more than ample probability if not
statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on
which it is based are admissible under Rule 128,
Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not
the virtually impossible, as the norm. In the words
of the Solicitor General:
Second. It is contrary to common sense because
foreigners do not come to the Philippines so they
can get pregnant and leave their newborn babies
behind. We do not face a situation where the
probability is such that every foundling would have
a 50% chance of being a Filipino and a 50% chance
of being a foreigner. We need to frame our
questions properly. What are the chances that the
parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that
the parents of anyone born in the Philippines
would be Filipinos? 99.9%.
According to the Philippine Statistics Authority,
from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in
the Philippines of foreign parents. Thus, for that
sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means
that the statistical probability that any child born in
the Philippines would be a natural born Filipino is
99.93%.
From 1965 to 1975, the total number of foreigners
born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-
Filipino children is 1:661. This means that the
statistical probability that any child born in the
Philippines on that decade would be a natural born
Filipino is 99.83%.
We can invite statisticians and social
anthropologists to crunch the numbers for us, but
I am confident that the statistical probability that a
child born in the Philippines would be a natural
born Filipino will not be affected by whether or not
the parents are known. If at all, the likelihood that
a foundling would have a Filipino parent might
even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do
not imagine foreigners abandoning their children
here in the Philippines thinking those infants would
have better economic opportunities or believing
that this country is a tropical paradise suitable for
raising abandoned children. I certainly doubt
whether a foreign couple has ever considered their
child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and
render them stateless just because there may be a
theoretical chance that one among the thousands
of these foundlings might be the child of not just
one, but two, foreigners is downright
discriminatory, irrational, and unjust. It just doesn't
make any sense. Given the statistical certainty -
99.9% - that any child born in the Philippines would
be a natural born citizen, a decision denying
foundlings such status is effectively a denial of their
birthright. There is no reason why this Honorable
Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an
entire class of human beings. Your Honor,
constitutional interpretation and the use of
common sense are not separate disciplines.
As a matter of law, foundlings are as a class,
natural-born citizens. While the 1935
Constitution's enumeration is silent as to
foundlings, there is no restrictive language which
would definitely exclude foundlings either.
Because of silence and ambiguity in the
enumeration with respect to foundlings, there is a
need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:
The ascertainment of that intent is but in
keeping with the fundamental principle of
constitutional construction that the intent
of the framers of the organic law and of the
people adopting it should be given effect.
The primary task in constitutional
construction is to ascertain and thereafter
assure the realization of the purpose of the
framers and of the people in the adoption
of the Constitution. It may also be safely
assumed that the people in ratifying the
Constitution were guided mainly by the
explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor
General, the deliberations of the 1934
Constitutional Convention show that the framers
intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after
subsection 2, the following is inserted: "The natural
children of a foreign father and a Filipino mother
not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the
proponent of the amendment. The gentleman
refers to natural children or to any kind of
illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes
natural children of unknown parentage, natural or
illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown
parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all
children of unknown parentage born in Spanish
territory are considered Spaniards, because the
presumption is that a child of unknown parentage
is the son of a Spaniard. This may be applied in the
Philippines in that a child of unknown parentage
born in the Philippines is deemed to be Filipino, and
there is no need ...
Sr. Rafols:
There is a need, because we are relating the
conditions that are [required] to be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore,
there is no [more] need for amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a
Filipino mother recognized by one, or the children
of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in
the Philippines of unknown parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this
[person] does not recognize the child, is not
unknown.
President:
Does the gentleman accept the amendment or
not?
Sr. Rafols:
I do not accept the amendment because the
amendment would exclude the children of a
Filipina with a foreigner who does not recognize
the child. Their parentage is not unknown and I
think those of overseas Filipino mother and father
[whom the latter] does not recognize, should also
be considered as Filipinos.
President:
The question in order is the amendment to the
amendment from the Gentleman from Cebu, Mr.
Briones.
Sr. Busion:
Mr. President, don't you think it would be better to
leave this matter in the hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these
cases are few and far in between, that the
constitution need [not] refer to them. By
international law the principle that children or
people born in a country of unknown parents are
citizens in this nation is recognized, and it is not
necessary to include a provision on the subject
exhaustively.116
Though the Rafols amendment was not carried out,
it was not because there was any objection to the
notion that persons of "unknown parentage" are
not citizens but only because their number was not
enough to merit specific mention. Such was the
account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
During the debates on this provision,
Delegate Rafols presented an amendment
to include as Filipino citizens the
illegitimate children with a foreign father of
a mother who was a citizen of the
Philippines, and also foundlings; but this
amendment was defeated primarily
because the Convention believed that the
cases, being too few to warrant the
inclusion of a provision in the Constitution
to apply to them, should be governed by
statutory legislation. Moreover, it was
believed that the rules of international law
were already clear to the effect that
illegitimate children followed the
citizenship of the mother, and
that foundlings followed the nationality of
the place where they were found,
thereby making unnecessary the
inclusion in the Constitution of the
proposed amendment.
This explanation was likewise the position of the
Solicitor General during the 16 February 2016 Oral
Arguments:
We all know that the Rafols proposal was rejected.
But note that what was declined was the proposal
for a textual and explicit recognition of foundlings
as Filipinos. And so, the way to explain the
constitutional silence is by saying that it was the
view of Montinola and Roxas which prevailed that
there is no more need to expressly declare
foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's
or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on
assumptions that are imperfect or even wrong.
They can even overturn existing rules. This is basic.
What matters here is that Montinola and Roxas
were able to convince their colleagues in the
convention that there is no more need to expressly
declare foundlings as Filipinos because they are
already impliedly so recognized.
In other words, the constitutional silence is fully
explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to
recognize foundlings, as a class, as Filipinos under
Art. IV, Section 1 (3) of the 1935 Constitution. This
inclusive policy is carried over into the 1973 and
1987 Constitution. It is appropriate to invoke a
famous scholar as he was paraphrased by Chief
Justice Fernando: the constitution is not silently
silent, it is silently vocal. 118
The Solicitor General makes the further point that
the framers "worked to create a just and humane
society," that "they were reasonable patriots and
that it would be unfair to impute upon them a
discriminatory intent against foundlings." He
exhorts that, given the grave implications of the
argument that foundlings are not natural-born
Filipinos, the Court must search the records of the
1935, 1973 and 1987 Constitutions "for an express
intention to deny foundlings the status of Filipinos.
The burden is on those who wish to use the
constitution to discriminate against foundlings to
show that the constitution really intended to take
this path to the dark side and inflict this across the
board marginalization."
We find no such intent or language permitting
discrimination against foundlings. On the contrary,
all three Constitutions guarantee the basic right to
equal protection of the laws. All exhort the State to
render social justice. Of special consideration are
several provisions in the present charter: Article II,
Section 11 which provides that the "State values
the dignity of every human person and guarantees
full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority
to the enactment of measures that protect and
enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities x x x" and Article XV, Section 3 which
requires the State to defend the "right of children
to assistance, including proper care and nutrition,
and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these
provisions contradict an intent to discriminate
against foundlings on account of their unfortunate
status.
Domestic laws on adoption also support the
principle that foundlings are Filipinos. These laws
do not provide that adoption confers citizenship
upon the adoptee. Rather, the adoptee must be a
Filipino in the first place to be adopted. The most
basic of such laws is Article 15 of the Civil Code
which provides that "[l]aws relating to family rights,
duties, status, conditions, legal capacity of persons
are binding on citizens of the Philippines even
though living abroad." Adoption deals with status,
and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino. In Ellis
and Ellis v. Republic,119 a child left by an
unidentified mother was sought to be adopted by
aliens. This Court said:
In this connection, it should be noted that this is a
proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject
matter of the case and over the parties, but also
over the res, which is the personal status of Baby
Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that
jurisdiction over the status of a natural person is
determined by the latter's nationality. Pursuant to
this theory, we have jurisdiction over the status of
Baby Rose, she being a citizen of the Philippines,
but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043
entitled "An Act Establishing the Rules to Govern
the Inter-Country Adoption of Filipino Children and
For Other Purposes" (otherwise known as the
"Inter-Country Adoption Act of 1995"), R.A. No.
8552, entitled "An Act Establishing the Rules and
Policies on the Adoption of Filipino Children and
For Other Purposes" (otherwise known as the
Domestic Adoption Act of 1998) and this Court's
A.M. No. 02-6-02-SC or the "Rule on Adoption," all
expressly refer to "Filipino children" and include
foundlings as among Filipino children who may be
adopted.
It has been argued that the process to determine
that the child is a foundling leading to the issuance
of a foundling certificate under these laws and the
issuance of said certificate are acts to acquire or
perfect Philippine citizenship which make the
foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-
born citizens are those who are citizens of the
Philippines from birth without having to perform
any act to acquire or perfect their Philippine
citizenship." In the first place, "having to perform
an act" means that the act must be personally done
by the citizen. In this instance, the determination
of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the
process is the determination of the whereabouts of
the parents, not the citizenship of the child. Lastly,
the process is certainly not analogous to
naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by
one born of an alien father and a Filipino mother
under the 1935 Constitution, which is an act to
perfect it.
In this instance, such issue is moot because there is
no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her
favor.122 The Decree of Adoption issued on 13 May
1974, which approved petitioner's adoption by
Jesusa Sonora Poe and Ronald Allan Kelley Poe,
expressly refers to Emiliano and his wife, Rosario
Militar, as her "foundling parents," hence
effectively affirming petitioner's status as a
foundling.123
Foundlings are likewise citizens under international
law. Under the 1987 Constitution, an international
law can become part of the sphere of domestic law
either by transformation or incorporation. The
transformation method requires that an
international law be transformed into a domestic
law through a constitutional mechanism such as
local legislation.124 On the other hand, generally
accepted principles of international law, by virtue
of the incorporation clause of the Constitution,
form part of the laws of the land even if they do not
derive from treaty obligations. Generally accepted
principles of international law include international
custom as evidence of a general practice accepted
as law, and general principles of law recognized by
civilized nations.125 International customary rules
are accepted as binding as a result from the
combination of two elements: the established,
widespread, and consistent practice on the part of
States; and a psychological element known as
the opinionjuris sive necessitates (opinion as to law
or necessity). Implicit in the latter element is a
belief that the practice in question is rendered
obligatory by the existence of a rule of law
requiring it.126 "General principles of law
recognized by civilized nations" are principles
"established by a process of reasoning" or judicial
logic, based on principles which are "basic to legal
systems generally,"127 such as "general principles
of equity, i.e., the general principles of fairness and
justice," and the "general principle against
discrimination" which is embodied in the
"Universal Declaration of Human Rights, the
International Covenant on Economic, Social and
Cultural Rights, the International Convention on
the Elimination of All Forms of Racial
Discrimination, the Convention Against
Discrimination in Education, the Convention (No.
111) Concerning Discrimination in Respect of
Employment and Occupation."128 These are the
same core principles which underlie the Philippine
Constitution itself, as embodied in the due process
and equal protection clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR")
has been interpreted by this Court as part of the
generally accepted principles of international law
and binding on the State.130 Article 15 thereof
states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his
nationality nor denied the right to change
his nationality.
The Philippines has also ratified the UN Convention
on the Rights of the Child (UNCRC). Article 7 of the
UNCRC imposes the following obligations on our
country:
Article 7
1. The child shall be registered immediately after
birth and shall have the right from birth to a name,
the right to acquire a nationality and as far as
possible, the right to know and be cared for by his
or her parents.
2. States Parties shall ensure the implementation
of these rights in accordance with their national
law and their obligations under the relevant
international instruments in this field, in particular
where the child would otherwise be stateless.
In 1986, the country also ratified the 1966
International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right
of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any
discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth,
the right, to such measures of protection as are
required by his status as a minor, on the part of his
family, society and the State.
2. Every child shall be registered immediately after
birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and
ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the
application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A.
No. 9139, both of which require the applicant to be
at least eighteen (18) years old.
The principles found in two conventions, while yet
unratified by the Philippines, are generally
accepted principles of international law. The first is
Article 14 of the 1930 Hague Convention on Certain
Questions Relating to the Conflict of Nationality
Laws under which a foundling is presumed to have
the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have
the nationality of the country of birth. If the child's
parentage is established, its nationality shall be
determined by the rules applicable in cases where
the parentage is known.
A foundling is, until the contrary is proved,
presumed to have been born on the territory of the
State in which it was found. (Underlining supplied)
The second is the principle that a foundling
is presumed born of citizens of the country where
he is found, contained in Article 2 of the 1961
United Nations Convention on the Reduction of
Statelessness:
Article 2
A foundling found in the territory of a Contracting
State shall, in the absence of proof to the contrary,
be considered to have been born within the
territory of parents possessing the nationality of
that State.
That the Philippines is not a party to the 1930
Hague Convention nor to the 1961 Convention on
the Reduction of Statelessness does not mean that
their principles are not binding. While the
Philippines is not a party to the 1930 Hague
Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1)
ofwhich131 effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United
Nations Convention on the Reduction of
Statelessness" merely "gives effect" to Article 15(1)
of the UDHR.132 In Razon v. Tagitis, 133 this Court
noted that the Philippines had not signed or
ratified the "International Convention for the
Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription
against enforced disappearances in the said
convention was nonetheless binding as a
"generally accepted principle of international
law." Razon v. Tagitis is likewise notable for
declaring the ban as a generally accepted principle
of international law although the convention had
been ratified by only sixteen states and had not
even come into force and which needed the
ratification of a minimum of twenty states.
Additionally, as petitioner points out, the Court was
content with the practice of international and
regional state organs, regional state practice in
Latin America, and State Practice in the United
States.
Another case where the number of ratifying
countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either
ratified or acceded to"135 the 1966 "Convention on
the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters" when
the case was decided in 2005. The Court also
pointed out that that nine member countries of the
European Common Market had acceded to the
Judgments Convention. The Court also cited U.S.
laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen
countries were considered and yet, there was
pronouncement that recognition of foreign
judgments was widespread practice.
Our approach in Razon and Mijares effectively
takes into account the fact that "generally
accepted principles of international law" are based
not only on international custom, but also on
"general principles of law recognized by civilized
nations," as the phrase is understood in Article 38.1
paragraph (c) of the ICJ Statute. Justice, fairness,
equity and the policy against discrimination, which
are fundamental principles underlying the Bill of
Rights and which are "basic to legal systems
generally,"136 support the notion that the right
against enforced disappearances and the
recognition of foreign judgments, were correctly
considered as "generally accepted principles of
international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty
countries in Asia, North and South America, and
Europe have passed legislation recognizing
foundlings as its citizen. Forty-two (42) of those
countries follow the jus sanguinis regime. Of the
sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are
not signatories to the Convention. Also, the Chief
Justice, at the 2 February 2016 Oral Arguments
pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the
practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to
presume foundlings as having been born of
nationals of the country in which the foundling is
found.
Current legislation reveals the adherence of the
Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A.
No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them,
foundlings are among the Filipino children who
could be adopted. Likewise, it has been pointed
that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This
shows that even the executive department, acting
through the DFA, considers foundlings as Philippine
citizens.
Adopting these legal principles from the 1930
Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and
consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born
citizenship of foundlings stems from the
presumption that their parents are nationals of the
Philippines. As the empirical data provided by the
PSA show, that presumption is at more than 99%
and is a virtual certainty.
In sum, all of the international law conventions and
instruments on the matter of nationality of
foundlings were designed to address the plight of a
defenseless class which suffers from a misfortune
not of their own making. We cannot be restrictive
as to their application if we are a country which
calls itself civilized and a member of the
community of nations. The Solicitor General's
warning in his opening statement is relevant:
.... the total effect of those documents is to signify
to this Honorable Court that those treaties and
conventions were drafted because the world
community is concerned that the situation of
foundlings renders them legally invisible. It would
be tragically ironic if this Honorable Court ended up
using the international instruments which seek to
protect and uplift foundlings a tool to deny them
political status or to accord them second-class
citizenship.138
The COMELEC also ruled139 that petitioner's
repatriation in July 2006 under the provisions of
R.A. No. 9225 did not result in the reacquisition of
natural-born citizenship. The COMELEC reasoned
that since the applicant must perform an act, what
is reacquired is not "natural-born" citizenship but
only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards
consistent jurisprudence on the matter of
repatriation statutes in general and of R.A. No.
9225 in particular.
In the seminal case of Bengson Ill v.
HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of
the original nationality. This means that a
naturalized Filipino who lost his citizenship will be
restored to his prior status as a naturalized Filipino
citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine
citizenship, he will be restored to his former status
as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been
described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we
described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x
x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of
Appeals,143 where we said that "[t]he repatriation
of the former Filipino will allow him to recover his
natural-born citizenship. Parreno v. Commission on
Audit144 is categorical that "if petitioner reacquires
his Filipino citizenship (under R.A. No. 9225), he will
... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in
the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and
remain uninterrupted and continuous from birth."
R.A. No. 9225 was obviously passed in line with
Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw
it fit to decree that natural-born citizenship may be
reacquired even if it had been once lost. It is not for
the COMELEC to disagree with the Congress'
determination.
More importantly, COMELEC's position that
natural-born status must be continuous was
already rejected in Bengson III v. HRET145 where
the phrase "from birth" was clarified to mean at the
time of birth: "A person who at the time of his birth,
is a citizen of a particular country, is a natural-born
citizen thereof." Neither is "repatriation" an act to
"acquire or perfect" one's citizenship. In Bengson III
v. HRET, this Court pointed out that there are only
two types of citizens under the 1987 Constitution:
natural-born citizen and naturalized, and that there
is no third category for repatriated citizens:
It is apparent from the enumeration of who are
citizens under the present Constitution that there
are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a
naturalized Filipino, ie., did not have to undergo
the process of naturalization to obtain Philippine
citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of
a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it.
The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized
depending on the reasons for the loss of their
citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go
through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-
born Filipino. As such, he possessed all the
necessary qualifications to be elected as member
of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent.
That is reserved to this Court. And while we may
always revisit a doctrine, a new rule reversing
standing doctrine cannot be retroactively applied.
In Morales v. Court of Appeals and Jejomar
Erwin S. Binay, Jr.,147 where we decreed reversed
the condonation doctrine, we cautioned that it
"should be prospective in application for the
reason that judicial decisions applying or
interpreting the laws of the Constitution, until
reversed, shall form part of the legal system of the
Philippines." This Court also said that "while the
future may ultimately uncover a doctrine's error, it
should be, as a general rule, recognized as good
law prior to its abandonment. Consequently, the
people's reliance thereupon should be
respected."148
Lastly, it was repeatedly pointed out during the oral
arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her
application for repatriation under R.A. No. 9225
the names of her adoptive parents, and this misled
the BI to presume that she was a natural-born
Filipino. It has been contended that the data
required were the names of her biological parents
which are precisely unknown.
This position disregards one important fact -
petitioner was legally adopted. One of the effects
of adoption is "to sever all legal ties between the
biological parents and the adoptee, except when
the biological parent is the spouse of the
adoptee."149 Under R.A. No. 8552, petitioner was
also entitled to an amended birth certificate
"attesting to the fact that the adoptee is the child
of the adopter(s)" and which certificate "shall not
bear any notation that it is an amended
issue."150 That law also requires that "[a]ll records,
books, and papers relating to the adoption cases in
the files of the court, the Department [of Social
Welfare and Development], or any other agency or
institution participating in the adoption
proceedings shall be kept strictly
151
confidential." The law therefore allows
petitioner to state that her adoptive parents were
her birth parents as that was what would be stated
in her birth certificate anyway. And given the policy
of strict confidentiality of adoption records,
petitioner was not obligated to disclose that she
was an adoptee.
Clearly, to avoid a direct ruling on the qualifications
of petitioner, which it cannot make in the same
case for cancellation of COC, it resorted to
opinionatedness which is,
moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse
of discretion.
On Residence
The tainted process was repeated in disposing of
the issue of whether or not petitioner committed
false material representation when she stated in
her COC that she has before and until 9 May 2016
been a resident of the Philippines for ten (10) years
and eleven (11) months.
Petitioner's claim that she will have been a resident
for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.
The Constitution requires presidential candidates
to have ten (10) years' residence in the Philippines
before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016,
petitioner must have been a resident of the
Philippines prior to 9 May 2016 for ten (10) years.
In answer to the requested information of "Period
of Residence in the Philippines up to the day before
May 09, 2016," she put in "10 years 11 months"
which according to her pleadings in these cases
corresponds to a beginning date of 25 May 2005
when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991,
she lost her original domicile, which is the
Philippines. There are three requisites to acquire a
new domicile: 1. Residence or bodily presence in a
new locality; 2. an intention to remain there; and
3. an intention to abandon the old domicile. 152 To
successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change
of domicile; a bona fide intention of abandoning
the former place of residence and establishing a
new one and definite acts which correspond with
the purpose. In other words, there must basically
be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period
of time; the change of residence must be
voluntary; and the residence at the place chosen
for the new domicile must be actual. 153
Petitioner presented voluminous evidence
showing that she and her family abandoned their
U.S. domicile and relocated to the Philippines for
good. These evidence include petitioner's former
U.S. passport showing her arrival on 24 May 2005
and her return to the Philippines every time she
travelled abroad; e-mail correspondences starting
in March 2005 to September 2006 with a freight
company to arrange for the shipment of their
household items weighing about 28,000 pounds to
the Philippines; e-mail with the Philippine Bureau
of Animal Industry inquiring how to ship their dog
to the Philippines; school records of her children
showing enrollment in Philippine schools starting
June 2005 and for succeeding years; tax
identification card for petitioner issued on July
2005; titles for condominium and parking slot
issued in February 2006 and their corresponding
tax declarations issued in April 2006; receipts dated
23 February 2005 from the Salvation Army in the
U.S. acknowledging donation of items from
petitioner's family; March 2006 e-mail to the U.S.
Postal Service confirming request for change of
address; final statement from the First American
Title Insurance Company showing sale of their U.S.
home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy
where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from
Jesusa Sonora Poe (attesting to the return of
petitioner on 24 May 2005 and that she and her
family stayed with affiant until the condominium
was purchased); and Affidavit from petitioner's
husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and
that he stayed behind in the U.S. only to finish
some work and to sell the family home).
The foregoing evidence were undisputed and the
facts were even listed by the COMELEC, particularly
in its Resolution in the Tatad, Contreras and Valdez
cases.
However, the COMELEC refused to consider that
petitioner's domicile had been timely changed as
of 24 May 2005. At the oral arguments, COMELEC
Commissioner Arthur Lim conceded the presence
of the first two requisites, namely, physical
presence and animus manendi, but maintained
there was no animus non-revertendi.154 The
COMELEC disregarded the import of all the
evidence presented by petitioner on the basis of
the position that the earliest date that petitioner
could have started residence in the Philippines was
in July 2006 when her application under R.A. No.
9225 was approved by the BI. In this regard,
COMELEC relied on Coquilla v. COMELEC,155 Japzon
v. COMELEC156 and Caballero v.
157
COMELEC. During the oral arguments, the
private respondents also added Reyes v.
COMELEC.158 Respondents contend that these
cases decree that the stay of an alien former
Filipino cannot be counted until he/she obtains a
permanent resident visa or reacquires Philippine
citizenship, a visa-free entry under
a balikbayan stamp being insufficient. Since
petitioner was still an American (without any
resident visa) until her reacquisition of citizenship
under R.A. No. 9225, her stay from 24 May 2005 to
7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these
four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence
presented was a community tax certificate secured
by the candidate and his declaration that he would
be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who
wanted to count residence prior to his
reacquisition of Philippine citizenship. With the
Court decreeing that residence is distinct from
citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to
establish residence. In Caballero v.
161
COMELEC, the candidate admitted that his
place of work was abroad and that he only visited
during his frequent vacations. In Reyes v.
COMELEC,162 the candidate was found to be an
American citizen who had not even reacquired
Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was
disqualified on the citizenship issue. On residence,
the only proof she offered was a seven-month stint
as provincial officer. The COMELEC, quoted with
approval by this Court, said that "such fact alone is
not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on
residence in the four cases cited by the
respondents, the Court had no choice but to hold
that residence could be counted only from
acquisition of a permanent resident visa or from
reacquisition of Philippine citizenship. In contrast,
the evidence of petitioner is overwhelming and
taken together leads to no other conclusion that
she decided to permanently abandon her U.S.
residence (selling the house, taking the children
from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the
abandonment of their address in the U.S., donating
excess items to the Salvation Army, her husband
resigning from U.S. employment right after selling
the U.S. house) and permanently relocate to the
Philippines and actually re-established her
residence here on 24 May 2005 (securing T.I.N,
enrolling her children in Philippine schools, buying
property here, constructing a residence here,
returning to the Philippines after all trips abroad,
her husband getting employed here). Indeed,
coupled with her eventual application to reacquire
Philippine citizenship and her family's actual
continuous stay in the Philippines over the years, it
is clear that when petitioner returned on 24 May
2005 it was for good.
In this connection, the COMELEC also took it
against petitioner that she had entered the
Philippines visa-free as a balikbayan. A closer look
at R.A. No. 6768 as amended, otherwise known as
the "An Act Instituting a Balikbayan Program,"
shows that there is no overriding intent to
treat balikbayans as temporary visitors who must
leave after one year. Included in the law is a former
Filipino who has been naturalized abroad and
"comes or returns to the Philippines." 163 The law
institutes a balikbayan program "providing the
opportunity to avail of the necessary training to
enable the balikbayan to become economically
self-reliant members of society upon their return
to the country"164 in line with the government's
"reintegration
program."165 Obviously, balikbayans are not
ordinary transients.
Given the law's express policy to facilitate the
return of a balikbayan and help him reintegrate
into society, it would be an unduly harsh conclusion
to say in absolute terms that the balikbayan must
leave after one year. That visa-free period is
obviously granted him to allow him to re-establish
his life and reintegrate himself into the community
before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly
what petitioner did - she reestablished life here by
enrolling her children and buying property while
awaiting the return of her husband and then
applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former
Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been
decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial
precedent that comes close to the facts of
residence of petitioner. There is no indication
in Coquilla v. COMELEC,166 and the other cases
cited by the respondents that the Court intended
to have its rulings there apply to a situation where
the facts are different. Surely, the issue of
residence has been decided particularly on the
facts-of-the case basis.
To avoid the logical conclusion pointed out by the
evidence of residence of petitioner, the COMELEC
ruled that petitioner's claim of residence of ten
(10) years and eleven (11) months by 9 May 2016
in her 2015 COC was false because she put six ( 6)
years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator.
Thus, according to the COMELEC, she started being
a Philippine resident only in November 2006. In
doing so, the COMELEC automatically assumed as
true the statement in the 2012 COC and the 2015
COC as false.
As explained by petitioner in her verified pleadings,
she misunderstood the date required in the 2013
COC as the period of residence as of the day she
submitted that COC in 2012. She said that she
reckoned residency from April-May 2006 which
was the period when the U.S. house was sold and
her husband returned to the Philippines. In that
regard, she was advised by her lawyers in 2015 that
residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood
the query in 2012 (period of residence before 13
May 2013) as inquiring about residence as of the
time she submitted the COC, is bolstered by the
change which the COMELEC itself introduced in the
2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016."
The COMELEC would not have revised the query if
it did not acknowledge that the first version was
vague.
That petitioner could have reckoned residence
from a date earlier than the sale of her U.S. house
and the return of her husband is plausible given the
evidence that she had returned a year before. Such
evidence, to repeat, would include her passport
and the school records of her children.
It was grave abuse of discretion for the COMELEC
to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in
evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a
candidate's mistake as to period of residence made
in a COC was overcome by evidence. In Romualdez-
Marcos v. COMELEC,167 the candidate mistakenly
put seven (7) months as her period of residence
where the required period was a minimum of one
year. We said that "[i]t is the fact of residence, not
a statement in a certificate of candidacy which
ought to be decisive in determining whether or not
an individual has satisfied the constitutions
residency qualification requirement." The
COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth
that she was in the Philippines from 24 May 2005.
Had the COMELEC done its duty, it would have
seen that the 2012 COC and the 2015
COC both correctly stated the pertinent period of
residency.
The COMELEC, by its own admission, disregarded
the evidence that petitioner actually and physically
returned here on 24 May 2005 not because it was
false, but only because COMELEC took the position
that domicile could be established only from
petitioner's repatriation under R.A. No. 9225 in July
2006. However, it does not take away the fact that
in reality, petitioner had returned from the U.S. and
was here to stay permanently, on 24 May 2005.
When she claimed to have been a resident for ten
(10) years and eleven (11) months, she could do so
in good faith.
For another, it could not be said that petitioner was
attempting to hide anything. As already stated, a
petition for quo warranto had been filed against
her with the SET as early as August 2015. The event
from which the COMELEC pegged the
commencement of residence, petitioner's
repatriation in July 2006 under R.A. No. 9225, was
an established fact to repeat, for purposes of her
senatorial candidacy.
Notably, on the statement of residence of six (6)
years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up
in the media on 2 June 2015 by Rep. Tobias Tiangco
of the United Nationalist Alliance. Petitioner
appears to have answered the issue immediately,
also in the press. Respondents have not disputed
petitioner's evidence on this point. From that time
therefore when Rep. Tiangco discussed it in the
media, the stated period of residence in the 2012
COC and the circumstances that surrounded the
statement were already matters of public record
and were not hidden.
Petitioner likewise proved that the 2012 COC was
also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on
1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6)
years and six ( 6) months as she misunderstood the
question and could have truthfully indicated a
longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner
accomplished her COC for President on 15 October
2015, she could not be said to have been
attempting to hide her erroneous statement in her
2012 COC for Senator which was expressly
mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not
show or even hint at an intention to hide the 2012
statement and have it covered by the 2015
representation. Petitioner, moreover, has on her
side this Court's pronouncement that:
Concededly, a candidate's disqualification to run
for public office does not necessarily constitute
material misrepresentation which is the sole
ground for denying due course to, and for the
cancellation of, a COC. Further, as already
discussed, the candidate's misrepresentation in his
COC must not only refer to a material fact
(eligibility and qualifications for elective office), but
should evince a deliberate intent to mislead,
misinform or hide a fact which would otherwise
render a candidate ineligible. It must be made with
an intention to deceive the electorate as to one's
qualifications to run for public office.168
In sum, the COMELEC, with the same posture of
infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus
manendi to the Philippines and animus non
revertedi to the United States of America. The
veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the
focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the
COMELEC said "amounts to a declaration and
therefore an admission that her residence in the
Philippines only commence sometime in
November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency
requirement for President." This conclusion, as
already shown, ignores the standing jurisprudence
that it is the fact of residence, not the statement of
the person that determines residence for purposes
of compliance with the constitutional requirement
of residency for election as President. It ignores the
easily researched matter that cases on questions of
residency have been decided favorably for the
candidate on the basis of facts of residence far less
in number, weight and substance than that
presented by petitioner.169 It ignores, above all
else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in
her COC for Senator which declaration was not
even considered by the SET as an issue against her
eligibility for Senator. When petitioner made the
declaration in her COC for Senator that she has
been a resident for a period of six (6) years and six
(6) months counted up to the 13 May 2013
Elections, she naturally had as reference the
residency requirements for election as Senator
which was satisfied by her declared years of
residence. It was uncontested during the oral
arguments before us that at the time the
declaration for Senator was made, petitioner did
not have as yet any intention to vie for the
Presidency in 2016 and that the general public was
never made aware by petitioner, by word or action,
that she would run for President in 2016.
Presidential candidacy has a length-of-residence
different from that of a senatorial candidacy. There
are facts of residence other than that which was
mentioned in the COC for Senator. Such other facts
of residence have never been proven to be false,
and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May
2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale
of their family home.
Meanwhile [petitioner] and her children lived with
her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and
Hanna in Assumption College in Makati City in
2005. Anika was enrolled in Learning Connection in
San Juan in 2007, when she was already old enough
to go to school.
In the second half of 2005, [petitioner] and her
husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her
family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's]
mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to
secure from the Office of the Civil Registrar of Iloilo
a new Certificate of Live Birth indicating
[petitioner's] new name and stating that her
parents are "Ronald Allan K. Poe" and "Jesusa L.
Sonora."
In February 2006, [petitioner] travelled briefly to
the US in order to supervise the disposal of some
of the family's remaining household
belongings.1a\^/phi1 [Petitioner] returned to the
Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband
informed the United States Postal Service of the
family's abandonment of their address in the US.
The family home in the US was sole on 27 April
2006.
In April 2006, [petitioner's] husband resigned from
his work in the US. He returned to the Philippines
on 4 May 2006 and began working for a Philippine
company in July 2006.
In early 2006, [petitioner] and her husband
acquired a vacant lot in Corinthian Hills, where they
eventually built their family home. 170
In light of all these, it was arbitrary for the
COMELEC to satisfy its intention to let the case fall
under the exclusive ground of false representation,
to consider no other date than that mentioned by
petitioner in her COC for Senator.
All put together, in the matter of the citizenship
and residence of petitioner for her candidacy as
President of the Republic, the questioned
Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave
abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The
Resolutions, to wit:
1. dated 1 December 2015 rendered through the
COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:
[T]he Certificate of Candidacy for President of the
Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent
Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.
2. dated 11 December 2015, rendered through the
COMELEC First Division, in the consolidated cases
SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent;
stating that:
WHEREFORE, premises considered, the
Commission RESOLVED, as it hereby RESOLVES, to
GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES for the elective position of
President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized
Local and National Elections.
3. dated 23 December 2015 of the COMELEC En
Banc, upholding the 1 December 2015 Resolution
of the Second Division stating that:
WHEREFORE, premises considered, the
Commission RESOLVED, as it hereby RESOLVES, to
DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES. The Resolution dated 11
December 2015 of the Commission First Division is
AFFIRMED.
4. dated 23 December 2015 of the COMELEC En
Banc, upholding the 11 December 2015 Resolution
of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner
MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a
candidate for President in the National and Local
Elections of 9 May 2016.
SO ORDERED.
[G.R. No. L-63419. December 18, 1986.]
FLORENTINA A. LOZANO, Petitioner, v. THE
HONORABLE ANTONIO M. MARTINEZ, in his
capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch XX, Manila,
and the HONORABLE JOSE B. FLAMINIANO, in his
capacity as City Fiscal of Manila, Respondents.
[G.R. Nos. L-66839-42. December 18, 1986.]
LUZVIMINDA F. LOBATON, Petitioner, v.
HONORABLE GLICERIO L. CRUZ, in his capacity as
Presiding Executive Judge, Branch V, Region IV,
Regional Trial Court, sitting at Lemery, Batangas,
THE PROVINCIAL FISCAL OF BATANGAS, and MARIA
LUISA TORDECILLA, Respondents.
[G.R. No. 71654. December 18, 1986.]
ANTONIO DATUIN and SUSAN DATUIN, Petitioners,
v. HONORABLE JUDGE ERNANI C. PANO, Regional
Trial Court, Quezon City, Branch LXXXVIII,
HONORABLE CITY FISCAL OF QUEZON
CITY, Respondents.
[G.R. Nos. 74524-25. December 18, 1986.]
OSCAR VIOLAGO, Petitioner, v. HONORABLE JUDGE
ERNANI C. PAÑO, Regional Trial Court, Quezon City,
Branch LXXXVIII, HONORABLE CITY FISCAL OF
QUEZON CITY, Respondents.
[G.R. Nos. 75122-49. December 18, 1986.]
ELINOR ABAD, Petitioner, v. THE HONORABLE
NICOLAS A. GEROCHI, JR., in his capacity as
Presiding Judge, Regional Trial Court, National
Capital Judicial Region, Branch 139, Makati and
FEDERICO L. MELOCOTTON, JR., in his capacity as
Trial Fiscal Regional Trial Court, Branch 139,
Makati, Respondents.
[G.R. Nos. 75812-13. December 18, 1986.]
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ,
spouses, Petitioners, v. HONORABLE PRESIDING
JUDGE OF BRANCH 154, now vacant but
temporarily presided by HONORABLE ASAALI S.
ISNANI, Branch 153, Court of First Instance of Pasig,
Metro Manila, Respondent.
[G.R. Nos. 725765-67. December 18, 1986.]
LUIS M. HOJAS, Petitioner, v. HON. JUDGE SENEN
PENARANDA, Presiding Judge, Regional Trial Court
of Cagayan de Oro City, Branch XX, HONORABLE
JUDGE ALFREDO LAGAMON, Presiding Judge,
Regional Trial Court of Cagayan de Oro City, Branch
XXII, HONORABLE CITY FISCAL NOLI T. CATHI, City
Fiscal of Cagayan de Oro City, Respondents.
[G.R. No. 75789. December 18, 1986.]
THE PEOPLE OF THE PHILIPPINES, Petitioner, v.
HON. DAVID G. NITAFAN, Presiding Judge, Regional
Trial Court, National Capital Judicial Region, Branch
52, Manila and THELMA
SARMIENTO, Respondents.
R.R. Nogales Law Office for petitioner in G.R. No.
63419, G.R. Nos. 74524-25, G.R. Nos. 75812-13,
G.R. Nos. 75765-67 and counsel for respondent in
G.R. No. 75789.
Pio S. Canta for petitioner in G.R. Nos. 66839-42.
Hermogenes Datuin, Jr. for petitioner in G.R. No.
71654.
Abinoja, Tabalingcos, Villalon & Associates for
petitioner in G.R. Nos. 75122-49.
The Solicitor General for respondent in G.R. No.
63419, G.R. Nos. 66839-42, G.R. No. 71654, G.R.
Nos. 74524-25, G.R. Nos. 75122-49, G.R. Nos.
75812-13, G.R. Nos. 75765-67 and counsel for
petitioner in G.R. No. 75789.
SYLLABUS
1. CONSTITUTIONAL LAW; B.P. 22 (BOUNCING
CHECK LAW); COVERS ALL KINDS OF CHECKS. —
The language of BP 22 is broad enough to cover all
kinds of checks, whether present dated or
postdated, or whether issued in payment of pre-
existing obligations or given in mutual or
simultaneous exchange for something of value.
2. CRIMINAL LAW; BOUNCING CHECKS LAW (B.P.
22); ESSENTIAL ELEMENT OF KNOWLEDGE; PRIMA
FACIE PRESUMED BY REFUSAL OF DRAWEE TO PAY
UPON PRESENTMENT. — An essential element of
the offense is "knowledge" on the part of the
maker or drawer of the check of the insufficiency
of his funds in or credit with the bank to cover the
check upon its presentment. Since this involves a
state of mind difficult to establish, the statute itself
creates a prima facie presumption of such
knowledge where payment of the check "is refused
by the drawee because of insufficient funds in or
credit with such bank when presented within
ninety (90) days from the date of the check.
3. ID.; ID.; ID.; ID.; SHALL NOT ARISE WHEN
PAYMENT IS MADE WITHIN FIVE (5) DAYS FROM
RECEIPT OF DISHONOR. — To mitigate the
harshness of the law in its application, the statute
provides that such presumption shall not arise if
within five (5) banking days from receipt of the
notice of dishonor, the maker or drawer makes
arrangements for payment of the check by the
bank or pays the holder the amount of the check.
4. ID.; ID.; DISHONOR OF CHECK BY DRAWEE BANK;
PRIMA FACIE PROOF OF MAKING OR ISSUANCE OF
CHECK AND DUE PRESENTMENT THEREOF. —
Another provision of the statute, also in the nature
of a rule of evidence, provides that the
introduction in evidence of the unpaid and
dishonored check with the drawee bank’s refusal
to pay "stamped or written thereon or attached
thereto, giving the reason therefore, shall
constitute prima facie proof of "the making or
issuance of said check, and the due presentment to
the drawee for payment and the dishonor thereof
. . . for the reason written, stamped or attached by
the drawer on such dishonored check." The
presumptions being merely prima facie, it is open
to the accused of course to present proof to the
contrary to overcome the said presumptions.
5. ID.; ID.; DISTINGUISHED FROM ARTICLE 315,
REVISED PENAL CODE. — Article 315 of the Revised
Penal Code defining the crime of estafa reads as
follows: "Article 315. Swindling (estafa). - Any
person who shall defraud another by any of the
means mentioned herein below shall be punished
by . . . 2. By means of any of the following false
pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions,
or by means of other similar deceits; . . . (d) By
postdating a check, or issuing a check in payment
of an obligation the offender knowing that at the
time he had no funds in the bank, or the funds
deposited by him were not sufficient to cover the
amount of the check without informing the payee
of such circumstances." The scope of paragraph 2
(d), however, was deemed to exclude checks
issued in payment of pre-existing obligations. The
rationale of this interpretation is that in estafa, the
deceit causing the defraudation must be prior to or
simultaneous with the commission of the fraud. In
issuing a check as payment for a pre-existing debt,
the drawer does not derive any material benefit in
return or as consideration for its issuance. On the
part of the payee, he had already parted with his
money or property before the check is issued to
him, hence, he is not defrauded by means of any
"prior" or "simultaneous" deceit perpetrated on
him, by the drawer of the check.
6. ID.; ARTICLE 315, REVISED PENAL CODE AS
AMENDED BY R.A. 4885; PAYMENT OF PRE-
EXISTING OBLIGATIONS NOT COVERED. — Article
315, as amended by Republic Act 4885, does not
cover checks issued in payment of pre-existing
obligations, again relying on the concept
underlying the crime of estafa through false
pretense or deceit - which is, that the deceit or
false pretense must be prior to or simultaneous
with the commission of the fraud.
7. ID.; BATASANG PAMBANSA 22 (BOUNCING
CHECK LAW;) THRUST OF LAW; PUNISHES ACT OF
MAKING OR ISSUING WORTHLESS CHECK AS AN
OFFENSE AGAINST PUBLIC ORDER. — The
gravamen of the offense punished by B.P. 22 is the
act of making and issuing a worthless check or a
check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of
sanctions, the making of worthless checks and
putting them is circulation. Because of its
deleterious effects on the public interest, the
practice is proscribed by the law. The law punishes
the act not as an offense against property, but an
offense against public order.
8. CONSTITUTIONAL LAW; BATASANG PAMBANSA;
MAY PRESCRIBE CRIMINAL PUNISHMENT FOR ACTS
INIMICAL TO PUBLIC WELFARE; MALUM
PROHIBITUM. — It may be constitutionally
impermissible for the legislature to penalize a
person for non-payment of a debt excontractu. But
certainly it is within the prerogative of the
lawmaking body to proscribe certain acts deemed
pernicious and inimical to public welfare. Acts mala
in se are not the only facts which the law can
punish. An act may not be considered by society as
inherently wrong, hence not malum in se, but
because of the harm that it inflicts on the
community, it can be outlawed and criminally
punished as malum prohibitum. The state can do
this in the exercise of its police power.
9. ID.; ID.; POLICE POWER; BATASANG PAMBANSA
22; VALID EXERCISE THEREOF; NOT REPUGNANT
TO CONSTITUTIONAL INHIBITION AGAINST
IMPRISONMENT FOR DEBT. — The police power of
the state has been described as "the most
essential, insistent and illimitable of powers" which
enables it to prohibit all things hurtful to the
comfort, safety and welfare of society. It is power
not emanating from or conferred by the
constitution, but inherent in the state, plenary,
"suitably vague and far from precisely defined,
rooted in the conception that man in organizing
the state and imposing upon the government
limitations to safeguard constitutional rights did
not intend thereby to enable individual citizens or
group of citizens to obstruct unreason able the
enactment of such salutary measures to ensure
communal peace, safety, good order and welfare."
The enactment of B.P. 22 is a declaration by the
legislature that, as a matter of public policy, the
making and issuance of a worthless check is
deemed a public nuisance to be abated by the
imposition of penal sanctions. The effect of the
issuance of a worthless checks transcends the
private interests of the parties directly involved in
the transaction and touches the interests of the
community at large. The mischief it creates is not
only a wrong to the payee or holder, but also an
injury to the public. In sum, we find the enactment
of B.P. 22 a valid exercise of the police power and
is not repugnant to the constitutional inhibition
against imprisonment for debt.
10. ID.; B.P. 22; FREEDOM OF CONTRACT NOT
IMPAIRED CHECKS NOT CATEGORIZED AS
CONTRACTS. — We find not valid ground to sustain
the contention that B.P. 22 impairs freedom of
contract. The freedom of contract which is
constitutionally protected is freedom to enter into
"lawful" contracts. Contracts which contravene
public policy are not lawful. We must bear in mind
that checks can not be categorized as mere
contracts. It is a commercial instrument which, in
this modern day and age, has become a convenient
substitute for money; it form part of the banking
system and therefore not entirely free from the
regulatory power of the state.
11. ID.; BILL OF RIGHTS; EQUAL PROTECTION OF
LAW DOES NOT PRECLUDE CLASSIFICATION OF
INDIVIDUALS; CASE AT BAR. — Neither do we find
substance in the claim that the statute in question
denies equal protection of the laws or is
discriminatory, since it penalizes the drawer of the
check, but not the payee. It is contended that the
payee is just as responsible for the crime as the
drawer of the check, since without the
indispensable participation of the payee by his
acceptance of the check there would be no crime.
This argument is tantamount to saying that, to give
equal protection, the law should punish both the
swindler and the swindled. The petitioners’
posture ignores the well-accepted meaning of the
clause "equal protection of the laws." The clause
does not preclude classification of individuals, who
may be accorded different treatment under the
law as long as the classification is not unreasonable
or arbitrary.
DECISION
YAP, J.:
The constitutionality of Batas Pambansa Bilang 22
(BP 22 for short), popularly known as the Bouncing
Check Law, which was approved on April 3, 1979, is
the sole issue presented by these petitions for
decision. The question is definitely one of first
impression in our jurisdiction.
These petitions arose from cases involving
prosecution of offenses under the statute. The
defendants in those cases moved seasonably to
quash the informations on the ground that the acts
charged did not constitute an offense, the statute
being unconstitutional. The motions were denied
by the respondent trial courts, except in one case,
which is the subject of G.R. No. 75789, wherein the
trial court declared the law unconstitutional and
dismissed the case. The parties adversely affected
have come to us for relief.
As a threshold issue the former Solicitor General, in
his comment on the petitions, maintained the
posture that it was premature for the accused to
elevate to this Court the orders denying their
motions to quash, these orders being
interlocutory. While this is correct as a general rule,
we have in justifiable cases intervened to review
the lower court’s denial of a motion to quash. 1 In
view of the importance of the issue involved here,
there is no doubt in our mind that the instant
petitions should be entertained and the
constitutional challenge to BP 22 resolved
promptly, one way or the other, in order to put to
rest the doubts and uncertainty that exist in legal
and judicial circles and the general public which
have unnecessarily caused a delay in the
disposition of cases involving the enforcement of
the statute.
For the purpose of resolving the constitutional
issue presented here, we do not find it necessary
to delve into the specifics of the informations
involved in the cases which are the subject of the
petitions before us. 2 The language of BP 22 is
broad enough to cover all kinds of checks, whether
present dated or postdated, or whether issued in
payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of
value.
I to pay "stamped or written thereon or attached
BP 22 punishes a person "who makes or draws and
issues any check on account or for value, knowing
at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the
payment of said check in full upon presentment,
which check is subsequently dishonored by the
drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason
had not the drawer, without any valid reason,
ordered the bank to stop payment." The penalty
prescribed for the offense is imprisonment of not
less than 30 days nor more than one year or a fine
or not less than the amount of the check nor more
than double said amount, but in no case to exceed
P200,000.00, or both such fine and imprisonment
at the discretion of the court. 3 for payment. The practice, as discussed later, is
The statute likewise imposes the same penalty on
"any person who, having sufficient funds in or
credit with the drawee bank when he makes or
draws and issues a check, shall fail to keep
sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a
period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the
drawee bank. 4
An essential element of the offense is "knowledge"
on the part of the maker or drawer of the check of
the insufficiency of his funds in or credit with the
bank to cover the check upon its presentment.
Since this involves a state of mind difficult to
establish, the statute itself creates a prima facie
presumption of such knowledge where payment of
the check "is refused by the drawee because of
insufficient funds in or credit with such bank when
presented within ninety (90) days from the date of
the check. 5 To mitigate the harshness of the law in
its application, the statute provides that such
presumption shall not arise if within five (5)
banking days from receipt of the notice of
dishonor, the maker or drawer makes
arrangements for payment of the check by the
bank or pays the holder the amount of the check.
Another provision of the statute, also in the nature
of a rule of evidence, provides that the
introduction in evidence of the unpaid and
dishonored check with the drawee bank’s refusal
thereto, giving the reason therefor," shall
constitute prima facie proof of "the making or
issuance of said check, and the due presentment to
the drawee for payment and the dishonor thereof
. . . for the reason written, stamped or attached by
the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is
open to the accused of course to present proof to
the contrary to overcome the said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the
practice of issuing checks that are worthless, i.e.
checks that end up being rejected or dishonored
proscribed by the state because of the injury it
causes to the public interests.
Before the enactment of BP 22, provisions already
existed in our statute books which penalize the
issuance of bouncing or rubber checks. Criminal
law has dealth with the problem within the context
of crimes against property punished as "estafa" or
crimes involving fraud and deceit. The focus of
these penal provisions is on the damage caused to
the property rights of the victim.
The Penal Code of Spain, which was in force in the
Philippines from 1887 until it was replaced by the
Revised Penal Code in 1932, contained provisions
penalizing, among others, the act of defrauding
another through false pretenses. Art. 335 punished
a person who defrauded another "by falsely
pretending to possess any power, influence,
qualification, property, credit, agency or business,
or by means of similar deceit." Although no explicit
mention was made therein regarding checks, this
provision was deemed to cover within its ambit the
issuance of worthless or bogus checks in exchange
for money. 7 payee of such circumstances."cralaw virtua1aw
In 1926, an amendment was introduced by the
Philippine Legislature, which added a new clause
(paragraph 10) to Article 335 of the old Penal Code,
this time referring in explicit terms to the issuance
of worthless checks. The amendment penalized
any person who: 1) issues a check in payment of a
debt or for other valuable consideration, knowing
at the time of its issuance that he does not have
sufficient funds in the bank to cover its amount, or
2) maliciously signs the check differently from his
authentic signature as registered at the bank in
order that the latter would refuse to honor it; or 3)
issues a postdated check and, at the date set for its
payment, does not have sufficient deposit to cover
the same. 8 drawer
In 1932, as already adverted to, the old Penal Code
was superseded by the Revised Penal Code. 9 The
above provisions, in amended form, were
incorporated in Article 315 of the Revised Penal
Code defining the crime of estafa. The revised text
of the provision read as
follows:jgc:chanrobles.com.ph
"Art. 315. Swindling (estafa). — Any person who
shall defraud another by any of the means
mentioned hereinbelow shall be punished
by:chanrob1es virtual 1aw library
x x x check. The failure of the drawer of the check to
2. By means of any of the following false pretenses
or fraudulent acts executed prior to or
simultaneously with the commission of the
fraud:chanrob1es virtual 1aw library
(a) By using fictitious name, or falsely pretending to
possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions,
or by means of other similar deceits;
x x x
(d) By postdating a check, or issuing a check in
payment of an obligation the offender knowing
that at the time he had no funds in the bank, or the
funds deposited by him were not sufficient to cover
the amount of the check without informing the
library
The scope of paragraph 2 (d), however, was
deemed to exclude checks issued in payment of
pre-existing obligations. 10 The rationale of this
interpretation is that in estafa, the deceit causing
the defraudation must be prior to or simultaneous
with the commission of the fraud. In issuing a check
as payment for a pre-existing debt, the drawer
does not derive any material benefit in return or as
consideration for its issuance. On the part of the
payee, he had already parted with his money or
property before the check is issued to him, hence,
he is not defrauded by means of any "prior" or
"simultaneous" deceit perpetrated on him by the
of the check.
With the intention of remedying the situation and
solving the problem of how to bring checks issued
in payment of pre-existing debts within the ambit
of Art. 315, an amendment was introduced by the
Congress of the Philippines in 1967, 11 which was
enacted into law as Republic Act No. 4885, revising
the aforesaid proviso to read as
follows:jgc:chanrobles.com.ph
"(d) By postdating a check, or issuing a check in
payment of an obligation when the offender had
no funds in the bank, or his funds deposited therein
were not sufficient to cover the amount of the
deposit the amount necessary to cover his check
within three (3) days from receipt of notice from
the bank and/or the payee or holder that said
check has been dishonored for lack or insufficiency
of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent
act."cralaw virtua1aw library
However, the adoption of the amendment did not
alter the situation materially. A divided Court held
in People v. Sabio, Jr. 12 that Article 315, as
amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing
obligations, again relying on the concept
underlying the crime of estafa through false
pretenses or deceit — which is, that the deceit or
false pretense must be prior to or simultaneous
with the commission of the fraud.
Since statistically it had been shown that the
greater bulk of dishonored checks consisted of
those issued in payment of pre-existing debts, 13
the amended provision evidently failed to cope
with the real problem and to deal effectively with
the evil that it was intended to eliminate or
minimize.
With the foregoing factual and legal antecedents as
a backdrop, the then Interim Batasan confronted
the problem squarely. It opted to take a bold step
and decided to enact a law dealing with the
problem of bouncing or worthless checks, without
attaching the law’s umbilical cord to the existing
penal provisions on estafa. BP 22 addresses the
problem directly and frontally and makes the act of
issuing a worthless check malum prohibitum. 14
The question now arises: Is BP 22 a valid law?
Previous efforts to deal with the problem of
bouncing checks within the ambit of the law on
estafa did not evoke any constitutional challenge.
In contrast, BP 22 was challenged promptly.
Those who question the constitutionality of BP 22
insist that: (1) it offends the constitutional
provision forbidding imprisonment for debt; (2) it
impairs freedom of contract; (3) it contravenes the
equal protection clause; (4) it unduly delegates
legislative and executive powers; and (5) its
enactment is flawed in that during its passage the
Interim Batasan violated the constitutional
provision prohibiting amendments to a bill on Third
Reading.
The constitutional challenge to BP 22 posed by
petitioners deserves a searching and thorough
scrutiny and the most deliberate consideration by
the Court, involving as it does the exercise of what
has been described as "the highest and most
delicate function which belongs to the judicial
department of the government." 15
As we enter upon the task of passing on the validity
of an act of a co-equal and coordinate branch of
the government, we need not be reminded of the
time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be
valid. Every presumption must be indulged in favor
of its constitutionality. This is not to say that we
approach our task with diffidence or timidity.
Where it is clear that the legislature has
overstepped the limits of its authority under the
constitution, we should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the
offending statute.
III
Among the constitutional objections raised against
BP 22, the most serious is the alleged conflict
between the statute and the constitutional
provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the
inhibition in the Bill of Rights which states, "No
person shall be imprisoned for debt or non-
payment of a poll tax." 16 Petitioners insist that,
since the offense under BP 22 is consummated only
upon the dishonor or non-payment of the check
when it is presented to the drawee bank, the
statute is really a "bad debt law" rather than a "bad
check law." What it punishes is the non-payment of
the check, not the act of issuing it. The statute, it is
claimed, is nothing more than a veiled device to
coerce payment of a debt under the threat of penal
sanction.
First of all, it is essential to grasp the essence and
scope of the constitutional inhibition invoked by
petitioners. Viewed in its historical context, the
constitutional prohibition against imprisonment
for debt is a safeguard that evolved gradually
during the early part of the nineteenth century in
the various states of the American Union as a result
of the people’s revulsion at the cruel and inhumane
practice, sanctioned by common law, which
permitted creditors to cause the incarceration of
debtors who could not pay their debts. At common
law, money judgments arising from actions for the
recovery of a debt or for damages from breach of
a contract could be enforced against the person or
body of the debtor by writ of capias ad
satisfaciendum. By means of this writ, a debtor
could be seized and imprisoned at the instance of
the creditor until he makes the satisfaction
awarded. As a consequence of the popular ground
swell against such a barbarous practice, provisions
forbidding imprisonment for debt came to be
generally enshrined in the constitutions of various
states of the Union. 17
This humanitarian provision was transported to our
shores by the Americans at the turn of the century
and embodied in our organic laws. 18 Later, our
fundamental law outlawed not only imprisonment
for debt, but also the infamous practice, native to
our shore, of throwing people in jail for non-
payment of the cedula or poll tax. 19
The reach and scope of this constitutional
safeguard have been the subject of judicial
definition, both by our Supreme Court 20 and by
American state courts. 21 Mr. Justice Malcolm,
speaking for the Supreme Court in Ganaway v.
Quillen, 22 stated: "The ‘debt’ intended to be
covered by the constitutional guaranty has a well-
defined meaning. Organic provisions relieving from
imprisonment for debt, were intended to prevent
commitment of debtors to prison for liabilities
arising from actions ex contractu. The inhibition
was never meant to include damages arising in
actions ex delicto, for the reason that damages
recoverable therein do not arise from any contract
entered into between the parties but are imposed
upon the defendant for the wrong he has done and
are considered as punishment, nor to fines and
penalties imposed by the courts in criminal
proceedings as punishments for crime."cralaw
virtua1aw library
The law involved in Ganaway was not a criminal
statute but the Code of Procedure in Civil Actions
(1909) which authorized the arrest of the
defendant in a civil case on grounds akin to those
which justify the issuance of a writ of attachment
under our present Rules of Court, such as imminent
departure of the defendant from the Philippines
with intent to defraud his creditors, or
concealment, removal or disposition of properties
in fraud of creditors, etc. The Court, in that case,
declared the detention of the defendant unlawful,
being violative of the constitutional inhibition
against imprisonment for debt, and ordered his
release. The Court, however, refrained from
declaring the statutory provision in question
unconstitutional.
Closer to the case at bar is People v. Vera Reyes, 23
wherein a statutory provision which made illegal
and punishable the refusal of an employer to pay,
when he can do so, the salaries of his employees or
laborers on the fifteenth or last day of every month
or on Saturday every week, was challenged for
being violative of the constitutional prohibition
against imprisonment for debt. The
constitutionality of the law in question was upheld
by the Court, it being within the authority of the
legislature to enact such a law in the exercise of the
police power. It was held that "one of the purposes
of the law is to suppress possible abuses on the
part of the employers who hire laborers or
employees without paying them the salaries
agreed upon for their services, thus causing them
financial difficulties." The law was viewed not as a
measure to coerce payment of an obligation,
although obviously such could be its effect, but to
banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional
inhibition against imprisonment for debt? To
answer the question, it is necessary to examine
what the statute prohibits and punishes as an
offense. Is it the failure of the maker of the check
to pay a debt? Or is it the making and issuance of a
worthless check in payment of a debt? What is the
gravamen of the offense? This question lies at the
heart of the issue before us.
The gravamen of the offense punished by BP 22 is
the act of making and issuing a worthless check or
a check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or
designed to coerce a debtor to pay his debt. The
thrust of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and
putting them in circulation. Because of its
deleterious effects on the public interest, the
practice is proscribed by the law. The law punishes
the act not as an offense against property, but an
offense against public order.
Admittedly, the distinction may seem at first blush
to appear elusive and difficult to conceptualize. But
precisely in the failure to perceive the vital
distinction lies the error of those who challenge the
validity of BP 22.
It may be constitutionally impermissible for the
legislature to penalize a person for non-payment of
a debt ex contractu. But certainly it is within the
prerogative of the lawmaking body to proscribe
certain acts deemed pernicious and inimical to
public welfare. Acts mala in se are not the only acts
which the law can punish. An act may not be
considered by society as inherently wrong, hence,
not malum in se, but because of the harm that it
inflicts on the community, it can be outlawed and
criminally punished as malum prohibitum. The
state can do this in the exercise of its police power.
The police power of the state has been described
as "the most essential, insistent and illimitable of
powers" which enables it to prohibit all things
hurtful to the comfort, safety and welfare of
society. 24 It is a power not emanating from or
conferred by the constitution, but inherent in the
state, plenary, suitably vague and far from
precisely defined, rooted in the conception that
man in organizing the state and imposing upon the
government limitations to safeguard constitutional
rights did not intend thereby to enable individual
citizens or group of citizens to obstruct
unreasonably the enactment of such salutary
measures to ensure communal peace, safety, good
order and welfare."25cralaw:red
The enactment of BP 22 is a declaration by the
legislature that, as a matter of public policy, the
making and issuance of a worthless check is
deemed a public nuisance to be abated by the
imposition of penal sanctions.
It is not for us to question the wisdom or impolicy
of the statute. It is sufficient that a reasonable
nexus exists between means and end. Considering
the factual and legal antecedents that led to the
adoption of the statute, it is not difficult to
understand the public concern which prompted its
enactment. It had been reported that the
approximate value of bouncing checks per day was
close to 200 million pesos, and thereafter when
overdrafts were banned by the Central Bank, it
averaged between 50 million to 80 million pesos a
day. 26
By definition, a check is a bill of exchange drawn on
a bank and payable on demand. 27 It is a written
order on a bank, purporting to be drawn against a
deposit of funds for the payment of all events, of a
sum of money to a certain person therein named
or to his order or to cash, and payable on demand.
28 Unlike a promissory note, a check is not a mere
undertaking to pay an amount of money. It is an
order addressed to a bank and partakes of a
representation that the drawer has funds on
deposit against which the check is drawn, sufficient
to ensure payment upon its presentation to the
bank. There is therefore an element of certainty or
assurance that the instrument will be paid upon
presentation. For this reason, checks have become
widely accepted as a medium of payment in trade
and commerce. Although not legal tender, checks
have come to be perceived as convenient
substitutes for currency in commercial and
financial transactions. The basis or foundation of
such perception is confidence. If such confidence is
shaken, the usefulness of checks as currency
substitutes would be greatly diminished or may
become nil. Any practice therefore tending to
destroy that confidence should be deterred, for the
proliferation of worthless checks can only create
havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-
third of the entire money supply of the country,
roughly totalling P32.3 billion, consists of peso
demand deposits; the remaining two-thirds
consists of currency in circulation. 29 These
demand deposits in the banks constitute the funds
against which, among others, commercial papers
like checks, are drawn. The magnitude of the
amount involved amply justifies the legitimate
concern of the state in preserving the integrity of
the banking system. Flooding the system with
worthless checks is like pouring garbage into the
bloodstream of the nation’s economy.
The effects of the issuance of a worthless check
transcends the private interests of the parties
directly involved in the transaction and touches the
interests of the community at large. The mischief it
creates is not only a wrong to the payee or holder,
but also an injury to the public. The harmful
practice of putting valueless commercial papers in
circulation, multiplied a thousandfold, can very
well pollute the channels of trade and commerce,
injure the banking system and eventually hurt the
welfare of society and the public interest. As aptly
stated — 30
"The ‘check flasher’ does a great deal more than
contract a debt; he shakes the pillars of business;
and to my mind, it is a mistaken charity of judgment
to place him in the same category with the honest
man who is unable to pay his debts, and for whom
the constitutional inhibition against `imprisonment
for debt, except in cases of fraud’ was intended as
a shield and not a sword."cralaw virtua1aw library
In sum, we find the enactment of BP 22 a valid
exercise of the police power and is not repugnant
to the constitutional inhibition against
imprisonment for debt.
This Court is not unaware of the conflicting
jurisprudence obtaining in the various states of the
United States on the constitutionality of the
"worthless check" acts. 31 It is needless to warn
that foreign jurisprudence must be taken with
abundant caution. A caveat to be observed is that
substantial differences exist between our statute
and the worthless check acts of those states where
the jurisprudence have evolved. One thing to
remember is that BP 22 was not lifted bodily from
any existing statute. Furthermore, we have to
consider that judicial decisions must be read in the
context of the facts and the law involved and, in a
broader sense, of the social, economic and political
environment — in short, the milieu — under which
they were made. We recognize the wisdom of the
old saying that what is sauce for the goose may not
be sauce for the gander.
As stated elsewhere, police power is a dynamic
force that enables the state to meet the exigencies
of changing times. There are occasions when the
police power of the state may even override a
constitutional guaranty. For example, there have
been cases wherein we held that the constitutional
provision on non-impairment of contracts must
yield to the police power of the state. 32 Whether
the police power may override the constitutional
inhibition against imprisonment for debt is an issue
we do not have to address. This bridge has not
been reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the
constitutional inhibition against imprisonment for
debt.
V
We need not detain ourselves lengthily in the
examination of the other constitutional objections
raised by petitioners, some of which are rather
flimsy.
We find no valid ground to sustain the contention
that BP 22 impairs freedom of contract. The
freedom of contract which is constitutionally
protected is freedom to enter into "lawful"
contracts. Contracts which contravene public
policy are not lawful. 33 Besides, we must bear in
mind that checks can not be categorized as mere
contracts. It is a commercial instrument which, in
this modern day and age, has become a convenient
substitute for money; it forms part of the banking
system and therefore not entirely free from the
regulatory power of the state.
Neither do we find substance in the claim that the
statute in question denies equal protection of the
laws or is discriminatory, since it penalizes the
drawer of the check, but not the payee. It is
contended that the payee is just as responsible for
the crime as the drawer of the check, since without
the indispensable participation of the payee by his
acceptance of the check there would be no crime.
This argument is tantamount to saying that, to give
equal protection, the law should punish both the
swindler and the swindled. The petitioners’
posture ignores the well-accepted meaning of the
clause "equal protection of the laws." The clause
does not preclude classification of individuals, who
may be accorded different treatment under the
law as long as the classification is not unreasonable
or arbitrary. 34
It is also suggested that BP 22 constitutes undue or
improper delegation of legislative powers, on the
theory that the offense is not completed by the
sole act of the maker or drawer but is made to
depend on the will of the payee. If the payee does
not present the check to the bank for payment but
instead keeps it, there would be no crime. The logic
of the argument stretches to absurdity the
meaning of "delegation of legislative power." What
cannot be delegated is the power to legislate, or
the power to make laws, 35 which means, as
applied to the present case, the power to define
the offense sought to be punished and to prescribe
the penalty. By no stretch of logic or imagination
can it be said that the power to define the crime
and prescribe the penalty therefor has been in any
manner delegated to the payee. Neither is there
any provision in the statute that can be construed,
no matter how remotely, as undue delegation of
executive power. The suggestion that the statute
unlawfully delegates its enforcement to the
offended party is farfetched.
Lastly, the objection has been raised that Section 9
(2) of Article VII of the 1973 Constitution was
violated by the legislative body when it enacted BP
22 into law. This constitutional provision prohibits
the introduction of amendments to a bill during the
Third Reading. It is claimed that during its Third
Reading, the bill which eventually became BP 22
was amended in that the text of the second
paragraph of Section 1 of the bill as adopted on
Second Reading was altered or changed in the
printed text of the bill submitted for approval on
Third Reading.
A careful review of the record of the proceedings
of the Interim Batasan on this matter shows that,
indeed, there was some confusion among Batasan
Members on what was the exact text of the
paragraph in question which the body approved on
Second Reading. 36 Part of the confusion was due
apparently to the fact that during the deliberations
on Second Reading (the amendment period),
amendments were proposed orally and approved
by the body or accepted by the sponsor, hence,
some members might not have gotten the
complete text of the provisions of the bill as
amended and approved on Second Reading.
However, it is clear from the records that the text
of the second paragraph of Section 1 of BP 22 is the
text which was actually approved by the body on
Second Reading on February 7, 1979, as reflected
in the approved Minutes for that day. In any event,
before the bill was submitted for final approval on
Third Reading, the Interim Batasan created a
Special Committee to investigate the matter, and
the Committee in its report, which was approved
by the entire body on March 22, 1979, stated that
"the clause in question was . . . an authorized
amendment of the bill and the printed copy
thereof reflects accurately the provision in
question as approved on Second Reading. 37 We
therefore, find no merit in the petitioners’ claim
that in the enactment of BP 22 the provisions of
Section 9 (2) of Article VIII of the 1973 Constitution
were violated.
WHEREFORE, judgment is rendered granting the
petition in G.R. No. 75789 and setting aside the
order of the respondent Judge dated August 19,
1986. The petitions in G.R. Nos. 63419, 66839-42,
71654, 74524-25, 75122-49, 75812-13 and 75765-
67 are hereby dismissed and the temporary
restraining order issued in G.R. Nos. 74524-25 is
lifted. With costs against private petitioners.
SO ORDERED.
[ G.R. No. 222226. February 14, 2022 ]
FE J. MORADA, PETITIONER, VS. RANDY RIAS, EX-O
ROLLY CEBU, DESK OFFICER ROMY DONALDO,
DESK OFFICER FERNANDO DOMINGO AND OTHER
JOHN DOES OF BARANGAY 176, CALOOCAN CITY,
RESPONDENTS.
DECISION
HERNANDO, J.:
At bar is a petition for review
on certiorari1 filed by petitioner Fe J. Morada
(Morada) from the Order2 dated January 26, 2016
of the Regional Trial Court (RTC) of Caloocan City,
Branch 123, which denied the Petition for Issuance
of Writ of Amparo3 she filed for the alleged
enforced disappearance of her son, Johnson J.
Morada (Johnson).
Morada alleged that on October 14, 2015 at
around 8:00 a.m., she received a text message
from her daughter, Jennilyn J. Morada, that
Johnson was arrested and detained by the
barangay tanods of Barangay 176, Caloocan City
for alleged theft of a mobile phone in the house of
another barangay tanod, herein respondent Randy
Rias (Randy).4
 Morada went to the barangay hall at about
7:00 p.m. of October 14, 2015. At the barangay
hall, respondent Rolly Cebu (Rolly) informed
Morada that Johnson was already released by
either respondent Fernando Domingo (Fernando)
or respondent Romy Donaldo (Romy) from the
custody of the barangay as evidenced by the entry
in the barangay blotter, signed by Johnson
himself.5
In December 2015, Morada went to the
Northern Police District (NPD) to report that her
son is missing. An investigation was conducted but
the same was terminated in view of the lack of a
witness to shed light on Johnson's disappearance
and the insistence of the respondent barangay
desk officers that Johnson was already released
from their custody.6
In the meantime, rumors circulated within
Barangay 176 that Johnson had been extrajudicially
killed and that his body was mixed in cement in
order to conceal the incident. This prompted
Morada to institute a petition for the issuance of a
writ of amparo to determine whether respondents
had violated or threatened to violate Johnson's
right to life, liberty and security, and to compel
respondents to determine the whereabouts of
Johnson, and the person/s responsible for his
disappearance or possible death, among others.7
On January 25, 2016, Morada filed before the
RTC a Petition for Issuance of Writ of
Amparo,8 docketed as SP. PROC CASE NO. C-5159.
On January 26, 2016, the RTC rendered the
assailed Order9 denying the petition. The RTC held
that there was no showing of any refusal on the
part of the respondents to acknowledge or to give
information on Johnson's whereabouts such that
there was no intention to remove him from the
protection of the law for a prolonged period of
time. Thus, the third and fourth elements of
enforced disappearance are absent. The decretal
portion of the RTC Order reads:
Premises considered, the
petition is hereby DENIED DUE
COURSE and is
accordingly DISMISSED.
SO ORDERED.10
Undaunted, Morada instituted the present
petition before this Court.
Issue
The issue for resolution is whether the RTC
gravely erred in not giving due course to the
petition for issuance of writ of amparo despite
substantial evidence submitted in support of the
same.
Morada argues that, contrary to the RTC's
findings, the enforced disappearance of Johnson
had been established by substantial evidence.
Morada insists that the lack of cooperation on the
part of the respondents amounted to a refusal on
their part to acknowledge or give information on
the fate or whereabouts of Johnson, showing their
intention to remove him from the protection of the
law.11
Our Ruling
The petition has no merit.
Section 19 of the Rule on the Writ of Amparo
(A.M. No. 07-9-12-SC) is explicit that both
questions of fact and law can be raised before the
Court in a petition for review on certiorari under
Rule 45.12 As a rule then, the Court is not bound
by the factual findings made by the lower court
which rendered the judgment in a petition for the
issuance of the writ of amparo. Be that as it may, a
careful review of the records of the case reveals
that the RTC committed no reversible error in
finding that no substantial evidence exists to
compel the grant of the writ prayed for by Morada.
The elements constituting enforced
disappearance as defined under Republic Act No.
9851 are as follows:
(a) that there be an arrest,
detention, abduction or any form
of deprivation of liberty;
(b) that it be carried out by, or
with the authorization, support or
acquiescence of, the State or a
political organization;
(c) that it be followed by the
State or political organization's
 refusal to acknowledge or give
information on the fate or
whereabouts of the person subject
of the amparo petition; and
(d) that the intention for such
refusal is to remove subject person
from the protection of the law for a
prolonged period of time.13
There is no question that the first and second
elements are attendant in this case. However, We
agree with the RTC that the third and fourth
elements are sorely lacking. While it is admitted
that Johnson was arrested for the alleged theft that
he committed in the house of Randy, it was
sufficiently established by the respondents that he
was already released from their custody on
October 14, 2015, as evidenced by the barangay
blotter, signed by Johnson himself.14 In fact,
Morada neither denied nor refuted the said
document of release. As opposed to the
unsubstantiated allegations of Morada that it is
respondents who are responsible for Johnson's
disappearance, We accord greater weight to the
documentary evidence presented by the
respondents exhibiting that Johnson was no longer
in the custody of the respondents when he
disappeared. Such evidence strongly militate
against Morada's claim of enforced disappearance.
Morada further argues that the lack of
cooperation on the part of the respondents
constitutes a refusal on their part to acknowledge
Johnson's disappearance and the corresponding
intention to remove him from the protection of the
law.
This argument is specious.
By her own admission, Morada disclosed that
when she inquired about her son Johnson at the
barangay hall, she was immediately informed by
respondent Rolly that Johnson was captured but
was also released from detention the same day. In
support thereof, Rolly showed the barangay blotter
which bore Johnson's signature showing his
release. Thus, it is clear that there was no refusal to
give information on the whereabouts of Johnson.
Morada further admitted that the NPD
conducted an investigation on Johnson's
disappearance but the same was terminated due
to the lack of a witness to give light to the
investigation and on account of the information
from the barangay that he was already released
from custody. The foregoing belie Morada's claim
of lack of cooperation on the part of the
authorities. On this score, We agree with the
following observations of the RTC:
This documentary proof of Johnson's release from
detention is, to the mind of the Court, substantial
evidence to establish that the respondents have
not refused to acknowledge or give information on
the whereabouts of Johnson, as in fact it should be
regarded as information positively showing that
Johnson was no longer under the hold of the
barangay officials.15
Accordingly, there was no intention to remove
Johnson from the protection of the law for a
prolonged period of time as he had been released
already. Hence, We see no enforced or involuntary
disappearance that would warrant the issuance of
the writ of amparo.
"For the issuance of the writ, it is not sufficient
that a person's life is endangered. It is even not
sufficient to allege and prove that a person has
disappeared. It has to be shown by the required
quantum of proof that the disappearance was
carried out by, or with the authorization, support
or acquiescence of the government or a political
organization, and that there is a refusal to
acknowledge the same or to give information on
the fate or whereabouts of the missing persons."16
In the instant case, the Court agrees with the
RTC that Morada failed to prove by substantial
evidence her claim of enforced disappearance.
Morada's petition is mainly anchored on the
alleged rumor which circulated in their community
that Johnson was killed and his dead body was
mixed in cement. However, said allegation lacked
corroborations. The presentation of testimonial,
documentary or at least circumstantial evidence
could have made a difference in light of the denials
made by the respondents as regards Morada's
claims, as well as the documentary evidence,
showing that Johnson is no longer in the charge of
the barangay. Morada's continued reliance on
mere rumors and speculations, without presenting
any clear and independent evidence showing that
there was a threat to Johnson's life, liberty, and
security, even prior to his arrest or that he was
physically harmed by the respondents while in
detention, does not amount to substantial
evidence.
Not only did Morada fail to substantiate any
extrajudicial killing or enforced disappearance in
this case, she also miserably failed to show any
government participation or acquiescence in any
killing or disappearance. To reiterate, records show
that Johnson was properly accounted for by the
authorities who initially detained him.
Given the foregoing, there is no basis for the
issuance of the writ of amparo. The liberality
accorded to amparo does not mean that a claimant
is excused from the onus of proving his case.
"Indeed, even the liberal standard of substantial
evidence demands some adequate evidence."17
WHEREFORE, the instant
petition is hereby DENIED. The
assailed Order dated January 26,
2016 of the Regional Trial Court of
Caloocan City, Branch 123
is AFFIRMED.
SO ORDERED.
G.R. No. 176389 December 14, 2010
ANTONIO LEJANO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176864
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
HUBERT JEFFREY P. WEBB, ANTONIO LEJANO,
MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ,
MIGUEL RODRIGUEZ, PETER ESTRADA and
GERARDO BIONG, Appellants.
DECISION
ABAD, J.:
Brief Background
On June 30, 1991 Estrellita Vizconde and her
daughters Carmela, nineteen years old, and
Jennifer, seven, were brutally slain at their home in
Parañaque City. Following an intense investigation,
the police arrested a group of suspects, some of
whom gave detailed confessions. But the trial court
smelled a frame-up and eventually ordered them
discharged. Thus, the identities of the real
perpetrators remained a mystery especially to the
public whose interests were aroused by the
gripping details of what everybody referred to as
the Vizconde massacre.
Four years later in 1995, the National Bureau of
Investigation or NBI announced that it had solved
the crime. It presented star-witness Jessica M.
Alfaro, one of its informers, who claimed that she
witnessed the crime. She pointed to accused
Hubert Jeffrey P. Webb, Antonio "Tony Boy"
Lejano, Artemio "Dong" Ventura, Michael A.
Gatchalian, Hospicio "Pyke" Fernandez, Peter
Estrada, Miguel "Ging" Rodriguez, and Joey Filart as
the culprits. She also tagged accused police officer,
Gerardo Biong, as an accessory after the fact.
Relying primarily on Alfaro's testimony, on August
10, 1995 the public prosecutors filed an
information for rape with homicide against Webb,
et al.1
The Regional Trial Court of Parañaque City, Branch
274, presided over by Judge Amelita G. Tolentino,
tried only seven of the accused since Artemio
Ventura and Joey Filart remained at large. 2 The
prosecution presented Alfaro as its main witness
with the others corroborating her testimony. These
included the medico-legal officer who autopsied
the bodies of the victims, the security guards of
Pitong Daan Subdivision, the former
laundrywoman of the Webb’s household, police
officer Biong’s former girlfriend, and Lauro G.
Vizconde, Estrellita’s husband.
For their part, some of the accused testified,
denying any part in the crime and saying they were
elsewhere when it took place. Webb’s alibi
appeared the strongest since he claimed that he
was then across the ocean in the United States of
America. He presented the testimonies of
witnesses as well as documentary and object
evidence to prove this. In addition, the defense
presented witnesses to show Alfaro's bad
reputation for truth and the incredible nature of
her testimony.
But impressed by Alfaro’s detailed narration of the
crime and the events surrounding it, the trial court
found a credible witness in her. It noted her
categorical, straightforward, spontaneous, and
frank testimony, undamaged by grueling cross-
examinations. The trial court remained unfazed by
significant discrepancies between Alfaro’s April 28
and May 22, 1995 affidavits, accepting her
explanation that she at first wanted to protect her
former boyfriend, accused Estrada, and a relative,
accused Gatchalian; that no lawyer assisted her;
that she did not trust the investigators who helped
her prepare her first affidavit; and that she felt
unsure if she would get the support and security
she needed once she disclosed all about the
Vizconde killings.
In contrast, the trial court thought little of the
denials and alibis that Webb, Lejano, Rodriguez,
and Gatchalian set up for their defense. They
paled, according to the court, compared to Alfaro’s
testimony that other witnesses and the physical
evidence corroborated. Thus, on January 4, 2000,
after four years of arduous hearings, the trial court
rendered judgment, finding all the accused guilty
as charged and imposing on Webb, Lejano,
Gatchalian, Fernandez, Estrada, and Rodriguez the
penalty of reclusion perpetua and on Biong, an
indeterminate prison term of eleven years, four
months, and one day to twelve years. The trial
court also awarded damages to Lauro Vizconde. 3
On appeal, the Court of Appeals affirmed the trial
court’s decision, modifying the penalty imposed on
Biong to six years minimum and twelve years
maximum and increasing the award of damages to
Lauro Vizconde.4 The appellate court did not agree
that the accused were tried by publicity or that the
trial judge was biased. It found sufficient evidence
of conspiracy that rendered Rodriguez, Gatchalian,
Fernandez, and Estrada equally guilty with those
who had a part in raping and killing Carmela and in
executing her mother and sister.
On motion for reconsideration by the accused, the
Court of Appeals' Special Division of five members
voted three against two to deny the
motion,5 hence, the present appeal.
On April 20, 2010, as a result of its initial
deliberation in this case, the Court issued a
Resolution granting the request of Webb to submit
for DNA analysis the semen specimen taken from
Carmela’s cadaver, which specimen was then
believed still under the safekeeping of the NBI. The
Court granted the request pursuant to section 4 of
the Rule on DNA Evidence6 to give the accused and
the prosecution access to scientific evidence that
they might want to avail themselves of, leading to
a correct decision in the case.
Unfortunately, on April 27, 2010 the NBI informed
the Court that it no longer has custody of the
specimen, the same having been turned over to
the trial court. The trial record shows, however,
that the specimen was not among the object
evidence that the prosecution offered in evidence
in the case.
This outcome prompted accused Webb to file an
urgent motion to acquit on the ground that the
government’s failure to preserve such vital
evidence has resulted in the denial of his right to
due process.
Issues Presented
Accused Webb’s motion to acquit presents a
threshold issue: whether or not the Court should
acquit him outright, given the government’s failure
to produce the semen specimen that the NBI found
on Carmela’s cadaver, thus depriving him of
evidence that would prove his innocence.
In the main, all the accused raise the central issue
of whether or not Webb, acting in conspiracy with
Lejano, Gatchalian, Fernandez, Estrada, Rodriguez,
Ventura, and Filart, raped and killed Carmela and
put to death her mother and sister. But, ultimately,
the controlling issues are:
1. Whether or not Alfaro’s testimony as
eyewitness, describing the crime and
identifying Webb, Lejano, Gatchalian,
Fernandez, Estrada, Rodriguez, and two
others as the persons who committed it, is
entitled to belief; and
2. Whether or not Webb presented
sufficient evidence to prove his alibi and
 rebut Alfaro’s testimony that he led the
others in committing the crime.
The issue respecting accused Biong is whether or
not he acted to cover up the crime after its
commission.
The Right to Acquittal
Due to Loss of DNA Evidence
Webb claims, citing Brady v. Maryland, 7
that he is
entitled to outright acquittal on the ground of
violation of his right to due process given the
State’s failure to produce on order of the Court
either by negligence or willful suppression the
semen specimen taken from Carmela.
The medical evidence clearly established that
Carmela was raped and, consistent with this,
semen specimen was found in her. It is true that
Alfaro identified Webb in her testimony as
Carmela’s rapist and killer but serious questions
had been raised about her credibility. At the very
least, there exists a possibility that Alfaro had lied.
On the other hand, the semen specimen taken
from Carmela cannot possibly lie. It cannot be
coached or allured by a promise of reward or
financial support. No two persons have the same
DNA fingerprint, with the exception of identical
twins.8 If, on examination, the DNA of the subject
specimen does not belong to Webb, then he did
not rape Carmela. It is that simple. Thus, the Court
would have been able to determine that Alfaro
committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure
of the State to produce the semen specimen at this
late stage. For one thing, the ruling in Brady v.
Maryland9 that he cites has long be overtaken by
the decision in Arizona v. Youngblood,10 where the
U.S. Supreme Court held that due process does not
require the State to preserve the semen specimen
although it might be useful to the accused unless
the latter is able to show bad faith on the part of
the prosecution or the police. Here, the State
presented a medical expert who testified on the
existence of the specimen and Webb in fact sought
to have the same subjected to DNA test.
For, another, when Webb raised the DNA issue, the
rule governing DNA evidence did not yet exist, the
country did not yet have the technology for
conducting the test, and no Philippine precedent
had as yet recognized its admissibility as evidence.
Consequently, the idea of keeping the specimen
secure even after the trial court rejected the
motion for DNA testing did not come up. Indeed,
neither Webb nor his co-accused brought up the
matter of preserving the specimen in the
meantime.
Parenthetically, after the trial court denied Webb’s
application for DNA testing, he allowed the
proceeding to move on when he had on at least
two occasions gone up to the Court of Appeals or
the Supreme Court to challenge alleged arbitrary
actions taken against him and the other
accused.11 They raised the DNA issue before the
Court of Appeals but merely as an error committed
by the trial court in rendering its decision in the
case. None of the accused filed a motion with the
appeals court to have the DNA test done pending
adjudication of their appeal. This, even when the
Supreme Court had in the meantime passed the
rules allowing such test. Considering the accused’s
lack of interest in having such test done, the State
cannot be deemed put on reasonable notice that it
would be required to produce the semen specimen
at some future time.
Now, to the merit of the case.
Alfaro’s Story
Based on the prosecution’s version, culled from the
decisions of the trial court and the Court of
Appeals, on June 29, 1991 at around 8:30 in the
evening, Jessica Alfaro drove her Mitsubishi Lancer,
with boyfriend Peter Estrada as passenger, to the
Ayala Alabang Commercial Center parking lot to
buy shabu from Artemio "Dong" Ventura. There,
Ventura introduced her to his friends: Hubert
Jeffrey P. Webb, Antonio "Tony Boy" Lejano,
Miguel "Ging" Rodriguez, Hospicio "Pyke"
Fernandez, Michael Gatchalian, and Joey Filart.
Alfaro recalled frequently seeing them at a shabu
house in Parañaque in January 1991, except
Ventura whom she had known earlier in December
1990.
As Alfaro smoked her shabu, Webb approached
and requested her to relay a message for him to a
girl, whom she later identified as Carmela
Vizconde. Alfaro agreed. After using up their shabu,
the group drove to Carmela’s house at 80 Vinzons
Street, Pitong Daan Subdivision, BF Homes,
Parañaque City. Riding in her car, Alfaro and
Estrada trailed Filart and Rodriguez who rode a
Mazda pick-up and Webb, Lejano, Ventura,
Fernandez, and Gatchalian who were on a Nissan
Patrol car.
On reaching their destination, Alfaro parked her car
on Vinzons Street, alighted, and approached
Carmela’s house. Alfaro pressed the buzzer and a
woman came out. Alfaro queried her about
Carmela. Alfaro had met Carmela twice before in
January 1991. When Carmela came out, Alfaro
gave her Webb’s message that he was just around.
Carmela replied, however, that she could not go
out yet since she had just arrived home. She told
Alfaro to return after twenty minutes. Alfaro
relayed this to Webb who then told the group to
drive back to the Ayala Alabang Commercial
Center.
The group had another shabu session at the
parking lot. After sometime, they drove back but
only Alfaro proceeded to Vinzons Street where
Carmela lived. The Nissan Patrol and the Mazda
pick-up, with their passengers, parked somewhere
along Aguirre Avenue. Carmela was at their garden.
She approached Alfaro on seeing her and told the
latter that she (Carmela) had to leave the house for
a while. Carmela requested Alfaro to return before
midnight and she would leave the pedestrian gate,
the iron grills that led to the kitchen, and the
kitchen door unlocked. Carmela also told Alfaro to
blink her car’s headlights twice when she
approached the pedestrian gate so Carmela would
know that she had arrived.
Alfaro returned to her car but waited for Carmela
to drive out of the house in her own car. Alfaro
trailed Carmela up to Aguirre Avenue where she
dropped off a man whom Alfaro believed was
Carmela’s boyfriend. Alfaro looked for her group,
found them, and relayed Carmela’s instructions to
Webb. They then all went back to the Ayala
Alabang Commercial Center. At the parking lot,
Alfaro told the group about her talk with Carmela.
When she told Webb of Carmela’s male
companion, Webb’s mood changed for the rest of
the evening ("bad trip").
Webb gave out free cocaine. They all used it and
some shabu, too. After about 40 to 45 minutes,
Webb decided that it was time for them to leave.
He said, "Pipilahan natin siya [Carmela] at ako ang
mauuna." Lejano said, "Ako ang susunod" and the
others responded "Okay, okay." They all left the
parking lot in a convoy of three vehicles and drove
into Pitong Daan Subdivision for the third time.
They arrived at Carmela’s house shortly before
midnight.
Alfaro parked her car between Vizconde’s house
and the next. While waiting for the others to alight
from their cars, Fernandez approached Alfaro with
a suggestion that they blow up the transformer
near the Vizconde’s residence to cause a brownout
("Pasabugin kaya natin ang transformer na ito").
But Alfaro shrugged off the idea, telling Fernandez,
"Malakas lang ang tama mo." When Webb, Lejano,
and Ventura were already before the house, Webb
told the others again that they would line up for
Carmela but he would be the first. The others
replied, "O sige, dito lang kami, magbabantay lang
kami."
Alfaro was the first to pass through the pedestrian
gate that had been left open. Webb, Lejano, and
Ventura followed her. On entering the garage,
Ventura using a chair mounted the hood of the
Vizcondes’ Nissan Sentra and loosened the electric
bulb over it ("para daw walang ilaw"). The small
group went through the open iron grill gate and
passed the dirty kitchen. Carmela opened the
aluminum screen door of the kitchen for them. She
and Webb looked each other in the eyes for a
moment and, together, headed for the dining area.
As she lost sight of Carmela and Webb, Alfaro
decided to go out. Lejano asked her where she was
going and she replied that she was going out to
smoke. As she eased her way out through the
kitchen door, she saw Ventura pulling out a kitchen
drawer. Alfaro smoked a cigarette at the garden.
After about twenty minutes, she was surprised to
hear a woman’s voice ask, "Sino yan?" Alfaro
immediately walked out of the garden to her car.
She found her other companions milling around it.
Estrada who sat in the car asked her, "Okay ba?"
After sitting in the car for about ten minutes, Alfaro
returned to the Vizconde house, using the same
route. The interior of the house was dark but some
light filtered in from outside. In the kitchen, Alfaro
saw Ventura searching a lady’s bag that lay on the
dining table. When she asked him what he was
looking for, he said: "Ikaw na nga dito, maghanap
ka ng susi." She asked him what key he wanted and
he replied: "Basta maghanap ka ng susi ng main
door pati na rin ng susi ng kotse." When she found
a bunch of keys in the bag, she tried them on the
main door but none fitted the lock. She also did not
find the car key.
Unable to open the main door, Alfaro returned to
the kitchen. While she was at a spot leading to the
dining area, she heard a static noise (like a
television that remained on after the station had
signed off). Out of curiosity, she approached the
master’s bedroom from where the noise came,
opened the door a little, and peeked inside. The
unusual sound grew even louder. As she walked in,
she saw Webb on top of Carmela while she lay with
her back on the floor. Two bloodied bodies lay on
the bed. Lejano was at the foot of the bed about to
wear his jacket. Carmela was gagged, moaning, and
in tears while Webb raped her, his bare buttocks
exposed.
Webb gave Alfaro a meaningful look and she
immediately left the room. She met Ventura at the
dining area. He told her, "Prepare an escape. Aalis
na tayo." Shocked with what she saw, Alfaro rushed
out of the house to the others who were either
sitting in her car or milling on the sidewalk. She
entered her car and turned on the engine but she
did not know where to go. Webb, Lejano, and
Ventura came out of the house just then. Webb
suddenly picked up a stone and threw it at the main
door, breaking its glass frame.
As the three men approached the pedestrian gate,
Webb told Ventura that he forgot his jacket in the
house. But Ventura told him that they could not get
in anymore as the iron grills had already locked.
They all rode in their cars and drove away until they
reached Aguirre Avenue. As they got near an old
hotel at the Tropical Palace area, Alfaro noticed the
Nissan Patrol slow down. Someone threw
something out of the car into the cogonal area.
The convoy of cars went to a large house with high
walls, concrete fence, steel gate, and a long
driveway at BF Executive Village. They entered the
compound and gathered at the lawn where the
"blaming session" took place. It was here that
Alfaro and those who remained outside the
Vizconde house learned of what happened. The
first to be killed was Carmela’s mother, then
Jennifer, and finally, Carmella. Ventura blamed
Webb, telling him, "Bakit naman pati yung bata?"
Webb replied that the girl woke up and on seeing
him molesting Carmela, she jumped on him, bit his
shoulders, and pulled his hair. Webb got mad,
grabbed the girl, pushed her to the wall, and
repeatedly stabbed her. Lejano excused himself at
this point to use the telephone in the house.
Meanwhile, Webb called up someone on his
cellular phone.
At around 2:00 in the morning, accused Gerardo
Biong arrived. Webb ordered him to go and clean
up the Vizconde house and said to him, "Pera lang
ang katapat nyan." Biong answered, "Okay lang."
Webb spoke to his companions and told them, "We
don’t know each other. We haven’t seen each
other…baka maulit yan." Alfaro and Estrada left
and they drove to her father’s house. 12
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who
showed up at the NBI after four years, bothered by
her conscience or egged on by relatives or friends
to come forward and do what was right? No. She
was, at the time she revealed her story, working for
the NBI as an "asset," a stool pigeon, one who
earned her living by fraternizing with criminals so
she could squeal on them to her NBI handlers. She
had to live a life of lies to get rewards that would
pay for her subsistence and vices.
According to Atty. Artemio Sacaguing, former head
of the NBI Anti-Kidnapping, Hijacking, and Armed
Robbery Task Force (AKHAR) Section, Alfaro had
been hanging around at the NBI since November or
December 1994 as an "asset." She supplied her
handlers with information against drug pushers
and other criminal elements. Some of this
information led to the capture of notorious drug
pushers like Christopher Cruz Santos and Orlando
Bacquir. Alfaro’s tip led to the arrest of the leader
of the "Martilyo gang" that killed a police officer.
Because of her talent, the task force gave her "very
special treatment" and she became its "darling,"
allowed the privilege of spending nights in one of
the rooms at the NBI offices.
When Alfaro seemed unproductive for sometime,
however, they teased her about it and she was
piqued. One day, she unexpectedly told Sacaguing
that she knew someone who had the real story
behind the Vizconde massacre. Sacaguing showed
interest. Alfaro promised to bring that someone to
the NBI to tell his story. When this did not happen
and Sacaguing continued to press her, she told him
that she might as well assume the role of her
informant. Sacaguing testified thus:
ATTY. ONGKIKO:
Q. Atty. Sacaguing, how did Jessica Alfaro
become a witness in the Vizconde murder
case? Will you tell the Honorable Court?
xxxx
A. She told me. Your Honor, that she knew
somebody who related to her the
circumstances, I mean, the details of the
massacre of the Vizconde family. That’s
what she told me, Your Honor.
ATTY. ONGKIKO:
Q. And what did you say?
xxxx
A. I was quite interested and I tried to
persuade her to introduce to me that man
and she promised that in due time, she will
bring to me the man, and together with her,
we will try to convince him to act as a state
witness and help us in the solution of the
case.
xxxx
Q. Atty. Sacaguing, were you able to
interview this alleged witness?
WITNESS SACAGUING:
A. No, sir.
ATTY. ONGKIKO:
Q. Why not?
WITNESS SACAGUING:
A. Because Jessica Alfaro was never able to
comply with her promise to bring the man
to me. She told me later that she could not
and the man does not like to testify.
ATTY. ONGKIKO:
Q. All right, and what happened after that?
WITNESS SACAGUING:
A. She told me, "easy lang kayo, Sir," if I may
quote, "easy lang Sir, huwag kayong…"
COURT:
How was that?
WITNESS SACAGUING:
A. "Easy lang, Sir. Sir, relax lang, Sir,
papapelan ko, papapelan ko na lang ‘yan."
xxxx
ATTY. ONGKIKO:
Q. All right, and what was your reaction
when Ms. Alfaro stated that "papapelan ko
na lang yan?"
WITNESS SACAGUING:
A. I said, "hindi puwede yan, kasi hindi ka
naman eye witness."
ATTY. ONGKIKO:
Q. And what was the reply of Ms. Alfaro?
WITNESS SACAGUING:
A. Hindi siya nakakibo, until she went away.
(TSN, May 28, 1996, pp. 49-50, 58, 77-79)
Quite significantly, Alfaro never refuted
Sacaguing’s above testimony.
2. The suspicious details
But was it possible for Alfaro to lie with such
abundant details some of which even tallied with
the physical evidence at the scene of the crime? No
doubt, yes.
Firstly, the Vizconde massacre had been reported
in the media with dizzying details. Everybody was
talking about what the police found at the crime
scene and there were lots of speculations about
them.
Secondly, the police had arrested some "akyat-
bahay" group in Parañaque and charged them with
the crime. The police prepared the confessions of
the men they apprehended and filled these up with
details that the evidence of the crime scene
provided. Alfaro’s NBI handlers who were doing
their own investigation knew of these details as
well. Since Alfaro hanged out at the NBI offices and
practically lived there, it was not too difficult for
her to hear of these evidentiary details and gain
access to the documents.
Not surprisingly, the confessions of some members
of the Barroso "akyat bahay" gang, condemned by
the Makati RTC as fabricated by the police to pin
the crime on them, shows how crime investigators
could make a confession ring true by matching
some of its details with the physical evidence at the
crime scene. Consider the following:
a. The Barroso gang members said that they got
into Carmela’s house by breaking the glass panel of
the front door using a stone wrapped in cloth to
deaden the noise. Alfaro could not use this line
since the core of her story was that Webb was
Carmela’s boyfriend. Webb had no reason to
smash her front door to get to see her.
Consequently, to explain the smashed door, Alfaro
had to settle for claiming that, on the way out of
the house, Webb picked up some stone and, out of
the blue, hurled it at the glass-paneled front door
of the Vizconde residence. His action really made
no sense. From Alfaro’s narration, Webb appeared
rational in his decisions. It was past midnight, the
house was dark, and they wanted to get away
quickly to avoid detection. Hurling a stone at that
glass door and causing a tremendous noise was
bizarre, like inviting the neighbors to come.
b. The crime scene showed that the house had
been ransacked. The rejected confessions of the
Barroso "akyat-bahay" gang members said that
they tried to rob the house. To explain this physical
evidence, Alfaro claimed that at one point Ventura
was pulling a kitchen drawer, and at another point,
going through a handbag on the dining table. He
said he was looking for the front-door key and the
car key.
Again, this portion of Alfaro’s story appears
tortured to accommodate the physical evidence of
the ransacked house. She never mentioned
Ventura having taken some valuables with him
when they left Carmela’s house. And why would
Ventura rummage a bag on the table for the front-
door key, spilling the contents, when they had
already gotten into the house. It is a story made to
fit in with the crime scene although robbery was
supposedly not the reason Webb and his
companions entered that house.
c. It is the same thing with the garage light. The
police investigators found that the bulb had been
loosened to turn off the light. The confessions of
the Barroso gang claimed that one of them climbed
the parked car’s hood to reach up and darken that
light. This made sense since they were going to rob
the place and they needed time to work in the dark
trying to open the front door. Some passersby
might look in and see what they were doing.
Alfaro had to adjust her testimony to take into
account that darkened garage light. So she claimed
that Ventura climbed the car’s hood, using a chair,
to turn the light off. But, unlike the Barroso "akyat-
bahay" gang, Webb and his friends did not have
anything to do in a darkened garage. They
supposedly knew in advance that Carmela left the
doors to the kitchen open for them. It did not make
sense for Ventura to risk standing on the car’s hood
and be seen in such an awkward position instead of
going straight into the house.
And, thirdly, Alfaro was the NBI’s star witness, their
badge of excellent investigative work.lavvphil After
claiming that they had solved the crime of the
decade, the NBI people had a stake in making her
sound credible and, obviously, they gave her all the
preparations she needed for the job of becoming a
fairly good substitute witness. She was their
"darling" of an asset. And this is not pure
speculation. As pointed out above, Sacaguing of
the NBI, a lawyer and a ranking official, confirmed
this to be a cold fact. Why the trial court and the
Court of Appeals failed to see this is mystifying.
At any rate, did Alfaro at least have a fine memory
for faces that had a strong effect on her, given the
circumstances? Not likely. She named Miguel
"Ging" Rodriguez as one of the culprits in the
Vizconde killings. But when the NBI found a certain
Michael Rodriguez, a drug dependent from the
Bicutan Rehabilitation Center, initially suspected to
be Alfaro’s Miguel Rodriguez and showed him to
Alfaro at the NBI office, she ran berserk, slapping
and kicking Michael, exclaiming: "How can I forget
your face. We just saw each other in a disco one
month ago and you told me then that you will kill
me." As it turned out, he was not Miguel Rodriguez,
the accused in this case.13
Two possibilities exist: Michael was really the one
Alfaro wanted to implicate to settle some score
with him but it was too late to change the name
she already gave or she had myopic vision, tagging
the wrong people for what they did not do.
3. The quality of the testimony
There is another thing about a lying witness: her
story lacks sense or suffers from inherent
inconsistencies. An understanding of the nature of
things and the common behavior of people will
help expose a lie. And it has an abundant presence
in this case.
One. In her desire to implicate Gatchalian,
Fernandez, Estrada, Rodriguez, and Filart, who
were supposed to be Webb’s co-principals in the
crime, Alfaro made it a point to testify that Webb
proposed twice to his friends the gang-rape of
Carmela who had hurt him. And twice, they
(including, if one believes Alfaro, her own
boyfriend Estrada) agreed in a chorus to his
proposal. But when they got to Carmela’s house,
only Webb, Lejano, Ventura, and Alfaro entered
the house.
Gatchalian, Fernandez, Estrada, and Rodriguez
supposedly stayed around Alfaro’s car, which was
parked on the street between Carmela’s house and
the next. Some of these men sat on top of the car’s
lid while others milled on the sidewalk, visible
under the street light to anyone who cared to
watch them, particularly to the people who were
having a drinking party in a nearby house.
Obviously, the behavior of Webb’s companions out
on the street did not figure in a planned gang-rape
of Carmela.
Two. Ventura, Alfaro’s dope supplier, introduced
her for the first time in her life to Webb and his
friends in a parking lot by a mall. So why would she
agree to act as Webb’s messenger, using her gas,
to bring his message to Carmela at her home. More
inexplicably, what motivated Alfaro to stick it out
the whole night with Webb and his friends?
They were practically strangers to her and her
boyfriend Estrada. When it came to a point that
Webb decided with his friends to gang-rape
Carmela, clearly, there was nothing in it for Alfaro.
Yet, she stuck it out with them, as a police asset
would, hanging in there until she had a crime to
report, only she was not yet an "asset" then. If, on
the other hand, Alfaro had been too soaked in
drugs to think clearly and just followed along where
the group took her, how could she remember so
much details that only a drug-free mind can?
Three. When Alfaro went to see Carmela at her
house for the second time, Carmella told her that
she still had to go out and that Webb and his
friends should come back around midnight. Alfaro
returned to her car and waited for Carmela to drive
out in her own car. And she trailed her up to
Aguirre Avenue where she supposedly dropped off
a man whom she thought was Carmela’s boyfriend.
Alfaro’s trailing Carmela to spy on her
unfaithfulness to Webb did not make sense since
she was on limited errand. But, as a critical witness,
Alfaro had to provide a reason for Webb to freak
out and decide to come with his friends and harm
Carmela.
Four. According to Alfaro, when they returned to
Carmela’s house the third time around midnight,
she led Webb, Lejano, and Ventura through the
pedestrian gate that Carmela had left open. Now,
this is weird. Webb was the gang leader who
decided what they were going to do. He decided
and his friends agreed with him to go to Carmela’s
house and gang-rape her. Why would Alfaro, a
woman, a stranger to Webb before that night, and
obviously with no role to play in the gang-rape of
Carmela, lead him and the others into her house?
It made no sense. It would only make sense if Alfaro
wanted to feign being a witness to something she
did not see.
Five. Alfaro went out of the house to smoke at the
garden. After about twenty minutes, a woman
exclaimed, "Sino yan?" On hearing this, Alfaro
immediately walked out of the garden and went to
her car. Apparently, she did this because she knew
they came on a sly. Someone other than Carmela
became conscious of the presence of Webb and
others in the house. Alfaro walked away because,
obviously, she did not want to get involved in a
potential confrontation. This was supposedly her
frame of mind: fear of getting involved in what was
not her business.
But if that were the case, how could she testify
based on personal knowledge of what went on in
the house? Alfaro had to change that frame of
mind to one of boldness and reckless curiosity. So
that is what she next claimed. She went back into
the house to watch as Webb raped Carmela on the
floor of the master’s bedroom. He had apparently
stabbed to death Carmela’s mom and her young
sister whose bloodied bodies were sprawled on the
bed. Now, Alfaro testified that she got scared
(another shift to fear) for she hurriedly got out of
the house after Webb supposedly gave her a
meaningful look.
Alfaro quickly went to her car, not minding
Gatchalian, Fernandez, Estrada, Rodriguez, and
Filart who sat on the car or milled on the sidewalk.
She did not speak to them, even to Estrada, her
boyfriend. She entered her car and turned on the
engine but she testified that she did not know
where to go. This woman who a few minutes back
led Webb, Lejano, and Ventura into the house,
knowing that they were decided to rape and harm
Carmela, was suddenly too shocked to know where
to go! This emotional pendulum swing indicates a
witness who was confused with her own lies.
4. The supposed corroborations
Intending to provide corroboration to Alfaro’s
testimony, the prosecution presented six
additional witnesses:
Dr. Prospero A. Cabanayan, the NBI Medico-Legal
Officer who autopsied the bodies of the victims,
testified on the stab wounds they sustained14 and
the presence of semen in Carmela’s
genitalia,15 indicating that she had been raped.
Normal E. White, Jr., was the security guard on
duty at Pitong Daan Subdivision from 7 p.m. of June
29 to 7 a.m. of June 30, 1991. He got a report on
the morning of June 30 that something untoward
happened at the Vizconde residence. He went
there and saw the dead bodies in the master’s
bedroom, the bag on the dining table, as well as the
loud noise emanating from a television set. 16
White claimed that he noticed Gatchalian and his
companions, none of whom he could identify, go in
and out of Pitong Daan Subdivision. He also saw
them along Vinzons Street. Later, they entered
Pitong Daan Subdivision in a three-car convoy.
White could not, however, describe the kind of
vehicles they used or recall the time when he saw
the group in those two instances. And he did not
notice anything suspicious about their coming and
going.
But White’s testimony cannot be relied on. His
initial claim turned out to be inaccurate. He
actually saw Gatchalian and his group enter the
Pitong Daan Subdivision only once. They were not
going in and out. Furthermore, Alfaro testified that
when the convoy of cars went back the second
time in the direction of Carmela’s house, she alone
entered the subdivision and passed the
guardhouse without stopping. Yet, White who
supposedly manned that guardhouse did not
notice her.
Surprisingly, White failed to note Biong, a police
officer, entering or exiting the subdivision on the
early morning of June 30 when he supposedly
"cleaned up" Vizconde residence on Webb’s
orders. What is more, White did not notice
Carmela arrive with her mom before Alfaro’s first
visit that night. Carmela supposedly left with a male
companion in her car at around 10:30 p.m. but
White did not notice it. He also did not notice
Carmela reenter the subdivision. White actually
discredited Alfaro’s testimony about the
movements of the persons involved.
Further, while Alfaro testified that it was the Mazda
pick-up driven by Filart that led the three-vehicle
convoy,17 White claimed it was the Nissan Patrol
with Gatchalian on it that led the convoy since he
would not have let the convoy in without
ascertaining that Gatchalian, a resident, was in it.
Security guard White did not, therefore, provide
corroboration to Alfaro’s testimony.1avvphi1
Justo Cabanacan, the security supervisor at Pitong
Daan Subdivision testified that he saw Webb
around the last week of May or the first week of
June 1991 to prove his presence in the Philippines
when he claimed to be in the United States. He was
manning the guard house at the entrance of the
subdivision of Pitong Daan when he flagged down
a car driven by Webb. Webb said that he would see
Lilet Sy. Cabanacan asked him for an ID but he
pointed to his United BF Homes sticker and said
that he resided there. Cabanacan replied, however,
that Pitong Daan had a local sticker.
Cabanacan testified that, at this point, Webb
introduced himself as the son of Congressman
Webb. Still, the supervisor insisted on seeing his ID.
Webb grudgingly gave it and after seeing the
picture and the name on it, Cabanacan returned
the same and allowed Webb to pass without being
logged in as their Standard Operating Procedure
required.18
But Cabanacan's testimony could not be relied on.
Although it was not common for a security guard
to challenge a Congressman’s son with such
vehemence, Cabanacan did not log the incident on
the guardhouse book. Nor did he, contrary to
prescribed procedure, record the visitor’s entry
into the subdivision. It did not make sense that
Cabanacan was strict in the matter of seeing
Webb’s ID but not in recording the visit.
Mila Gaviola used to work as laundry woman for
the Webbs at their house at BF Homes Executive
Village. She testified that she saw Webb at his
parents’ house on the morning of June 30, 1991
when she got the dirty clothes from the room that
he and two brothers occupied at about 4.a.m. She
saw him again pacing the floor at 9 a.m. At about 1
p.m., Webb left the house in t-shirt and shorts,
passing through a secret door near the maid’s
quarters on the way out. Finally, she saw Webb at
4 p.m. of the same day.19
On cross-examination, however, Gaviola could not
say what distinguished June 30, 1991 from the
other days she was on service at the Webb
household as to enable her to distinctly remember,
four years later, what one of the Webb boys did
and at what time. She could not remember any of
the details that happened in the household on the
other days. She proved to have a selective
photographic memory and this only damaged her
testimony.
Gaviola tried to corroborate Alfaro’'s testimony by
claiming that on June 30, 1991 she noticed
bloodstains on Webb's t-shirt.20 She did not call the
attention of anybody in the household about it
when it would have been a point of concern that
Webb may have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs' housemaid
from March 1989 to May 1992, and Sgt. Miguel
Muñoz, the Webbs' security aide in 1991, testified
that Gaviola worked for the Webbs only from
January 1991 to April 1991. Ventoso further
testified that it was not Gaviola's duty to collect the
clothes from the 2nd floor bedrooms, this being
the work of the housemaid charged with cleaning
the rooms.
What is more, it was most unlikely for a
laundrywoman who had been there for only four
months to collect, as she claimed, the laundry from
the rooms of her employers and their grown up
children at four in the morning while they were
asleep.
And it did not make sense, if Alfaro’s testimony
were to be believed that Webb, who was so careful
and clever that he called Biong to go to the
Vizconde residence at 2 a.m. to clean up the
evidence against him and his group, would bring his
bloodied shirt home and put it in the hamper for
laundrywoman Gaviola to collect and wash at 4
a.m. as was her supposed habit.
Lolita De Birrer was accused Biong’s girlfriend
around the time the Vizconde massacre took place.
Birrer testified that she was with Biong playing
mahjong from the evening of June 29, 1991 to the
early morning of June 30, when Biong got a call at
around 2 a.m. This prompted him, according to De
Birrer, to leave and go to BF. Someone sitting at the
backseat of a taxi picked him up. When Biong
returned at 7 a.m. he washed off what looked like
dried blood from his fingernails. And he threw
away a foul-smelling handkerchief. She also saw
Biong take out a knife with aluminum cover from
his drawer and hid it in his steel cabinet. 21
The security guard at Pitong Daan did not notice
any police investigator flashing a badge to get into
the village although Biong supposedly came in at
the unholy hour of two in the morning. His
departure before 7 a.m. also remained unnoticed
by the subdivision guards. Besides, if he had
cleaned up the crime scene shortly after midnight,
what was the point of his returning there on the
following morning to dispose of some of the
evidence in the presence of other police
investigators and on-lookers? In fact, why would he
steal valuable items from the Vizconde residence
on his return there hours later if he had the
opportunity to do it earlier?
At most, Birrer’s testimony only established Biong’s
theft of certain items from the Vizconde residence
and gross neglect for failing to maintain the
sanctity of the crime scene by moving around and
altering the effects of the crime. Birrer’s testimony
failed to connect Biong's acts to Webb and the
other accused.
Lauro Vizconde testified about how deeply he was
affected by the loss of her wife and two daughters.
Carmella spoke to him of a rejected suitor she
called "Bagyo," because he was a Parañaque
politician’s son. Unfortunately, Lauro did not
appear curious enough to insist on finding out who
the rejected fellow was. Besides, his testimony
contradicts that of Alfaro who testified that
Carmela and Webb had an on-going relation.
Indeed, if Alfaro were to be believed, Carmela
wanted Webb to come to her house around
midnight. She even left the kitchen door open so
he could enter the house.
5. The missing corroboration
There is something truly remarkable about this
case: the prosecution’s core theory that Carmela
and Webb had been sweethearts, that she had
been unfaithful to him, and that it was for this
reason that Webb brought his friends to her house
to gang-rape her is totally uncorroborated!
For instance, normally, if Webb, a Congressman’s
son, courted the young Carmela, that would be
news among her circle of friends if not around
town. But, here, none of her friends or even those
who knew either of them came forward to affirm
this. And if Webb hanged around with her, trying to
win her favors, he would surely be seen with her.
And this would all the more be so if they had
become sweethearts, a relation that Alfaro tried to
project with her testimony.
But, except for Alfaro, the NBI asset, no one among
Carmela’s friends or her friends’ friends would
testify ever hearing of such relationship or ever
seeing them together in some popular hangouts in
Parañaque or Makati. Alfaro’s claim of a five-hour
drama is like an alien page, rudely and
unconnectedly inserted into Webb and Carmela’s
life stories or like a piece of jigsaw puzzle trimmed
to fit into the shape on the board but does not
belong because it clashes with the surrounding
pieces. It has neither antecedent nor concomitant
support in the verifiable facts of their personal
histories. It is quite unreal.
What is more, Alfaro testified that she saw Carmela
drive out of her house with a male passenger, Mr.
X, whom Alfaro thought the way it looked was also
Carmela’s lover. This was the all-important reason
Webb supposedly had for wanting to harm her.
Again, none of Carmela’s relatives, friends, or
people who knew her ever testified about the
existence of Mr.X in her life. Nobody has come
forward to testify having ever seen him with
Carmela. And despite the gruesome news about
her death and how Mr. X had played a role in it, he
never presented himself like anyone who had lost
a special friend normally would. Obviously, Mr. X
did not exist, a mere ghost of the imagination of
Alfaro, the woman who made a living informing on
criminals.
Webb’s U.S. Alibi
Among the accused, Webb presented the
strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator
Freddie Webb and his wife, Elizabeth, sent their
son to the United States (U.S.) to learn the value of
independence, hard work, and money.22 Gloria
Webb, his aunt, accompanied him. Rajah Tours
booked their flight to San Francisco via United
Airlines. Josefina Nolasco of Rajah Tours confirmed
that Webb and his aunt used their plane tickets.
Webb told his friends, including his neighbor,
Jennifer Claire Cabrera, and his basketball buddy,
Joselito Orendain Escobar, of his travel plans. He
even invited them to his despedida party on March
8, 1991 at Faces Disco along Makati Ave. 23 On
March 8,1991, the eve of his departure, he took
girlfriend Milagros Castillo to a dinner at Bunchums
at the Makati Cinema Square. His basketball buddy
Rafael Jose with Tina Calma, a blind date arranged
by Webb, joined them. They afterwards went to
Faces Disco for Webb's despedida party. Among
those present were his friends Paulo Santos and Jay
Ortega.24
b. The two immigration checks
The following day, March 9, 1991, Webb left for
San Francisco, California, with his Aunt Gloria on
board United Airlines Flight 808.25 Before boarding
his plane, Webb passed through the Philippine
Immigration booth at the airport to have his
passport cleared and stamped. Immigration
Officer, Ferdinand Sampol checked Webb’s visa,
stamped, and initialed his passport, and let him
pass through.26 He was listed on the United Airlines
Flight’s Passenger Manifest.27
On arrival at San Francisco, Webb went through
the U.S. Immigration where his entry into that
country was recorded. Thus, the U.S. Immigration
Naturalization Service, checking with its Non-
immigrant Information System, confirmed Webb's
entry into the U.S. on March 9, 1991. Webb
presented at the trial the INS Certification issued by
the U.S. Immigration and Naturalization
Service,28 the computer-generated print-out of the
US-INS indicating Webb's entry on March 9,
1991,29 and the US-INS Certification dated August
31, 1995, authenticated by the Philippine
Department of Foreign Affairs, correcting an earlier
August 10, 1995 Certification.30
c. Details of U.S. sojourn
In San Francisco, Webb and his aunt Gloria were
met by the latter’s daughter, Maria Teresa Keame,
who brought them to Gloria’s house in Daly City,
California. During his stay with his aunt, Webb met
Christopher Paul Legaspi Esguerra, Gloria’s
grandson. In April 1991, Webb, Christopher, and a
certain Daphne Domingo watched the concert of
Deelite Band in San Francisco.31 In the same
month, Dorothy Wheelock and her family invited
Webb to Lake Tahoe to return the Webbs’
hospitality when she was in the Philippines. 32
In May 1991, on invitation of another aunt, Susan
Brottman, Webb moved to Anaheim Hills,
California.33 During his stay there, he occupied
himself with playing basketball once or twice a
week with Steven Keeler 34 and working at his
cousin-in-law’s pest control company.35 Webb
presented the company’s logbook showing the
tasks he performed,36 his paycheck,37 his ID, and
other employment papers. On June 14, 1991 he
applied for a driver's license 38 and wrote three
letters to his friend Jennifer Cabrera. 39
On June 28, 1991, Webb’s parents visited him at
Anaheim and stayed with the Brottmans. On the
same day, his father introduced Honesto Aragon to
his son when he came to visit.40 On the following
day, June 29, Webb, in the company of his father
and Aragon went to Riverside, California, to look
for a car. They bought an MR2 Toyota car. 41 Later
that day, a visitor at the Brottman’s, Louis
Whittacker, saw Webb looking at the plates of his
new car.42 To prove the purchase, Webb presented
the Public Records of California Department of
Motor Vehicle43 and a car plate "LEW WEBB."44 In
using the car in the U.S., Webb even received traffic
citations.45
On June 30, 1991 Webb, again accompanied by his
father and Aragon,46 bought a bicycle at Orange
Cycle Center.47 The Center issued Webb a receipt
dated June 30, 1991.48 On July 4, 1991,
Independence Day, the Webbs, the Brottmans, and
the Vaca family had a lakeside picnic. 49
Webb stayed with the Brottmans until mid July and
rented a place for less than a month. On August 4,
1991 he left for Longwood, Florida, to stay with the
spouses Jack and Sonja Rodriguez.50 There, he met
Armando Rodriguez with whom he spent time,
playing basketball on weekends, watching movies,
and playing billiards.51 In November 1991, Webb
met performing artist Gary Valenciano, a friend of
Jack Rodriguez, who was invited for a dinner at the
Rodriguez’s house.52 He left the Rodriguez’s home
in August 1992, returned to Anaheim and stayed
with his aunt Imelda Pagaspas. He stayed there
until he left for the Philippines on October 26,
1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also went
through both the U.S. and Philippine immigrations
on his return trip. Thus, his departure from the U.S.
was confirmed by the same certifications that
confirmed his entry.53 Furthermore, a Diplomatic
Note of the U.S. Department of State with enclosed
letter from Acting Director Debora A. Farmer of the
Records Operations, Office of Records of the US-
INS stated that the Certification dated August 31,
1995 is a true and accurate statement. And when
he boarded his plane, the Passenger Manifest of
Philippine Airlines Flight No. 103,54 certified by
Agnes Tabuena55 confirmed his return trip.
When he arrived in Manila, Webb again went
through the Philippine Immigration. In fact, the
arrival stamp and initial on his passport indicated
his return to Manila on October 27, 1992. This was
authenticated by Carmelita Alipio, the immigration
officer who processed Webb’s reentry.56 Upon his
return, in October 1992, Paolo Santos, Joselito
Erondain Escobar, and Rafael Jose once again saw
Webb playing basketball at the BF's Phase III
basketball court.
e. Alibi versus positive identification
The trial court and the Court of Appeals are one in
rejecting as weak Webb’s alibi. Their reason is
uniform: Webb’s alibi cannot stand against Alfaro’s
positive identification of him as the rapist and killer
of Carmela and, apparently, the killer as well of her
mother and younger sister. Because of this, to the
lower courts, Webb’s denial and alibi were
fabricated.
But not all denials and alibis should be regarded as
fabricated. Indeed, if the accused is truly innocent,
he can have no other defense but denial and alibi.
So how can such accused penetrate a mind that has
been made cynical by the rule drilled into his head
that a defense of alibi is a hangman’s noose in the
face of a witness positively swearing, "I saw him do
it."? Most judges believe that such assertion
automatically dooms an alibi which is so easy to
fabricate. This quick stereotype thinking, however,
is distressing. For how else can the truth that the
accused is really innocent have any chance of
prevailing over such a stone-cast tenet?
There is only one way. A judge must keep an open
mind. He must guard against slipping into hasty
conclusion, often arising from a desire to quickly
finish the job of deciding a case. A positive
declaration from a witness that he saw the accused
commit the crime should not automatically cancel
out the accused’s claim that he did not do it. A lying
witness can make as positive an identification as a
truthful witness can. The lying witness can also say
as forthrightly and unequivocally, "He did it!"
without blinking an eye.
Rather, to be acceptable, the positive identification
must meet at least two criteria:
First, the positive identification of the offender
must come from a credible witness. She is credible
who can be trusted to tell the truth, usually based
on past experiences with her. Her word has, to one
who knows her, its weight in gold.
And second, the witness’ story of what she
personally saw must be believable, not inherently
contrived. A witness who testifies about something
she never saw runs into inconsistencies and makes
bewildering claims.
Here, as already fully discussed above, Alfaro and
her testimony fail to meet the above criteria.
She did not show up at the NBI as a spontaneous
witness bothered by her conscience. She had been
hanging around that agency for sometime as a
stool pigeon, one paid for mixing up with criminals
and squealing on them. Police assets are often
criminals themselves. She was the prosecution’s
worst possible choice for a witness. Indeed, her
superior testified that she volunteered to play the
role of a witness in the Vizconde killings when she
could not produce a man she promised to the NBI.
And, although her testimony included details,
Alfaro had prior access to the details that the
investigators knew of the case. She took advantage
of her familiarity with these details to include in her
testimony the clearly incompatible act of Webb
hurling a stone at the front door glass frames even
when they were trying to slip away quietly—just so
she can accommodate this crime scene feature.
She also had Ventura rummaging a bag on the
dining table for a front door key that nobody
needed just to explain the physical evidence of that
bag and its scattered contents. And she had
Ventura climbing the car’s hood, risking being seen
in such an awkward position, when they did not
need to darken the garage to force open the front
door—just so to explain the darkened light and
foot prints on the car hood.
Further, her testimony was inherently incredible.
Her story that Gatchalian, Fernandez, Estrada,
Rodriguez, and Filart agreed to take their turns
raping Carmela is incongruent with their
indifference, exemplified by remaining outside the
house, milling under a street light, visible to
neighbors and passersby, and showing no interest
in the developments inside the house, like if it was
their turn to rape Carmela. Alfaro’s story that she
agreed to serve as Webb’s messenger to Carmela,
using up her gas, and staying with him till the
bizarre end when they were practically strangers,
also taxes incredulity.
To provide basis for Webb’s outrage, Alfaro said
that she followed Carmela to the main road to
watch her let off a lover on Aguirre Avenue. And,
inexplicably, although Alfaro had only played the
role of messenger, she claimed leading Webb,
Lejano, and Ventura into the house to gang-rape
Carmella, as if Alfaro was establishing a reason for
later on testifying on personal knowledge. Her
swing from an emotion of fear when a woman
woke up to their presence in the house and of
absolute courage when she nonetheless returned
to become the lone witness to a grim scene is also
quite inexplicable.
Ultimately, Alfaro’s quality as a witness and her
inconsistent, if not inherently unbelievable,
testimony cannot be the positive identification that
jurisprudence acknowledges as sufficient to
jettison a denial and an alibi.
f. A documented alibi
To establish alibi, the accused must prove by
positive, clear, and satisfactory evidence 57 that (a)
he was present at another place at the time of the
perpetration of the crime, and (b) that it was
physically impossible for him to be at the scene of
the crime.58
The courts below held that, despite his evidence,
Webb was actually in Parañaque when the
Vizconde killings took place; he was not in the U.S.
from March 9, 1991 to October 27, 1992; and if he
did leave on March 9, 1991, he actually returned
before June 29, 1991, committed the crime, erased
the fact of his return to the Philippines from the
records of the U.S. and Philippine Immigrations,
smuggled himself out of the Philippines and into
the U.S., and returned the normal way on October
27, 1992. But this ruling practically makes the
death of Webb and his passage into the next life
the only acceptable alibi in the Philippines. Courts
must abandon this unjust and inhuman paradigm.
If one is cynical about the Philippine system, he
could probably claim that Webb, with his father’s
connections, can arrange for the local immigration
to put a March 9, 1991 departure stamp on his
passport and an October 27, 1992 arrival stamp on
the same. But this is pure speculation since there
had been no indication that such arrangement was
made. Besides, how could Webb fix a foreign
airlines’ passenger manifest, officially filed in the
Philippines and at the airport in the U.S. that had
his name on them? How could Webb fix with the
U.S. Immigration’s record system those two dates
in its record of his travels as well as the dates when
he supposedly departed in secret from the U.S. to
commit the crime in the Philippines and then
return there? No one has come up with a logical
and plausible answer to these questions.
The Court of Appeals rejected the evidence of
Webb’s passport since he did not leave the original
to be attached to the record. But, while the best
evidence of a document is the original, this means
that the same is exhibited in court for the adverse
party to examine and for the judge to see. As Court
of Appeals Justice Tagle said in his dissent, 59 the
practice when a party does not want to leave an
important document with the trial court is to have
a photocopy of it marked as exhibit and stipulated
among the parties as a faithful reproduction of the
original. Stipulations in the course of trial are
binding on the parties and on the court.
The U.S. Immigration certification and the
computer print-out of Webb’s arrival in and
departure from that country were authenticated
by no less than the Office of the U.S. Attorney
General and the State Department. Still the Court
of Appeals refused to accept these documents for
the reason that Webb failed to present in court the
immigration official who prepared the same. But
this was unnecessary. Webb’s passport is a
document issued by the Philippine government,
which under international practice, is the official
record of travels of the citizen to whom it is issued.
The entries in that passport are presumed true. 60
The U.S. Immigration certification and computer
print-out, the official certifications of which have
been authenticated by the Philippine Department
of Foreign Affairs, merely validated the arrival and
departure stamps of the U.S. Immigration office on
Webb’s passport. They have the same evidentiary
value. The officers who issued these certifications
need not be presented in court to testify on them.
Their trustworthiness arises from the sense of
official duty and the penalty attached to a
breached duty, in the routine and disinterested
origin of such statement and in the publicity of the
record.61
The Court of Appeals of course makes capital of the
fact that an earlier certification from the U.S.
Immigration office said that it had no record of
Webb entering the U.S. But that erroneous first
certification was amply explained by the U.S.
Government and Court of Appeals Justice Tagle
stated it in his dissenting opinion, thus:
While it is true that an earlier Certification was
issued by the U.S. INS on August 16, 1995 finding
"no evidence of lawful admission of Webb," this
was already clarified and deemed erroneous by no
less than the US INS Officials. As explained by
witness Leo Herrera-Lim, Consul and Second
Secretary of the Philippine Embassy in Washington
D.C., said Certification did not pass through proper
diplomatic channels and was obtained in violation
of the rules on protocol and standard procedure
governing such request.
The initial request was merely initiated by BID
Commissioner Verceles who directly
communicated with the Philippine Consulate in San
Francisco, USA, bypassing the Secretary of Foreign
Affairs which is the proper protocol procedure. Mr.
Steven Bucher, the acting Chief of the Records
Services Board of US-INS Washington D.C. in his
letter addressed to Philip Antweiler, Philippine
Desk Officer, State Department, declared the
earlier Certification as incorrect and erroneous as
it was "not exhaustive and did not reflect all
available information." Also, Richard L. Huff, Co-
Director of the Office of Information and privacy,
US Department of Justice, in response to the
appeal raised by Consul General Teresita V.
Marzan, explained that "the INS normally does not
maintain records on individuals who are entering
the country as visitors rather than as immigrants:
and that a notation concerning the entry of a visitor
may be made at the Nonimmigrant Information
system. Since appellant Webb entered the U.S. on
a mere tourist visa, obviously, the initial search
could not have produced the desired result
inasmuch as the data base that was looked into
contained entries of the names of IMMIGRANTS
and not that of NON-IMMIGRANT visitors of the
U.S..62
The trial court and the Court of Appeals expressed
marked cynicism over the accuracy of travel
documents like the passport as well as the
domestic and foreign records of departures and
arrivals from airports. They claim that it would not
have been impossible for Webb to secretly return
to the Philippines after he supposedly left it on
March 9, 1991, commit the crime, go back to the
U.S., and openly return to the Philippines again on
October 26, 1992. Travel between the U.S. and the
Philippines, said the lower courts took only about
twelve to fourteen hours.
If the Court were to subscribe to this extremely
skeptical view, it might as well tear the rules of
evidence out of the law books and regard
suspicions, surmises, or speculations as reasons for
impeaching evidence. It is not that official records,
which carry the presumption of truth of what they
state, are immune to attack. They are not. That
presumption can be overcome by evidence. Here,
however, the prosecution did not bother to
present evidence to impeach the entries in Webb’s
passport and the certifications of the Philippine
and U.S.’ immigration services regarding his travel
to the U.S. and back. The prosecution’s rebuttal
evidence is the fear of the unknown that it planted
in the lower court’s minds.
7. Effect of Webb’s alibi to others
Webb’s documented alibi altogether impeaches
Alfaro's testimony, not only with respect to him,
but also with respect to Lejano, Estrada,
Fernandez, Gatchalian, Rodriguez, and Biong. For,
if the Court accepts the proposition that Webb was
in the U.S. when the crime took place, Alfaro’s
testimony will not hold together. Webb’s
participation is the anchor of Alfaro’s story.
Without it, the evidence against the others must
necessarily fall.
CONCLUSION
In our criminal justice system, what is important is,
not whether the court entertains doubts about the
innocence of the accused since an open mind is
willing to explore all possibilities, but whether it
entertains a reasonable, lingering doubt as to his
guilt. For, it would be a serious mistake to send an
innocent man to jail where such kind of doubt
hangs on to one’s inner being, like a piece of meat
lodged immovable between teeth.
Will the Court send the accused to spend the rest
of their lives in prison on the testimony of an NBI
asset who proposed to her handlers that she take
the role of the witness to the Vizconde massacre
that she could not produce?
WHEREFORE, the Court REVERSES and SETS ASIDE
the Decision dated December 15, 2005 and
Resolution dated January 26, 2007 of the Court of
Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS
accused-appellants Hubert Jeffrey P. Webb,
Antonio Lejano, Michael A. Gatchalian, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada and
Gerardo Biong of the crimes of which they were
charged for failure of the prosecution to prove
their guilt beyond reasonable doubt. They are
ordered immediately RELEASED from detention
unless they are confined for another lawful cause.
Let a copy of this Decision be furnished the
Director, Bureau of Corrections, Muntinlupa City
for immediate implementation. The Director of the
Bureau of Corrections is DIRECTED to report the
action he has taken to this Court within five days
from receipt of this Decision.
SO ORDERED.
[G.R. No. 132577. August 17, 1999]
PEOPLE OF THE PHILIPPINES, Petitioner, v. HUBERT
JEFFREY P. WEBB, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Challenged in this petition for review
on certiorari is the Decision of the Court of Appeals
in CA-G.R. SP No. 45399 entitled Hubert Jeffrey P.
Webb v. Hon. Amelita Tolentino, in her capacity as
Presiding Judge of Branch 274 of the Regional Trial
Court of Paraaque, People of the Philippines and
Lauro Vizconde which set aside the order of
respondent judge therein denying herein
respondent Hubert Jeffrey P. Webbs request to
take the depositions of five (5) citizens and
residents of the United States before the proper
consular officer of the Philippines in Washington
D.C. and California, as the case may be.
The factual and procedural antecedents are
matters of record or are otherwise
uncontroverted.
Respondent Hubert Jeffrey P. Webb is one of the
accused in Criminal Case No. 95-404 for Rape with
Homicide entitled People of the Philippines v.
Hubert Jeffrey P. Webb, et al. presently pending
before Branch 274 of the Regional Trial Court of
Paraaque, presided by Judge Amelita G. Tolentino.
During the course of the proceedings in the trial
court, respondent filed on May 2, 1997, a Motion
To Take Testimony By Oral Deposition1 praying that
he be allowed to take the testimonies of the
following:
1.] Steven Bucher
Acting Chief, Records Services Branch
U.S. Department of Justice
Immigration and Naturalization Service
425 Eye Street, N.W.
Washington D.C. 20536
U.S.A.
2.] Debora Farmer
Records Operations, Office of Records
U.S. Department of Justice
Immigration and Naturalization Service
Washington D.C.
U.S.A.
3.] Jaci Alston
Department of Motor Vehicles
Sacramento, California
U.S.A.
4.] Ami Smalley
Department of Motor Vehicles
Sacramento, California
U.S.A.
5.] John Pavlisin
210 South Glasell, City of Orange
California, 92666
U.S.A.
before the general consul, consul, vice-consul or
consular agent of the Philippines in lieu of
presenting them as witnesses in court alleging that
the said persons are all residents of the United
States and may not therefore be compelled by
subpoena to testify since the court had no
jurisdiction over them.
Respondent further alleged that the taking of the
oral depositions of the aforementioned individuals
whose testimonies are allegedly material and
indispensable to establish his innocence of the
crime charged is sanctioned by Section 4, Rule 24
of the Revised Rules of Court which provides that:
SEC. 4. Use of depositions. At the trial or upon the
hearing of a motion or an interlocutory proceeding,
any part or all of a deposition, so far as admissible
under the rules of evidence, may be used against
any party who was present or represented at the
taking of the deposition or who had due notice
thereof, in accordance with any one of the
following provisions:
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of the deponent as a witness;
(b) The deposition of a party or of any one who at
the time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is a
party may be used by an adverse party for any
purpose;
(c) The deposition of a witness whether or not a
party, may be used by any party for any purpose if
the court finds: (1) that the witness is dead; (2) that
the witness is out of the province and a greater
distance than fifty (50) kilometers from the place of
trial or hearing, or is out of the Philippines, unless it
appears that his absence was procured by the party
offering the deposition; or (3) that the witness is
unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or (4) that the party
offering the deposition has been unable to procure
the attendance of the witness by subpoena or (5)
upon application and notice, that such exceptional
circumstances exist as to make it desirable in the
interest of justice and with due regard to the
importance of presenting the testimony of
witnesses orally in open court, to allow the
deposition to be used;
(d) If only part of a deposition is offered in evidence
by a party, the adverse party may require him to
introduce all of it which is relevant to the part
introduced and any party may introduce any other
parts. (italics supplied).
The prosecution thereafter filed an opposition to
the said motion averring that: 1.] Rule 24, Section
4 of the Rules of Court, contrary to the
representation of respondent-accused, has no
application in criminal cases; 2.] Rule 119, Section
4 of the Rules of Court on Criminal Procedure,
being a mode of discovery, only provides for
conditional examination of witnesses for the
accused before trial not during trial; 3.] Rule 119,
Section 5 of the Rules of Court on Criminal
Procedure does not sanction the conditional
examination of witnesses for the accused/defense
outside Philippine jurisdiction.2cräläwvirtualibräry
In an Order dated June 11, 1997, the trial court
denied the motion of respondent on the ground
that the same is not allowed by Section 4, Rule 24
and Sections 4 and 5 of Rule 119 of the Revised
Rules of Court.3cräläwvirtualibräry
A motion for reconsideration4 thereto on the
grounds that: 1.] The 1997 Rules of Court expressly
allows the taking of depositions, and 2.] Section 11
of Rule 23 of the 1997 Rules of Court expressly
allows the taking of depositions in foreign
countries before a consul general, consul, vice-
consul or consular agent of the Republic of the
Philippines, was likewise denied by the trial court
in an order dated July 25, 1997.5cräläwvirtualibräry
Dissatisfied, respondent elevated his cause to the
Court of Appeals by way of a petition
for certiorari6 naming as respondents therein the
Presiding Judge Amelita G. Tolentino, the People
and private complainant Lauro Vizconde. In the
petition, docketed as CA-G.R. SP No. 45399,
respondent Webb argued that: 1.] The taking of
depositions pending action is applicable to criminal
proceedings; 2.] Depositions by oral testimony in a
foreign country can be taken before a consular
officer of the Philippine Embassy in the United
States; and, 3.] He has the right to completely and
fully present evidence to support his defense and
the denial of such right will violate his
constitutional right to due process.
Commenting7 on the petition, the People
contended that the questioned orders of the
Presiding Judge are well within the sphere of her
judicial discretion and do not constitute grave
abuse of discretion amounting to lack or excess of
jurisdiction and that if at all, they may be
considered merely as errors of judgment which
may be corrected by appeal in due time because:
a.] The motion failed to comply with the
requirements of Section 4, Rule 119 of the Rules of
Court; b.] The conditional examination must be
conducted before an inferior court; and c.] The
examination of the witnesses must be done in open
court.
In his Comment,8 private respondent Lauro
Vizconde sought the dismissal of the petition
contending that:
1.] The public respondent did not commit grave
abuse of discretion in denying petitioner [now
herein respondent] Webbs motion to take
testimony by oral deposition dated 29 April 1997 as
well as petitioners motion for reconsideration
dated 23 June 1997 for not being sanctioned by the
Rules of Court.
a.] The public respondent correctly held that Rule
23, Section 1 of the 1997 Revised Rules of Civil
Procedure finds no application in criminal actions
such as the case at bar.
b.] The public respondent correctly ruled that Rule
119, Section 4 of the Rules of Criminal Procedure
only provides for conditional examination of
witnesses before trial but not during trial.
c.] The public respondent correctly ruled that Rule
119 of the Rules on Criminal Procedure does not
sanction the conditional examination of witnesses
for the accused/defense outside of Philippine
jurisdiction.
2.] The public respondent did not commit any grave
abuse of discretion in denying petitioner Webbs
motion to take testimony by oral deposition
considering that the proposed deposition tends
only to further establish the admissibility of
documentary exhibits already admitted in evidence
by the public respondent.
On February 6, 1998, the Fourth Division9 of the
Court of Appeals rendered judgment,10 the
dispositive portion of which reads:
WHEREFORE, the petition is GRANTED. The orders
of respondent judge dated 11 June 1997 (Annex A
of the Petition) and 25 July 1997 (Annex B of the
Petition) are hereby ANNULLED and SET ASIDE. It is
hereby ordered that the deposition of the following
witnesses be TAKEN before the proper consular
officer of the Republic of the Philippines in
Washington D.C. and California, as the case may
be:
(a) Mr. Steven Bucher;
(b) Ms. Deborah Farmer;
(c) Mr. Jaci Alston;
(d) Ms. Ami Smalley; and
(e) Mr. John Pavlisin.
SO ORDERED.
From the foregoing, the People forthwith elevated
its cause to this Court by way of the instant petition
dispensing with the filing of a motion for
reconsideration for the following reasons: 1.] The
rule that the petitioner should first file a motion for
reconsideration applies to the special civil action
of certiorari under Rule 65 of the 1997 Rules of Civil
Procedure and there is no similar requirement in
taking an appeal from a final judgment or
order11 such as the present appeal by certiorari; 2.]
Section 4, Rule 45 in requiring a petition for review
on certiorari which indicates that when a motion
for new trial or reconsideration, if any, was filed
implies that petitioner need not file a motion for
reconsideration; 3.] The questions being raised
before the Court are the same as those which were
squarely raised before the Court of Appeals; 12 4.]
The issues being raised here are purely legal; 13 5.]
There is an urgent need to resolve the issues
considering that the trial of the accused in the
criminal case is about to end; and, 6.] The nature of
this case requires a speedy and prompt disposition
of the issues involved.14cräläwvirtualibräry
What are challenged before this Court are
interlocutory orders and not a final judgment. The
respondent has filed his Comment15 which We
treat as an Answer. The petitioner, in turn, filed a
Reply.16 The petition is ripe for decision.
In urging this Tribunal to exercise its power of
review over the assailed decision of the Appellate
Court, petitioner asserts that the Court of Appeals
committed serious and reversible error
I times an inconsiderable portion of the whole. The
IN RULING THAT RULE 23 OF THE 1997 RULES OF
CIVIL PROCEDURE IS APPLICABLE TO CRIMINAL
PROCEEDINGS.
II
IN RULING THAT THE DEPOSITION MAY BE TAKEN
BEFORE A CONSULAR OFFICER OF THE PHILIPPINES
WHERE THE PROSPECTIVE WITNESSES RESIDE OR
ARE OFFICIALLY STATIONED.
III
IN RULING THAT RESPONDENT WAS DEPRIVED OF
DUE PROCESS OF LAW BY THE TRIAL COURT.
which can be reduced to the primordial issue of
whether or not the trial judge gravely abused her
discretion in denying the motion to take testimony
by oral depositions in the United States which
would be used in the criminal case before her
Court.
In setting aside the order of the trial judge, the
Appellate Courts Fourth Division reasoned, inter
alia, thus:
Settled is the rule that the whole purpose and
object of procedure is to make the powers of the
court fully and completely available for justice.
Thus, as the Supreme Court has ruled in Manila
Railroad Co. vs. Attorney General and reiterated in
subsequent cases:
x x x The most perfect procedure that can be
devised is that which give the opportunity for the
most complete and perfect exercise of the powers
of the court within the limitations set by natural
justice. It is that one which, in other words, gives
the most perfect opportunity for the powers of the
court to transmute themselves into concrete acts
of justice between the parties before it. The
purpose of such a procedure is not to restrict the
jurisdiction of the court over the subject matter,
but to give it effective facility in righteous action. It
may be said in passing that the most salient
objection which can be urged against procedure
today is that it so restricts the exercise of the courts
powers by technicalities that part of its authority
effective for justice between the parties is many
purpose of procedure is not to thwart justice. Its
proper aim is to facilitate the application of justice
to the rival claims of the contending parties. It was
created not to hinder and delay but to facilitate and
promote the administration of justice. It does not
constitute the thing itself which the courts are
always striving to secure the litigants. It is designed
as the means best adapted to obtain that thing. In
other words, it is a means to an end. It is the means
by which the powers of the court are made
effective in just judgments. When it loses the
character of the one and takes on the other [,] the
administration of justice becomes incomplete and
unsatisfactory and lays itself open to grave
criticism.17
In the light of the foregoing judicial precedent, this
Court finds that the public respondent gravely
abused her discretion in denying the motion to take
the deposition of the witnesses for petitioner. While
petitioner had invoked Rule 23, Section 1 of the
Rules of Court, which is found under the general
classification of Civil Procedure, it does not prevent
its application to the other proceedings, provided
the same is not contrary to the specific rules
provided therein. Indeed, the Rules of Court is to be
viewed and construed as a whole, and if the
Supreme Court had compartmentalized the same
into four divisions, it was, as petitioner had claimed,
for the purpose of organization and expediency and
not, for exclusivity.
To be sure, a reading of the rules on criminal
procedure, specifically Section 4, Rule 119 vis--vis
Section 1, Rule 23 would reveal no inconsistency so
as to exclude the application of the latter rule in
criminal proceedings. Section 4, Rule 119 refers to
the conditional examination of witnesses for the
accused before trial, while Section 1, Rule 23 refers
to the taking of deposition witnesses during trial. x
xx
xxx
While the taking of depositions pending trial is not
expressly provided [for] under the Rules on Criminal
Procedure, we find no reason for public respondent
to disallow the taking of the same in the manner
provided for under Section 1 of Rule 23 under the
circumstances of the case. To disallow petitioner to
avail of the specific remedies provided under the
Rules would deny him the opportunity to
adequately defend himself against the criminal
charge of rape with homicide now pending before
the public respondent and, further, [it] loses sight of
the object of procedure which is to facilitate the
application of justice to the rival claims of
contending parties.
xxx
Even granting arguendo that Rule 23 is to be
exclusively applied to civil actions, the taking of the
deposition of petitioners US-based witnesses
should be still allowed considering that the civil
action has been impliedly instituted in the criminal
action for rape with homicide. Since public
respondent has jurisdiction over the civil case to
recover damages, she exercised full authority to
employ all auxillary writs, processes and other
means to carry out the jurisdiction conferred and
[to] adopt any suitable process or mode of
proceeding which includes the application of the
rule on depositions pending action under Rule 23 in
the case pending before her.
Second. Depositions obtained during trial in a
foreign state or country may be taken before a
consular officer of the Republic of the Philippines
where the deponent resides or is officially
stationed.18 Section 5, Rule 119 of the Rules of
Court is thus clearly inapplicable in the instant case
since the same relates to the examination of
witnesses under Section 4 thereof and not Section 1
of Rule 23. Consistent with the procedure provided
[for] under Rule 23, the deposition of the petitioners
witnesses, which include four (4) officials of the
United States government, will be taken before a
consular officer of the Philippines where these
witnesses reside or are officially stationed, as the
case may be.
The denial of petitioners right to present his
witnesses, who are residing abroad, based on a
very shaky technical ground, is tantamount to
depriving him of his constitutional right to due
process. This Court recognizes the impossibility of
enforcing the right of petitioner to secure the
attendance of the proposed witnesses through
compulsory process considering that they are
beyond the jurisdiction of Philippine Courts.
Petitioner, however, is not without any remedy and
he correctly sought to secure the testimonies of his
witnesses through the process of taking their
depositions pending the trial of Criminal Case No.
95-404 in the court below under Rule 23 of the
Rules of Court. In any event, the prosecution would
have the opportunity to cross-examine the
witnesses for accused Hubert Webb (petitioner
herein) since they will be given the opportunity to
cross-examine the deponents as in accordance with
Sections 3 to 18 of Rule 132.19
Furthermore, no prejudice would be suffered in the
taking of the depositions of petitioners US-based
witness[es]. On the other hand, a denial of the same
would be prejudicial to petitioner-accused since he
would be denied an opportunity to completely
present his evidence, which strikes at the very core
of the due process guarantee of the Constitution.
To reiterate, it is not the function of this Court to
second-guess the trial court on its ruling on the
admissibility of the pieces of documentary evidence
as well as the latters witnesses, 20 but it is definitely
within this courts inherent power to scrutinize, as it
does in the case at bench, the acts of respondent
judge and declare that she indeed committed grave
abuse of discretion in issuing the questioned
Orders.
In the final analysis, this Court rules that the denial
of the deposition-taking amounts to the denial of
the constitutional right to present his evidence and
for the production of evidence in his behalf. The
denial is not justified by the flimsy reason that Sec.
1 of Rule 23 of the Rules of Court is not applicable
to criminal proceedings. To rule that petitioner
cannot take the testimony of these witnesses by
deposition is to put [a] premium on technicality at
the expense of the constitutional rights of the
accused, which this court is not inclined to do.
Particularly where the issue of the guilt or
innocence of petitioner is bound to hinge heavily
upon the testimonies of his US-based witnesses, it
behooves upon public respondent not only to
guarantee that accused is given a reasonable
opportunity to present his evidence, but also to
allow him a certain latitude in the presentation of
his evidence, lest he may be so hampered that the
ends of justice may eventually be defeated or
appear to be defeated. Finally, even if respondents
contention is correct, it cannot be denied that the
case at bar includes the recovery of the civil liability
of the accused, which normally is done through a
civil case.
We disagree.
As defined, a deposition is -
"The testimony of a witness taken upon oral
question or written interrogatories, not in open
court, but in pursuance of a commission to take
testimony issued by a court, or under a general law
or court rule on the subject, and reduced to writing
and duly authenticated, and intended to be used in
preparation and upon the trial of a civil or criminal
prosecution. A pretrial discovery device by which
one party (through his or her attorney) asks oral
questions of the other party or of a witness for the
other party. The person who is deposed is called
the deponent. The deposition is conducted under
oath outside of the court room, usually in one of
the lawyers offices. A transcript - word for word
account - is made of the deposition. Testimony of
[a] witness, taken in writing, under oath or
affirmation, before some judicial officer in answer
to questions or interrogatories x x x. 21
and the purposes of taking depositions are to: 1.]
Give greater assistance to the parties in
ascertaining the truth and in checking and
preventing perjury; 2.] Provide an effective means
of detecting and exposing false, fraudulent claims
and defenses; 3.] Make available in a simple,
convenient and inexpensive way, facts which
otherwise could not be proved except with great
difficulty; 4.] Educate the parties in advance of trial
as to the real value of their claims and defenses
thereby encouraging settlements; 5.]Expedite
litigation; 6.] Safeguard against surprise;
7.] Prevent delay; 8.] Simplify and narrow the
issues; and 9.] Expedite and facilitate both
preparation and trial.22 As can be gleaned from the
foregoing, a deposition, in keeping with its nature
as a mode of discovery, should be taken before and
not during trial. In fact, rules on criminal practice -
particularly on the defense of alibi, which is
respondents main defense in the criminal
proceedings against him in the court below - states
that when a person intends to rely on such a
defense, that person must move for the taking of
the deposition of his witnesses within the time
provided for filing a pre-trial
23
motion. cräläwvirtualibräry
It needs to be stressed that the only reason of
respondent for seeking the deposition of the
foreign witnesses is to foreclose any objection
and/or rejection of, as the case may be, the
admissibility of Defense Exhibits 218 and 219. This
issue has, however, long been rendered moot and
academic by the admission of the aforementioned
documentary exhibits by the trial court in its order
dated July 10, 1998.24cräläwvirtualibräry
In fact, a circumspect scrutiny of the record
discloses that the evidence to be obtained through
the deposition-taking would be superfluous or
corroborative at best. A careful examination of
Exhibits 218 and 219 readily shows that these are
of the same species of documents which have been
previously introduced and admitted into evidence
by the trial court in its order dated July 18, 1997
which We noted in Webb, et al. v. People of the
Philippines, et al.25 wherein We pointed out,
among others, [t]hat respondent judge reversed
this erroneous ruling and already admitted these
132 pieces of evidence after finding that the
defects in (their) admissibility have been cured
though the introduction of additional evidence
during the trial on the merits. 26cräläwvirtualibräry
Indeed, a comparison of Exhibit 218-A which is a
U.S. Department of State Certification issued by
Joan C. Hampton, Assistant Authenticating Officer
of the said agency, for and in the name of
Madeleine K. Albright, stating that the documents
annexed thereto were issued by the U.S.
Department of Justice as shown by seal embossed
thereon,27 with other exhibits previously offered as
evidence reveals that they are of the same nature
as Exhibits 42-H28 and 42-M.29 The only difference
in the documents lies in the fact that Exhibit 218-A
was signed by Joan C. Hampton for and in behalf of
the incumbent Secretary of State, Madeleine K.
Albright whereas, Exhibits 42-H and 42-M were
signed by Authenticating Officer Annie R. Maddux
for and in behalf of former Secretary of State
Warren Christopher.30cräläwvirtualibräry
A comparison of Exhibit 218-B31 with the other
documentary exhibits offered by respondent,
likewise discloses that its contents are the same as
Exhibits 42-I32 and 42-N.33 The only difference in
the three exhibits, which are actually standard
issue certification forms issued by the U.S.
Department of Justice with blanks to be filled up, is
that Exhibit 218-B is dated February 5, 1997 and
signed by one of the U.S. Attorney Generals several
Deputy Assistant Attorneys for Administration for
and in her behalf, while Exhibits 42-I and 42-N are
both dated September 21, 1995 with another of
the said deputies signing both
34
documents. cräläwvirtualibräry
Still comparing respondents Exhibit 218-F,35 which
is likewise a standard issue U.S. Department of
Justice Certification Form, with other documents
previously introduced as evidence reveals that it is
the same as Exhibits 39-D36 and 42-C.37 The only
differences in these documents are that Exhibit
218-F is dated October 13, 1995 and is signed by
Debora A. Farmer while Exhibits "-39-D and 42-C
are both dated August 31, 1995 and signed by Cecil
G. Christian, Jr., Assistant Commissioner, Officer of
Records, INS.38cräläwvirtualibräry
Still further scrutinizing and comparing
respondents Exhibit 218-G39 which was also
introduced and admitted into evidence as Defense
Exhibit 207-B40 shows that the document has been
earlier introduced and admitted into evidence by
the trial court an astounding seven (7) times,
particularly as Exhibits 34-A, 35-F, 39-E, 42-D, 42-P,
50 and 50-F.41 The only difference in these
documents is that they were printed on different
dates. Specifically, Exhibits 218-G as with Exhibits
34-A, 35-F, 50, and 52-F were printed out on
October 26, 199542 whereas Exhibit 207-B as with
Exhibits 39-E, 42-D and 42-F were printed out on
August 31, 1995.43cräläwvirtualibräry
In fact, the records show that respondents: a.]
application for Non-Commercial Drivers License;
b.] Documentary records based on Clets Database
Response; c.] Computer-generated thumb-print;
d.] Documentary records based on still another
Clets Database Response, and e.] The Certification
issued by one Frank Zolin, Director of the State of
Californias Department of Motor Vehicles, were
already introduced and admitted into evidence as
Defense Exhibits 66-J, 66-K, 66-H, 66-I and 66-L,
respectively.44cräläwvirtualibräry
It need not be overemphasized that the foregoing
factual circumstances only serves to underscore
the immutable fact that the depositions proposed
to be taken from the five U.S. based witnesses
would be merely corroborative or cumulative in
nature and in denying respondents motion to take
them, the trial court was but exercising its
judgment on what it perceived to be a superfluous
exercise on the belief that the introduction thereof
will not reasonably add to the persuasiveness of
the evidence already on record. In this regard, it
bears stressing that under Section 6, Rule 113 of
the Revised Rules of Court:
SEC. 6. Power of the court to stop further evidence.
- The court may stop the introduction of further
testimony upon any particular point when the
evidence upon it is already so full that more
witnesses to the same point cannot be reasonably
expected to be additionally persuasive. But this
power should be exercised with caution. (emphasis
and italics supplied.)
Needless to state, the trial court can not be faulted
with lack of caution in denying respondents motion
considering that under the prevailing facts of the
case, respondent had more than ample
opportunity to adduce evidence in his defense.
Certainly, a party can not feign denial of due
process where he had the opportunity to present
his side.45 It must be borne in mind in this regard
that due process is not a monopoly of the defense.
Indeed, the State is entitled to due process as much
as the accused.46 Furthermore, while a litigation is
not a game of technicalities, it is a truism that every
case must be prosecuted in accordance with the
prescribed procedure to insure an orderly and
speedy administration of
47
justice. cräläwvirtualibräry
The use of discovery procedures is directed to the
sound discretion of the trial judge.48 The
deposition taking can not be based nor can it be
denied on flimsy reasons.49 Discretion has to be
exercised in a reasonable manner and in
consonance with the spirit of the law. There is no
indication in this case that in denying the motion of
respondent-accused, the trial judge acted in a
biased, arbitrary, capricious or oppressive manner.
Grave abuse of discretion x x x implies such
capricious, and whimsical exercise of judgment as
is equivalent to lack of jurisdiction, or, in other
words where the power is exercised in an arbitrary
and despotic manner by reason of passion or
personal hostility, and it must be so patent and
gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined
or to act all in contemplation of
law.50cräläwvirtualibräry
Certiorari as a special civil action can be availed of
only if there is concurrence of the essential
requisites, to wit: (a) the tribunal, board or officer
exercising judicial functions has acted without or in
excess of jurisdiction or with grave abuse of
discretion amounting to lack or in excess or
jurisdiction, and (b) there is no appeal, nor any
plain, speedy and adequate remedy in the ordinary
course of law for the purpose of annulling or
modifying the proceeding. There must be a
capricious, arbitrary and whimsical exercise of
power for it to prosper.51
To question the jurisdiction of the lower court or
the agency exercising judicial or quasi-judicial
functions, the remedy is a special civil action for
certiorari under Rule 65 of the Rules of Court. The
petitioner in such cases must clearly show that the
public respondent acted without jurisdiction or
with grave abuse of discretion amounting to lack or
excess of jurisdiction. Grave abuse of discretion
defies exact definition, but generally refers to
capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount
to an evasion of positive duty or 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 and hostility.
It has been held, however, that no grave abuse of
discretion may be attributed to a court simply
because of its alleged misappreciation of facts and
evidence. A writ of certiorari may not be used to
correct a lower tribunal's evaluation of the
evidence and factual findings. In other words, it is
not a remedy for mere errors of judgment, which
are correctible by an appeal or a petition for review
under Rule 45 of the Rules of Court.
In fine, certiorari will issue only to correct errors of
jurisdiction, not errors of procedure or mistakes in
the findings or conclusions of the lower court. As
long as a court acts within its jurisdiction, any
alleged errors committed in the exercise of its
discretion will amount to nothing more than errors
of judgment which are reviewable by timely appeal
and not by special civil action for certiorari. 52
Whether or not the respondent-accused has been
given ample opportunity to prove his innocence
and whether or not a further prolongation of
proceedings would be dilatory is addressed, in the
first instance, to the sound discretion of the trial
judge. If there has been no grave abuse of
discretion, only after conviction may this Court
examine such matters further. It is pointed out that
the defense has already presented at least fifty-
seven (57) witnesses and four hundred sixty-four
(464) documentary exhibits, many of them of the
exact nature as those to be produced or testified to
by the proposed foreign deponents. Under the
circumstances, We sustain the proposition that the
trial judge commits no grave abuse of discretion if
she decides that the evidence on the matter sought
to be proved in the United States could not possibly
add anything substantial to the defense evidence
involved. There is no showing or allegation that the
American public officers and the bicycle store
owner can identify respondent Hubert Webb as the
very person mentioned in the public and private
documents. Neither is it shown in this petition that
they know, of their own personal knowledge, a
person whom they can identify as the respondent-
accused who was actually present in the United
States and not in the Philippines on the specified
dates.
WHEREFORE, in view of all the foregoing, the
petition is hereby GRANTED. The Decision of the
Court of Appeals dated February 6, 1998 in CA-G.R.
SP No. 45399 is hereby REVERSED and SET ASIDE.
The Regional Trial Court of Paraaque City is ordered
to proceed posthaste in the trial of the main case
and to render judgment therein accordingly.
SO ORDERED.
G.R. No. 148965 February 26, 2002
JOSE "JINGGOY" E. ESTRADA, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF
THE PHILIPPINES and OFFICE OF THE
OMBUDSMAN, respondents.
DECISION
PUNO, J.:
A law may not be constitutionally infirm but its
application to a particular party may be
unconstitutional. This is the submission of the
petitioner who invokes the equal protection clause
of the Constitution in his bid to be excluded from
the charge of plunder filed against him by the
respondent Ombudsman.
The antecedent facts are as follows:
In November 2000, as an offshoot of the
impeachment proceedings against Joseph Ejercito
Estrada, then President of the Republic of the
Philippines, five criminal complaints against the
former President and members of his family, his
associates, friends and conspirators were filed with
the respondent Office of the Ombudsman.
On April 4, 2001, the respondent Ombudsman
issued a Joint Resolution1 finding probable cause
warranting the filing with the Sandiganbayan of
several criminal Informations against the former
President and the other respondents therein. One
of the Informations was for the crime of plunder
under Republic Act No. 7080 and among the
respondents was herein petitioner Jose "Jinggoy"
Estrada, then mayor of San Juan, Metro Manila.
The Information was amended and filed on April
18, 2001. Docketed as Criminal Case No. 26558, the
case was assigned to respondent Third Division of
the Sandiganbayan. The arraignment of the
accused was set on July 10, 2001 and no bail for
petitioner’s provisional liberty was fixed.
On April 24, 2001, petitioner filed a "Motion to
Quash or Suspend" the Amended Information on
the ground that the Anti-Plunder Law, R.A. No.
7080, is unconstitutional and that it charged more
than one offense. Respondent Ombudsman
opposed the motion.
On April 25, 2001, the respondent court issued a
warrant of arrest for petitioner and his co-accused.
On its basis, petitioner and his co-accused were
placed in custody of the law.
On April 30, 2001, petitioner filed a "Very Urgent
Omnibus Motion"2 alleging that: (1) no probable
cause exists to put him on trial and hold him liable
for plunder, it appearing that he was only allegedly
involved in illegal gambling and not in a "series or
combination of overt or criminal acts" as required
in R.A. No. 7080; and (2) he is entitled to bail as a
matter of right. Petitioner prayed that he be
excluded from the Amended Information and be
discharged from custody. In the alternative,
petitioner also prayed that he be allowed to post
bail in an amount to be fixed by respondent court. 3
On June 28, 2001, petitioner filed a "Motion to
Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To
Fix Bail On Grounds That An Outgoing Mayor Loses
Clout An Incumbent Has And That On Its Face, the
Facts Charged In The Information Do Not Make Out
A Non-Bailable Offense As To Him."4
On July 3, 2001, petitioner filed a "Motion to Strike
Out So-Called ‘Entry of Appearance,’ To Direct
Ombudsman To Explain Why He Attributes
Impropriety To The Defense And To Resolve
Pending Incidents."5
On July 9, 2001, respondent Sandiganbayan issued
a Resolution denying petitioner’s "Motion to Quash
and Suspend" and "Very Urgent Omnibus
Motion."6 Petitioner’s alternative prayer to post
bail was set for hearing after arraignment of all
accused. The court held:
"WHEREFORE, in view of the foregoing, the Court
hereby DENIES for lack of merit the following: (1)
MOTION TO QUASH AND SUSPEND dated April 24,
2001 filed by accused Jose ‘Jinggoy’ Estrada; (2)
MOTION TO QUASH dated June 7, 2001 filed by
accused Joseph Ejercito Estrada; and (3) MOTION
TO QUASH (Re: Amended Information dated 18
April 2001) dated June 26, 2001 filed by accused
Edward S. Serapio.
Considering the denial of the MOTION TO QUASH
AND SUSPEND of accused Jose ‘Jinggoy’ Estrada,
his VERY URGENT OMNIBUS MOTION, praying that
he be: (1) dropped from the information for
plunder for want of probable cause and (2)
discharged from custody immediately which is
based on the same grounds mentioned in this
MOTION TO QUASH AND SUSPEND is hereby
DENIED. Let his alternative prayer in said OMNIBUS
MOTION that he be allowed to post bail be SET for
hearing together with the petition for bail of
accused Edward S. Serapio scheduled for July 10,
2001, at 2:00 o’clock in the afternoon after the
arraignment of all the accused."7
The following day, July 10, 2001, petitioner moved
for reconsideration of the Resolution. Respondent
court denied the motion and proceeded to arraign
petitioner. Petitioner refused to make his plea
prompting respondent court to enter a plea of "not
guilty" for him.8
Hence, this petition. Petitioner claims that
respondent Sandiganbayan acted without or in
excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction in:
"1) not declaring that R.A. No. 7080 is
unconstitutional on its face and, as applied
to petitioner, and denying him the equal
protection of the laws;
2) not holding that the Plunder Law does
not provide complete and sufficient
standards;
3) sustaining the charge against petitioner
for alleged offenses, and with alleged
conspirators, with which and with whom he
is not even remotely connected - contrary
to the dictum that criminal liability is
personal, not vicarious - results in the
denial of substantive due process;
4) not fixing bail for petitioner for alleged
involvement in jueteng in one count of the
information which amounts to cruel and
unusual punishment totally in defiance of
the principle of proportionality."9
We shall resolve the arguments of petitioner in
seriatim.
I.
Petitioner contends that R.A. No. 7080 is
unconstitutional on its face and as applied to him
and denies him the equal protection of the laws. 10
The contention deserves our scant attention. The
constitutionality of R.A. No. 7080, the Anti-Plunder
Law, has been settled in the case of Estrada v.
Sandiganbayan.11 We take off from the Amended
Information which charged petitioner, together
with former President Joseph E. Estrada, Atty.
Edward Serapio, Charlie "Atong" Ang, Yolanda T.
Ricaforte and others, with the crime of plunder as
follows:
"AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-
Director, EPIB Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE PHILIPPINES,
Joseph Ejercito Estrada a.k.a. "ASIONG SALONGA"
AND a.k.a "JOSE VELARDE", together with Jose
‘Jinggoy’ Estrada, Charlie ‘Atong’ Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN
DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan
or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder,
defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed
as follows:
That during the period from June, 1998 to January,
2001, in the Philippines, and within the jurisdiction
of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PUBLIC OFFICER, BEING THEN THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
by
himself AND/OR in CONNIVANCE/CONSPIRACY wit
h his co-accused, WHO ARE MEMBERS OF HIS
FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there
wilfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate
amount OR TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS
AND SEVENTEEN CENTAVOS [P4,097,804,173.17],
more or less, THEREBY UNJUSTLY ENRICHING
HIMSELF OR THEMSELVES AT THE EXPENSE AND
TO THE DAMAGE OF THE FILIPINO PEOPLE AND
THE REPUBLIC OF THE PHILIPPINES, through ANY
OR A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:
(a) by receiving OR collecting, directly or
indirectly, on SEVERAL INSTANCES, MONEY
IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT,
SHARE, PERCENTAGE, KICKBACK OR ANY
FORM OF PECUNIARY BENEFIT, BY HIMSELF
AND/OR in connivance with co-
accused CHARLIE ‘ATONG’ ANG, Jose
‘Jinggoy’ Estrada, Yolanda T. Ricaforte,
Edward Serapio, AN (sic) JOHN DOES AND
JANE DOES, in consideration OF
TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;
(b) by DIVERTING, RECEIVING,
misappropriating,
converting OR misusing DIRECTLY OR
INDIRECTLY, for HIS OR THEIR
PERSONAL gain and benefit, public funds in
the amount of ONE HUNDRED THIRTY
MILLION PESOS [P130,000,000.00], more
or less, representing a portion of the TWO
HUNDRED MILLION PESOS
[P200,000,000] tobacco excise tax share
allocated for the Province of Ilocor Sur
under R.A. No. 7171, BY HIMSELF
AND/OR in CONNIVANCE with co-accused
Charlie ‘Atong’ Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos
Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE
DOES;
(c) by directing, ordering and
compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service
Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCK MORE OR
LESS, and the Social Security System
(SSS), 329,855,000 SHARES OF STOCK
MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE
OR LESS ONE BILLION ONE HUNDRED TWO
MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS
AND FIFTY CENTAVOS [P1,102,965,607.50]
AND MORE OR LESS SEVEN HUNDRED
FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED
FIFTY PESOS [P744,612,450.00],
RESPECTIVELY, OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY
SEVEN MILLION FIVE HUNDRED SEVENTY
EIGHT THOUSAND FIFTY SEVEN PESOS AND
FIFTY CENTAVOS [P1,847,578,057.50]; AND
BY COLLECTING OR RECEIVING, DIRECTLY
OR INDIRECTLY, BY HIMSELF AND/OR IN
CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY
REASON OF SAID PURCHASES OF SHARES
OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN
HUNDRED THOUSAND PESOS
[P189,700,000.00], MORE OR LESS, FROM
THE BELLE CORPORATION WHICH BECAME
PART OF THE DEPOSIT IN THE EQUITABLE-
PCI BANK UNDER THE ACCOUNT NAME
"JOSE VELARDE";
(d) by unjustly enriching himself FROM
COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM
OF PECUNIARY BENEFITS, IN CONNIVANCE
WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION
TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS
[P3,233,104,173.17] AND DEPOSITING THE
SAME UNDER HIS ACCOUNT NAME "JOSE
VELARDE" AT THE EQUITABLE-PCI BANK.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April
2001"12
Petitioner’s contention that R.A. No. 7080 is
unconstitutional as applied to him is principally
perched on the premise that the Amended
Information charged him with only one act or one
offense which cannot constitute plunder. He then
assails the denial of his right to bail.
Petitioner’s premise is patently false. A careful
examination of the Amended Information will
show that it is divided into three (3) parts: (1) the
first paragraph charges former President Joseph E.
Estrada with the crime of plunder together with
petitioner Jose "Jinggoy" Estrada, Charlie "Atong"
Ang, Edward Serapio, Yolanda Ricaforte and
others; (2) the second paragraph spells out in
general terms how the accused conspired in
committing the crime of plunder; and (3) the
following four sub-paragraphs (a) to (d) describe in
detail the predicate acts constitutive of the crime
of plunder pursuant to items (1) to (6) of R.A. No.
7080, and state the names of the accused who
committed each act.
Pertinent to the case at bar is the predicate act
alleged in sub-paragraph (a) of the Amended
Information which is of "receiving or collecting,
directly or indirectly, on several instances, money
in the aggregate amount of ₱545,000,000.00 for
illegal gambling in the form of gift, share,
percentage, kickback or any form of pecuniary
benefit x x x." In this sub-paragraph
(a), petitioner, in conspiracy with former President
Estrada, is charged with the act of receiving or
collecting money from illegal gambling amounting
to ₱545 million. Contrary to petitioner’s posture,
the allegation is that he received or collected
money from illegal gambling "on several
instances." The phrase "on several instances"
means the petitioner committed the predicate act
in series. To insist that the Amended Information
charged the petitioner with the commission of only
one act or offense despite the phrase "several
instances" is to indulge in a twisted, nay, "pretzel"
interpretation.
It matters little that sub-paragraph (a) did not
utilize the exact words "combination" or "series" as
they appear in R.A. No. 7080. For in Estrada v.
Sandiganbayan,13 we held that where these two
terms are to be taken in their popular, not
technical, meaning, the word "series" is
synonymous with the clause "on several
instances." "Series" refers to a repetition of the
same predicate act in any of the items in Section 1
(d) of the law. The word "combination"
contemplates the commission of at least any two
different predicate acts in any of said items. Plainly,
sub-paragraph (a) of the Amended Information
charges petitioner with plunder committed by a
series of the same predicate act under Section 1 (d)
(2) of the law.
Similarly misleading is petitioner’s stand that in the
Ombudsman Resolution of April 4, 2001 finding
probable cause to charge him with plunder
together with the other accused, he was alleged to
have received only the sum of P2 million, which
amount is way below the minimum of P50 million
required under R.A. No. 7080. The submission is
not borne out by the April 4, 2001 Resolution of the
Ombudsman, recommending the filing of charges
against petitioner and his co-accused, which in
pertinent part reads:
"x x x xxx xxx
Respondent Jose ‘Jinggoy’ Estrada, the present
Mayor of San Juan, Metro Manila, appears to have
also surreptitious collection of protection money
from jueteng operations in Bulacan. This is gleaned
from the statements of Gov. Singson himself and
the fact that Mayor Estrada, on at least two
occasions, turned over to a certain Emma Lim, an
emissary of the respondent governor, jueteng haul
totalling P2 million, i.e., P1 million in January, 2000
and another P1 million in February, 2000. An
alleged "listahan" of jueteng recipients listed him
as one "Jingle Bell," as affirmed by Singson [TSN 8
& Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]."14
Hence, contrary to the representations of the
petitioner, the Ombudsman made the finding that
P2 million was delivered to petitioner as "jueteng
haul" on "at least two occasions." The P2 million is,
therefore, not the entire sum with which
petitioner is specifically charged. This is further
confirmed by the conclusion of the Ombudsman
that:
"x x x xxx xxx
It is clear that Joseph Ejercito Estrada, in
confabulation with Jose ‘Jinggoy’ Estrada, Atty.
Edward Serapio and Yolanda Ricaforte, demanded
and received, as bribe money, the aggregate sum
of P545 million from jueteng collections of the
operators thereof, channeled thru Gov. Luis
‘Chavit’ Singson, in exchange for protection from
arrest or interference by law enforcers; x x x."15
To be sure, it is too late in the day for the petitioner
to argue that the Ombudsman failed to establish
any probable cause against him for plunder. The
respondent Sandiganbayan itself has found
probable cause against the petitioner for which
reason it issued a warrant of arrest against him.
Petitioner then underwent arraignment and is now
on trial. The time to assail the finding of probable
cause by the Ombudsman has long passed. The
issue cannot be resurrected in this petition.
II.
Next, petitioner contends that "the plunder law
does not provide sufficient and complete
standards to guide the courts in dealing with
accused alleged to have contributed to the
offense."16 Thus, he posits the following questions:
"For example, in an Information for plunder which
cites at least ten criminal acts, what penalty do we
impose on one who is clearly involved in only one
such criminal act? Is it reclusion perpetua? Or
should it be a lesser penalty? What if another
accused is shown to have participated in three of
the ten specifications, what would be the penalty
imposable, compared to one who may have been
involved in five or seven of the specifications? The
law does not provide the standard or specify the
penalties and the courts are left to guess. In other
words, the courts are called to say what the law is
rather than to apply what the lawmaker is
supposed to have intended."17
Petitioner raises these hypothetical questions for
he labors hard under the impression that: (1) he is
charged with only one act or offense and (2) he has
not conspired with the other accused named in
sub-paragraphs (b) to (d) of the Amended
Information, ergo, the penalty imposable on him
ought to be different from reclusion perpetua to
death. R.A. No. 7080, he bewails, is cloudy on the
imposable penalty on an accused similarly situated
as he is. Petitioner, however, overlooks that the
second paragraph of the Amended Information
charges him to have conspired with former
President Estrada in committing the crime of
plunder. His alleged participation consists in the
commission of the predicate acts specified in sub-
paragraph (a) of the Amended Information. If these
allegations are proven, the penalty of petitioner
cannot be unclear. It will be no different from that
of the former President for in conspiracy, the act of
one is the act of the other. The imposable penalty
is provided in Section 2 of R.A. No. 7080, viz:
"Section 2. Any public officer who, by himself or in
connivance with the members of his family,
relatives by affinity or consanguinity, business
associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or
criminal acts as described in Section 1(d) hereof in
the aggregate amount or total value of at least Fifty
million pesos (P50,000,000.00) shall be guilty of the
crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated
with the said public officer in the commission of an
offense contributing to the crime of plunder shall
likewise be punished for such offense. In the
imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal
Code, shall be considered by the court."
III.
Petitioner also faults the respondent
Sandiganbayan for "sustaining the charge against
petitioner for alleged offenses and with alleged
conspirators, with which and with whom he is not
even remotely connected – contrary to the dictum
that criminal liability is personal, not vicarious –
results in the denial of substantive due process." 18
The Solicitor General argues, on the other hand,
that petitioner is charged not only with the
predicate act in sub-paragraph (a) but also with the
other predicate acts in sub-paragraphs (b), (c) & (d)
because he is indicted as a principal and as co-
conspirator of the former President. This is
purportedly clear from the first and second
paragraphs of the Amended Information. 19
For better focus, there is a need to examine again
the allegations of the Amended Information vis-à-
vis the provisions of R.A. No. 7080.
The Amended Information, in its first two
paragraphs, charges petitioner and his other co-
accused with the crime of plunder. The first
paragraph names all the accused, while the second
paragraph describes in general how plunder was
committed and lays down most of the elements of
the crime itself. Sub-paragraphs (a) to (d) describe
in detail the predicate acts that constitute the
crime and name in particular the co-conspirators of
former President Estrada in each predicate act. The
predicate acts alleged in the said four sub-
paragraphs correspond to the items enumerated in
Section 1 (d) of R.A. No. 7080. Sub-paragraph (a)
alleged the predicate act of receiving, on several
instances, money from illegal gambling, in
consideration of toleration or protection of illegal
gambling, and expressly names petitioner as one of
those who conspired with former President
Estrada in committing the offense. This predicate
act corresponds with the offense described in item
[2] of the enumeration in Section 1 (d) of R.A. No.
7080. Sub-paragraph (b) alleged the predicate act
of diverting, receiving or misappropriating a
portion of the tobacco excise tax share allocated
for the province of Ilocos Sur, which act is the
offense described in item [1] in the enumeration in
Section 1 (d) of the law. This sub-paragraph does
not mention petitioner but instead names other
conspirators of the former President. Sub-
paragraph (c) alleged two predicate acts - that of
ordering the Government Service Insurance
System (GSIS) and the Social Security System (SSS)
to purchase shares of stock of Belle Corporation,
and collecting or receiving commissions from such
purchase from the Belle Corporation which
became part of the deposit in the "Jose Velarde"
account at the Equitable-PCI Bank. These two
predicate acts fall under items [2] and [3] in the
enumeration of R.A. No. 7080, and was allegedly
committed by the former President in connivance
with John Does and Jane Does. Finally, sub-
paragraph (d) alleged the predicate act that the
former President unjustly enriched himself from
commissions, gifts, kickbacks, in connivance with
John Does and Jane Does, and deposited the same
under his account name "Jose Velarde" at the
Equitable-PCI Bank. This act corresponds to the
offense under item [6] in the enumeration of
Section 1 (d) of R.A. No. 7080.
From the foregoing allegations of the Amended
Information, it is clear that all the accused named
in sub-paragraphs (a) to (d), thru their individual
acts, conspired with former President Estrada to
enable the latter to amass, accumulate or acquire
ill-gotten wealth in the aggregate amount of
P4,097,804,173.17. As the Amended Information is
worded, however, it is not certain whether the
accused in sub-paragraphs (a) to (d) conspired with
each other to enable the former President to
amass the subject ill-gotten wealth. In light of this
lack of clarity, petitioner cannot be penalized for
the conspiracy entered into by the other accused
with the former President as related in the second
paragraph of the Amended Information in relation
to its sub-paragraphs (b) to (d). We hold that
petitioner can be held accountable only for the
predicate acts he allegedly committed as related in
sub-paragraph (a) of the Amended Information
which were allegedly done in conspiracy with the
former President whose design was to amass ill-
gotten wealth amounting to more than P4 billion.
We hasten to add, however, that the respondent
Ombudsman cannot be faulted for including the
predicate acts alleged in sub-paragraphs (a) to (d)
of the Amended Information in one, and not in
four, separate Informations. A study of the history
of R.A. No. 7080 will show that the law was crafted
to avoid the mischief and folly of filing multiple
informations. The Anti-Plunder Law was enacted in
the aftermath of the Marcos regime where
charges of ill-gotten wealth were filed against
former President Marcos and his alleged
cronies. Government prosecutors found no
appropriate law to deal with the multitude and
magnitude of the acts allegedly committed by the
former President to acquire illegal wealth. 20 They
also found that under the then existing laws such
as the Anti-Graft and Corrupt Practices Act, the
Revised Penal Code and other special laws, the acts
involved different transactions, different time and
different personalities. Every transaction
constituted a separate crime and required a
separate case and the over-all conspiracy had to be
broken down into several criminal and graft
charges. The preparation of multiple Informations
was a legal nightmare but eventually, thirty-nine
(39) separate and independent cases were filed
against practically the same accused before the
Sandiganbayan.21 R.A. No. 7080 or the Anti-Plunder
Law22 was enacted precisely to address this
procedural problem. This is pellucid in the
Explanatory Note to Senate Bill No. 733, viz:
"Plunder, a term chosen from other equally apt
terminologies like kleptocracy and economic
treason, punishes the use of high office for
personal enrichment, committed thru a series of
acts done not in the public eye but in stealth and
secrecy over a period of time, that may involve so
many persons, here and abroad, and which touch
so many states and territorial units. The acts
and/or omissions sought to be penalized do not
involve simple cases of malversation of public
funds, bribery, extortion, theft and graft but
constitute plunder of an entire nation resulting in
material damage to the national economy. The
above-described crime does not yet exist in
Philippine statute books. Thus, the need to come
up with a legislation as a safeguard against the
possible recurrence of the depravities of the
previous regime and as a deterrent to those with
similar inclination to succumb to the corrupting
influence of power."
There is no denying the fact that the "plunder of an
entire nation resulting in material damage to the
national economy" is made up of a complex and
manifold network of crimes. In the crime of
plunder, therefore, different parties may be united
by a common purpose. In the case at bar, the
different accused and their different criminal acts
have a commonality—to help the former President
amass, accumulate or acquire ill-gotten wealth.
Sub-paragraphs (a) to (d) in the Amended
Information alleged the different participation of
each accused in the conspiracy. The gravamen of
the conspiracy charge, therefore, is not that each
accused agreed to receive protection money from
illegal gambling, that each misappropriated a
portion of the tobacco excise tax, that each
accused ordered the GSIS and SSS to purchase
shares of Belle Corporation and receive
commissions from such sale, nor that each unjustly
enriched himself from commissions, gifts and
kickbacks; rather, it is that each of them, by their
individual acts, agreed to participate, directly or
indirectly, in the amassing, accumulation and
acquisition of ill-gotten wealth of and/or for former
President Estrada.
In the American jurisdiction, the presence of
several accused in multiple conspiracies commonly
involves two structures: (1) the so-called "wheel"
or "circle" conspiracy, in which there is a single
person or group (the "hub") dealing individually
with two or more other persons or groups (the
"spokes"); and (2) the "chain" conspiracy, usually
involving the distribution of narcotics or other
contraband, in which there is successive
communication and cooperation in much the same
way as with legitimate business operations
between manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and
consumer.23
From a reading of the Amended Information, the
case at bar appears similar to a "wheel" conspiracy.
The hub is former President Estrada while the
spokes are all the accused, and the rim that
encloses the spokes is the common goal in the
overall conspiracy, i.e., the amassing, accumulation
and acquisition of ill-gotten wealth.
IV.
Some of our distinguished colleagues would
dismiss the charge against the petitioner on the
ground that the allegation of conspiracy in the
Amended Information is too general. The fear is
even expressed that it could serve as a net to
ensnare the innocent. Their dissents appear to be
inspired by American law and jurisprudence.
We should not confuse our law on conspiracy with
conspiracy in American criminal law and in
common law. Under Philippine law, conspiracy
should be understood on two levels. As a general
rule, conspiracy is not a crime in our jurisdiction. It
is punished as a crime only when the law fixes a
penalty for its commission such as in conspiracy to
commit treason, rebellion and sedition. In contrast,
under American criminal law, the agreement or
conspiracy itself is the gravamen of the
offense.24 The essence of conspiracy is the
combination of two or more persons, by concerted
action, to accomplish a criminal or unlawful
purpose, or some purpose not in itself criminal or
unlawful, by criminal or unlawful means.25 Its
elements are: agreement to accomplish an illegal
objective, coupled with one or more overt acts in
furtherance of the illegal purpose; and requisite
intent necessary to commit the underlying
substantive offense.26
A study of the United States Code ought to be
instructive. It principally punishes two (2) crimes of
conspiracy27 – conspiracy to commit any offense or
to defraud the United States, and conspiracy to
impede or injure officer. Conspiracy to commit
offense or to defraud the United States is penalized
under 18 U.S.C. Sec. 371,28 as follows:
"Sec. 371. Conspiracy to commit offense or to
defraud the United States. If two or more persons
conspire either to commit any offense against the
United States, or to defraud the United States, or
any agency thereof in any manner or for any
purpose, and one or more of such persons to any
act to effect the object of the conspiracy, each shall
be fined not more than $10,000 or imprisoned not
more than five years, or both.
If, however, the offense, the commission of which
is the object of the conspiracy, is a misdemeanor
only, the punishment for such conspiracy shall not
exceed the maximum punishment provided for
such misdemeanor."
Conspiracy to impede or injure officer is penalized
under 18 U.S.C. Sec. 372, viz:
"Sec. 372. Conspiracy to impede or injure officer. If
two or more persons in any State, Territory,
Possession, or District conspire to prevent, by
force, intimidation, or threat, any person from
accepting or holding any office, trust or place of
confidence under the United States, or from
discharging any duties thereof, or to induce by like
means any officer of the United States to leave the
place, where his duties as an officer are required to
be performed, or to injure him in his person or
property on account of his lawful discharge of the
duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to
molest, interrupt, hinder, or impede him in the
discharge of his official duties, each of such persons
shall be fined not more than $5,000 or imprisoned
not more than six years, or both."
Section 371 of 18 U.S.C. punishes two acts: (1)
conspiracy to commit any offense against the
United States; and (2) conspiracy to defraud the
United States or any agency thereof. The
conspiracy to "commit any offense against the
United States" refers to an act made a crime by
federal laws.29 It refers to an act punished by
statute.30 Undoubtedly, Section 371 runs the
whole gamut of U.S. Federal laws, whether criminal
or regulatory.31 These laws cover criminal offenses
such as perjury, white slave traffic, racketeering,
gambling, arson, murder, theft, bank robbery, etc.
and also include customs violations, counterfeiting
of currency, copyright violations, mail fraud,
lotteries, violations of antitrust laws and laws
governing interstate commerce and other areas of
federal regulation.32 Section 371 penalizes the
conspiracy to commit any of these substantive
offenses. The offense of conspiracy is generally
separate and distinct from the substantive
offense,33 hence, the court rulings that acquittal on
the substantive count does not foreclose
prosecution and conviction for related
conspiracy.34
The conspiracy to "defraud the government" refers
primarily to cheating the United States out of
property or money. It also covers interference with
or obstruction of its lawful governmental functions
by deceit, craft or trickery, or at least by means that
are dishonest.35 It comprehends defrauding the
United States in any manner whatever, whether
the fraud be declared criminal or not. 36
The basic difference in the concept of
conspiracy notwithstanding, a study of the
American case law on how conspiracy should be
alleged will reveal that it is not necessary for the
indictment to include particularities of time, place,
circumstances or causes, in stating the manner and
means of effecting the object of the
conspiracy. Such specificity of detail falls within the
scope of a bill of particulars.37 An indictment for
conspiracy is sufficient where it alleges: (1) the
agreement; (2) the offense-object toward which
the agreement was directed; and (3) the overt acts
performed in furtherance of the agreement. 38 To
allege that the defendants conspired is, at least, to
state that they agreed to do the matters which are
set forth as the substance of their conspiracy. To
allege a conspiracy is to allege an agreement. 39 The
gist of the crime of conspiracy is unlawful
agreement, and where conspiracy is charged, it is
not necessary to set out the criminal object with as
great a certainty as is required in cases where such
object is charged as a substantive offense. 40
In sum, therefore, there is hardly a substantial
difference on how Philippine courts and American
courts deal with cases challenging Informations
alleging conspiracy on the ground that they lack
particularities of time, place, circumstances or
causes. In our jurisdiction, as aforestated,
conspiracy can be alleged in the Information as a
mode of committing a crime or it may be alleged as
constitutive of the crime itself. When conspiracy is
alleged as a crime in itself, the sufficiency of the
allegations in the Information charging the offense
is governed by Section 6, Rule 110 of the Revised
Rules of Criminal Procedure. It requires that the
information for this crime must contain the
following averments:
"Sec. 6. Sufficiency of complaint or information.- A
complaint or information is sufficient if it states the
name of the accused, the designation of the
offense given by the statute; the acts or omissions
complained of as constituting the offense; the
name of the offended party; the approximate date
of the commission of the offense; and the place
where the offense was committed.
When the offense was committed by more than
one person, all of them shall be included in the
complaint or information."
The complaint or information to be sufficient must
state the name of the accused, designate the
offense given by statute, state the acts or
omissions constituting the offense, the name of
the offended party, the approximate date of the
commission of the offense and the place where the
offense was committed.
Our rulings have long settled the issue on how the
acts or omissions constituting the offense should
be made in order to meet the standard of
sufficiency. Thus, the offense must be designated
by its name given by statute or by reference to the
section or subsection of the statute punishing
it.41 The information must also state the acts or
omissions constituting the offense, and specify its
qualifying and aggravating circumstances.42 The
acts or omissions complained of must be alleged in
such form as is sufficient to enable a person of
common understanding to know what offense is
intended to be charged, and enable the court to
pronounce proper judgment.43 No information for
a crime will be sufficient if it does not accurately
and clearly allege the elements of the crime
charged.44 Every element of the offense must be
stated in the information.45 What facts and
circumstances are necessary to be included therein
must be determined by reference to the definitions
and essentials of the specified crimes. 46 The
requirement of alleging the elements of a crime in
the information is to inform the accused of the
nature of the accusation against him so as to
enable him to suitably prepare his defense. The
presumption is that the accused has no
independent knowledge of the facts that
constitute the offense.47
To reiterate, when conspiracy is charged as a
crime, the act of conspiring and all the elements of
said crime must be set forth in the complaint or
information. For example, the crime of "conspiracy
to commit treason" is committed when, in time of
war, two or more persons come to an agreement
to levy war against the Government or to adhere to
the enemies and to give them aid or comfort, and
decide to commit it.48 The elements of this crime
are: (1) that the offender owes allegiance to the
Government of the Philippines; (2) that there is a
war in which the Philippines is involved; (3) that the
offender and other person or persons come to an
agreement to: (a) levy war against the government,
or (b) adhere to the enemies, to give them aid and
comfort; and (4) that the offender and other
person or persons decide to carry out the
agreement. These elements must be alleged in the
information.
The requirements on sufficiency of allegations are
different when conspiracy is not charged as a crime
in itself but only as the mode of committing the
crime as in the case at bar. There is less
necessity of reciting its particularities in the
Information because conspiracy is not the
gravamen of the offense charged. The conspiracy
is significant only because it changes the criminal
liability of all the accused in the conspiracy and
makes them answerable as co-principals regardless
of the degree of their participation in the
crime.49 The liability of the conspirators is collective
and each participant will be equally responsible for
the acts of others,50 for the act of one is the act of
all.51 In People v. Quitlong,52 we ruled on
how conspiracy as the mode of committing the
offense should be alleged in the Information, viz:
"x x x. In embodying the essential elements of the
crime charged, the information must set forth the
facts and circumstances that have a bearing on the
culpability and liability of the accused so that the
accused can properly prepare for and undertake
his defense. One such fact or circumstance in a
complaint against two or more accused persons is
that of conspiracy. Quite unlike the omission of an
ordinary recital of fact which, if not excepted from
or objected to during trial, may be corrected or
supplied by competent proof, an allegation,
however, of conspiracy, or one that would impute
criminal liability to an accused for the act of
another or others, is indispensable in order to hold
such person, regardless of the nature and extent of
his own participation, equally guilty with the other
or others in the commission of the crime. Where
conspiracy exists and can rightly be appreciated,
the individual acts done to perpetrate the felony
becomes of secondary importance, the act of one
being imputable to all the others (People v. Ilano,
313 SCRA 442). Verily, an accused must know from
the information whether he faces a criminal
responsibility not only for his acts but also for the
acts of his co-accused as well.
A conspiracy indictment need not, of course, aver
all the components of conspiracy or allege all the
details thereof, like the part that each of the parties
therein have performed, the evidence proving the
common design or the facts connecting all the
accused with one another in the web of the
conspiracy. Neither is it necessary to describe
conspiracy with the same degree of particularity
required in describing a substantive offense. It is
enough that the indictment contains a statement
of facts relied upon to be constitutive of the
offense in ordinary and concise language, with as
much certainty as the nature of the case will admit,
in a manner that can enable a person of common
understanding to know what is intended, and with
such precision that the accused may plead his
acquittal or conviction to a subsequent indictment
based on the same facts. It is said, generally, that
an indictment may be held sufficient "if it follows
the words of the statute and reasonably informs
the accused of the character of the offense he is
charged with conspiring to commit, or, following
the language of the statute, contains a sufficient
statement of an overt act to effect the object of the
conspiracy, or alleges both the conspiracy and the
contemplated crime in the language of the
respective statutes defining them (15A C.J.S. 842-
844).
xxx xxx xxx
x x x. Conspiracy arises when two or more persons
come to an agreement concerning the commission
of a felony and decide to commit it. Conspiracy
comes to life at the very instant the plotters agree,
expressly or impliedly, to commit the felony and
forthwith to actually pursue it. Verily, the
information must state that the accused have
confederated to commit the crime or that there
has been a community of design, a unity of purpose
or an agreement to commit the felony among the
accused. Such an allegation, in the absence of the
usual usage of the words "conspired" or
"confederated" or the phrase "acting in
conspiracy," must aptly appear in the information
in the form of definitive acts constituting
conspiracy. In fine, the agreement to commit the
crime, the unity of purpose or the community of
design among the accused must be conveyed such
as either by the use of the term "conspire" or its
derivatives and synonyms or by allegations of basic
facts constituting the conspiracy. Conspiracy must
be alleged, not just inferred, in the information on
which basis an accused can aptly enter his plea, a
matter that is not to be confused with or likened to
the adequacy of evidence that may be required to
prove it. In establishing conspiracy when properly
alleged, the evidence to support it need not
necessarily be shown by direct proof but may
be inferred from shown acts and conduct of the
accused.
xxx xxx x x x."
Again, following the stream of our own
jurisprudence, it is enough to allege conspiracy as
a mode in the commission of an offense in either
of the following manner: (1) by use of the word
"conspire," or its derivatives or synonyms, such as
confederate, connive, collude, etc; 53 or (2) by
allegations of basic facts constituting the
conspiracy in a manner that a person of common
understanding would know what is intended, and
with such precision as would enable the accused to
competently enter a plea to a subsequent
indictment based on the same facts.54
The allegation of conspiracy in the information
must not be confused with the adequacy of
evidence that may be required to prove it. A
conspiracy is proved by evidence of actual
cooperation; of acts indicative of an agreement, a
common purpose or design, a concerted action or
concurrence of sentiments to commit the felony
and actually pursue it.55 A statement of this
evidence is not necessary in the information.
In the case at bar, the second paragraph of the
Amended Information alleged in general terms
how the accused committed the crime of
plunder. It used the words "in
connivance/conspiracy with his co-accused."
Following the ruling in Quitlong, these words are
sufficient to allege the conspiracy of the accused
with the former President in committing the crime
of plunder.
V.
We now come to petitioner’s plea for bail. On
August 14, 2002, during the pendency of the
instant petition before this Court, petitioner filed
with respondent Sandiganbayan an "Urgent
Second Motion for Bail for Medical Reasons."
Petitioner prayed that he be allowed to post bail
due to his serious medical condition which is life-
threatening to him if he goes back to his place of
detention.1âwphi1 The motion was opposed by
respondent Ombudsman to which petitioner
replied.
For three days, i.e., on September 4, 20 and 27,
2001, respondent Sandiganbayan conducted
hearings on the motion for bail. Dr. Roberto V.
Anastacio, a cardiologist of the Makati Medical
Center, testified as sole witness for petitioner.
On December 18, 2001, petitioner filed with the
Supreme Court an "Urgent Motion for
Early/Immediate Resolution of Jose ‘Jinggoy’
Estrada’s Petition for Bail on
Medical/Humanitarian Considerations." Petitioner
reiterated the motion for bail he earlier filed with
respondent Sandiganbayan.56
On the same day, we issued a Resolution referring
the motion to respondent Sandiganbayan for
resolution and requiring said court to make a
report, not later than 8:30 in the morning of
December 21, 2001.
On December 21, 2001, respondent court
submitted its Report. Attached to the Report was
its Resolution dated December 20, 2001 denying
petitioner’s motion for bail for "lack of factual
basis."57 Basing its finding on the earlier testimony
of Dr. Anastacio, the Sandiganbayan found that
petitioner "failed to submit sufficient evidence to
convince the court that the medical condition of
the accused requires that he be confined at home
and for that purpose that he be allowed to post
bail."58
The crime of plunder is punished by R.A. No. 7080,
as amended by Section 12 of R.A. No. 7659, with
the penalty of reclusion perpetua to death. Under
our Rules, offenses punishable by death, reclusion
perpetua or life imprisonment are non-bailable
when the evidence of guilt is strong, to wit:
"Sec. 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."59
Section 7, Rule 114 of the Revised Rules of Criminal
Procedure is based on Section 13, Article III of the
1987 Constitution which reads:
"Sec. 13. 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."
The constitutional mandate makes the grant or
denial of bail in capital offenses hinge on the issue
of whether or not the evidence of guilt of the
accused is strong. This requires that the trial court
conduct bail hearings wherein both the
prosecution and the defense are afforded
sufficient opportunity to present their respective
evidence. The burden of proof lies with the
prosecution to show strong evidence of guilt. 60
This Court is not in a position to grant bail to the
petitioner as the matter requires evidentiary
hearing that should be conducted by the
Sandiganbayan. The hearings on which respondent
court based its Resolution of December 20, 2001
involved the reception of medical evidence only
and which evidence was given in September 2001,
five months ago. The records do not show that
evidence on petitioner’s guilt was presented
before the lower court.
Upon proper motion of the petitioner, respondent
Sandiganbayan should conduct hearings to
determine if the evidence of petitioner’s guilt is
strong as to warrant the granting of bail to
petitioner.
IN VIEW WHEREOF, the petition is dismissed for
failure to show that the respondent Sandiganbayan
acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack of
jurisdiction.
SO ORDERED.
G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO
ABELARDO, AND GENEROSO
OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE
FERMO, AND OTHERS AS JOHN
DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the
Commission on Human Rights ("CHR") is again
placed into focus in this petition for prohibition,
with prayer for a restraining order and preliminary
injunction. The petitioners ask us to prohibit public
respondent CHR from further hearing and
investigating CHR Case No. 90-1580, entitled
"Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice,"
dated 9 July 1990, signed by Carlos Quimpo (one of
the petitioners) in his capacity as an Executive
Officer of the Quezon City Integrated Hawkers
Management Council under the Office of the City
Mayor, was sent to, and received by, the private
respondents (being the officers and members of
the North EDSA Vendors Association,
Incorporated). In said notice, the respondents
were given a grace-period of three (3) days (up to
12 July 1990) within which to vacate the
questioned premises of North EDSA.1 Prior to their
receipt of the demolition notice, the private
respondents were informed by petitioner Quimpo
that their stalls should be removed to give way to
the "People's Park".2 On 12 July 1990, the group,
led by their President Roque Fermo, filed a letter-
complaint (Pinag-samang Sinumpaang Salaysay)
with the CHR against the petitioners, asking the
late CHR Chairman Mary Concepcion Bautista for a
letter to be addressed to then Mayor Brigido
Simon, Jr., of Quezon City to stop the demolition of
the private respondents' stalls, sari-sari stores,
and carinderia along North EDSA. The complaint
was docketed as CHR Case No. 90-1580.3 On 23
July 1990, the CHR issued an Order, directing the
petitioners "to desist from demolishing the stalls
and shanties at North EDSA pending resolution of
the vendors/squatters' complaint before the
Commission" and ordering said petitioners to
appear before the CHR.4
On the basis of the sworn statements submitted by
the private respondents on 31 July 1990, as well as
CHR's own ocular inspection, and convinced that
on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-
sari stores and carinderia,5 the CHR, in its
resolution of 1 August 1990, ordered the
disbursement of financial assistance of not more
than P200,000.00 in favor of the private
respondents to purchase light housing materials
and food under the Commission's supervision and
again directed the petitioners to "desist from
further demolition, with the warning that violation
of said order would lead to a citation for contempt
and arrest."6
A motion to dismiss,7 dated 10 September 1990,
questioned CHR's jurisdiction. The motion also
averred, among other things, that:
1. this case came about due to the alleged
violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement
whereby Metro-Manila Mayors agreed on
a moratorium in the demolition of the
dwellings of poor dwellers in Metro-
Manila;
 xxx xxx xxx
3. . . . , a perusal of the said Agreement
(revealed) that the moratorium referred
to therein refers to moratorium in the
demolition of the structures of poor
dwellers;
4. that the complainants in this case
(were) not poor dwellers but independent
business entrepreneurs even this
Honorable Office admitted in its
resolution of 1 August 1990 that the
complainants are indeed, vendors;
5. that the complainants (were) occupying
government land, particularly the
sidewalk of EDSA corner North Avenue,
Quezon City; . . . and
6. that the City Mayor of Quezon City
(had) the sole and exclusive discretion and
authority whether or not a certain
business establishment (should) be
allowed to operate within the jurisdiction
of Quezon City, to revoke or cancel a
permit, if already issued, upon grounds
clearly specified by law and ordinance.8
During the 12 September 1990 hearing, the
petitioners moved for postponement, arguing that
the motion to dismiss set for 21 September 1990
had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the
courts.
On 18 September 1990 a supplemental motion to
dismiss was filed by the petitioners, stating that the
Commission's authority should be understood as
being confined only to the investigation of
violations of civil and political rights, and that "the
rights allegedly violated in this case (were) not civil
and political rights, (but) their privilege to engage
in business."9
On 21 September 1990, the motion to dismiss was
heard and submitted for resolution, along with the
contempt charge that had meantime been filed by
the private respondents, albeit vigorously objected
to by petitioners (on the ground that the motion to
dismiss was still then unresolved).10
In an Order,11 dated 25 September 1990, the CHR
cited the petitioners in contempt for carrying out
the demolition of the stalls, sari-sari stores
and carinderia despite the "order to desist", and it
imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order,
denying petitioners' motion to dismiss and
supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights
under its constitutional mandate had
jurisdiction over the complaint filed by the
squatters-vendors who complained of the
gross violations of their human and
constitutional rights. The motion to
dismiss should be and is hereby DENIED
for lack of merit.13
The CHR opined that "it was not the intention of
the (Constitutional) Commission to create only a
paper tiger limited only to investigating civil and
political rights, but it (should) be (considered) a
quasi-judicial body with the power to provide
appropriate legal measures for the protection of
human rights of all persons within the Philippines .
. . ." It added:
The right to earn a living is a right essential
to one's right to development, to life and
to dignity. All these brazenly and violently
ignored and trampled upon by
respondents with little regard at the same
time for the basic rights of women and
children, and their health, safety and
welfare. Their actions have
psychologically scarred and traumatized
the children, who were witness and
exposed to such a violent demonstration
of Man's inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners'
motion for reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our
resolution15 of 25 June 1991; it was subsequently
reinstated, however, in our resolution 16 of 18 June
1991, in which we also issued a temporary
restraining order, directing the CHR to "CEASE and
DESIST from further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has
jurisdiction:
a) to investigate the alleged violations of the
"business rights" of the private respondents whose
stalls were demolished by the petitioners at the
instance and authority given by the Mayor of
Quezon City;
b) to impose the fine of P500.00 each on the
petitioners; and
c) to disburse the amount of P200,000.00 as
financial aid to the vendors affected by the
demolition.
In the Court's resolution of 10 October 1991, the
Solicitor-General was excused from filing his
comment for public respondent CHR. The latter
thus filed its own comment,18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also
resolved to dispense with the comment of private
respondent Roque Fermo, who had since failed to
comply with the resolution, dated 18 July 1991,
requiring such comment.
The petition has merit.
The Commission on Human Rights was created by
the 1987
Constitution.19 It was formally constituted by then
President Corazon Aquino via Executive Order No.
163,20 issued on 5 May 1987, in the exercise of her
legislative power at the time. It succeeded, but so
superseded as well, the Presidential Committee on
Human Rights.21
The powers and functions22of the Commission are
defined by the 1987 Constitution, thus: to —
(1) Investigate, on its own or on complaint
by any party, all forms of human rights
violations involving civil and political
rights;
(2) Adopt its operational guidelines and
rules of procedure, and cite for contempt
for violations thereof in accordance with
the Rules of Court;
(3) Provide appropriate legal measures for
the protection of human rights of all
persons within the Philippines, as well as
Filipinos residing abroad, and provide for
preventive measures and legal aid
services to the underprivileged whose
human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails,
prisons, or detention facilities;
(5) Establish a continuing program of
research, education, and information to
enhance respect for the primacy of
human rights;
(6) Recommend to the Congress effective
measures to promote human rights and to
provide for compensation to victims of
violations of human rights, or their
families;
(7) Monitor the Philippine Government's
compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to
any person whose testimony or whose
possession of documents or other
evidence is necessary or convenient to
determine the truth in any investigation
conducted by it or under its authority;
(9) Request the assistance of any
department, bureau, office, or agency in
the performance of its functions;
(10) Appoint its officers and employees in
accordance with law; and
(11) Perform such other duties and
functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners'
motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional
Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore
been shared by this Court. In Cariño v. Commission
on Human Rights,24 the Court, through then
Associate Justice, now Chief Justice Andres
Narvasa, has observed that it is "only the first of the
enumerated powers and functions that bears any
resemblance to adjudication or adjudgment," but
that resemblance can in no way be synonymous to
the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . .
. was not meant by the fundamental law
to be another court or quasi-judicial
agency in this country, or duplicate much
less take over the functions of the latter.
The most that may be conceded to the
Commission in the way of adjudicative
power is that it may investigate, i.e.,
receive evidence and make findings of fact
as regards claimed human rights
violations involving civil and political
rights. But fact finding is not adjudication,
and cannot be likened to the judicial
function of a court of justice, or even a
quasi-judicial agency or official. The
function of receiving evidence and
ascertaining therefrom the facts of a
controversy is not a judicial function,
properly speaking. To be considered such,
the faculty of receiving evidence and
making factual conclusions in a
controversy must be accompanied by the
authority of applying the law to those
factual conclusions to the end that the
controversy may be decided or
determined authoritatively, finally and
definitively, subject to such appeals or
modes of review as may be provided by
law. This function, to repeat, the
Commission does not have.
After thus laying down at the outset the above rule,
we now proceed to the other kernel of this
controversy and, its is, to determine the extent of
CHR's investigative power.
It can hardly be disputed that the phrase "human
rights" is so generic a term that any attempt to
define it, albeit not a few have tried, could at best
be described as inconclusive. Let us observe. In a
symposium on human rights in the Philippines,
sponsored by the University of the Philippines in
1977, one of the questions that has been
propounded is "(w)hat do you understand by
"human rights?" The participants, representing
different sectors of the society, have given the
following varied answers:
Human rights are the basic rights which
inhere in man by virtue of his humanity.
They are the same in all parts of the world,
whether the Philippines or England, Kenya
or the Soviet Union, the United States or
Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as
the right to life, liberty, and property;
freedom of speech, of the press, of
religion, academic freedom, and the rights
of the accused to due process of law;
political rights, such as the right to elect
public officials, to be elected to public
office, and to form political associations
and engage in politics; and social rights,
such as the right to an education,
employment, and social services.25
Human rights are the entitlement that
inhere in the individual person from the
sheer fact of his humanity. . . . Because
they are inherent, human rights are not
granted by the State but can only be
recognized and protected by it.26
(Human rights include all) the civil,
political, economic, social, and cultural
rights defined in the Universal Declaration
of Human Rights.27
Human rights are rights that pertain to
man simply because he is human. They
are part of his natural birth, right, innate
and inalienable.28
The Universal Declaration of Human Rights, as well
as, or more specifically, the International Covenant
on Economic, Social and Cultural Rights and
International Covenant on Civil and Political Rights,
suggests that the scope of human rights can be
understood to include those that relate to an
individual's social, economic, cultural, political and
civil relations. It thus seems to closely identify the
term to the universally accepted traits and
attributes of an individual, along with what is
generally considered to be his inherent and
inalienable rights, encompassing almost all aspects
of life.
Have these broad concepts been equally
contemplated by the framers of our 1986
Constitutional Commission in adopting the specific
provisions on human rights and in creating an
independent commission to safeguard these
rights? It may of value to look back at the country's
experience under the martial law regime which
may have, in fact, impelled the inclusions of those
provisions in our fundamental law. Many voices
have been heard. Among those voices, aptly
represented perhaps of the sentiments expressed
by others, comes from Mr. Justice J.B.L. Reyes, a
respected jurist and an advocate of civil liberties,
who, in his paper, entitled "Present State of Human
Rights in the Philippines,"29 observes:
But while the Constitution of 1935 and
that of 1973 enshrined in their Bill of
Rights most of the human rights
expressed in the International Covenant,
these rights became unavailable upon the
proclamation of Martial Law on 21
September 1972. Arbitrary action then
became the rule. Individuals by the
thousands became subject to arrest upon
suspicion, and were detained and held for
indefinite periods, sometimes for years,
without charges, until ordered released by
the Commander-in-Chief or this
representative. The right to petition for
the redress of grievances became useless,
since group actions were forbidden. So
were strikes. Press and other mass media
were subjected to censorship and short
term licensing. Martial law brought with it
the suspension of the writ of habeas
corpus, and judges lost independence and
security of tenure, except members of the
Supreme Court. They were required to
submit letters of resignation and were
dismissed upon the acceptance thereof.
Torture to extort confessions were
practiced as declared by international
bodies like Amnesty International and the
International Commission of Jurists.
Converging our attention to the records of
the Constitutional Commission, we can
see the following discussions during its 26
August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR)
task must be made clear in view of the
importance of human rights and also
because civil and political rights have been
determined by many international
covenants and human rights legislations in
the Philippines, as well as the
Constitution, specifically the Bill of Rights
and subsequent legislation. Otherwise, if
we cover such a wide territory in area, we
might diffuse its impact and the precise
nature of its task, hence, its effectivity
would also be curtailed.
So, it is important to delienate the
parameters of its tasks so that the
commission can be most effective.
MR. BENGZON. That is precisely my
difficulty because civil and political rights
are very broad. The Article on the Bill of
Rights covers civil and political rights.
Every single right of an individual involves
his civil right or his political right. So,
where do we draw the line?
MR. GARCIA. Actually, these civil and
political rights have been made clear in
the language of human rights advocates,
as well as in the Universal Declaration of
Human Rights which addresses a number
of articles on the right to life, the right
against torture, the right to fair and public
hearing, and so on. These are very specific
rights that are considered enshrined in
many international documents and legal
instruments as constituting civil and
political rights, and these are precisely
what we want to defend here.
MR. BENGZON. So, would the
commissioner say civil and political rights
as defined in the Universal Declaration of
Human Rights?
MR. GARCIA. Yes, and as I have
mentioned, the International Covenant of
Civil and Political Rights distinguished this
right against torture.
MR. BENGZON. So as to distinguish this
from the other rights that we have?
MR. GARCIA. Yes, because the other rights
will encompass social and economic
rights, and there are other violations of
rights of citizens which can be addressed
to the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the
commission to define its functions, and,
therefore, in doing that the commission
will be authorized to take under its wings
cases which perhaps heretofore or at this
moment are under the jurisdiction of the
ordinary investigative and prosecutorial
agencies of the government. Am I correct?
MR. GARCIA. No. We have already
mentioned earlier that we would like to
define the specific parameters which
cover civil and political rights as covered
by the international standards governing
the behavior of governments regarding
the particular political and civil rights of
citizens, especially of political detainees or
prisoners. This particular aspect we have
experienced during martial law which we
would now like to safeguard.
MR. BENGZON. Then, I go back to that
question that I had. Therefore, what we
are really trying to say is, perhaps, at the
proper time we could specify all those
rights stated in the Universal Declaration
of Human Rights and defined as human
rights. Those are the rights that we
envision here?
MR. GARCIA. Yes. In fact, they are also
enshrined in the Bill of Rights of our
Constitution. They are integral parts of
that.
MR. BENGZON. Therefore, is the
Gentleman saying that all the rights under
the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain
to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the
discussion on the scope of human rights, I
would like to state that in the past regime,
everytime we invoke the violation of
human rights, the Marcos regime came
out with the defense that, as a matter of
fact, they had defended the rights of
people to decent living, food, decent
housing and a life consistent with human
dignity.
So, I think we should really limit the
definition of human rights to political
rights. Is that the sense of the committee,
so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and
respond also to repeated points raised by
the previous speaker.
There are actually six areas where this
Commission on Human Rights could act
effectively: 1) protection of rights of
political detainees; 2) treatment of
prisoners and the prevention of tortures;
3) fair and public trials; 4) cases of
disappearances; 5) salvagings and
hamletting; and 6) other crimes
committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona
is recognized.
MR. GUINGONA. Thank You Madam
President.
I would like to start by saying that I agree
with Commissioner Garcia that we
should, in order to make the proposed
Commission more effective, delimit as
much as possible, without prejudice to
future expansion. The coverage of the
concept and jurisdictional area of the
term "human rights". I was actually
disturbed this morning when the
reference was made without qualification
to the rights embodied in the universal
Declaration of Human Rights, although
later on, this was qualified to refer to civil
and political rights contained therein.
If I remember correctly, Madam
President, Commissioner Garcia, after
mentioning the Universal Declaration of
Human Rights of 1948, mentioned or
linked the concept of human right with
other human rights specified in other
convention which I do not remember. Am
I correct?
MR. GARCIA. Is Commissioner Guingona
referring to the Declaration of Torture of
1985?
MR. GUINGONA. I do not know, but the
commissioner mentioned another.
MR. GARCIA. Madam President, the other
one is the International Convention on
Civil and Political Rights of which we are
signatory.
MR. GUINGONA. I see. The only problem
is that, although I have a copy of the
Universal Declaration of Human Rights
here, I do not have a copy of the other
covenant mentioned. It is quite possible
that there are rights specified in that other
convention which may not be specified
here. I was wondering whether it would
be wise to link our concept of human
rights to general terms like "convention,"
rather than specify the rights contained in
the convention.
As far as the Universal Declaration of
Human Rights is concerned, the
Committee, before the period of
amendments, could specify to us which of
these articles in the Declaration will fall
within the concept of civil and political
rights, not for the purpose of including
these in the proposed constitutional
article, but to give the sense of the
Commission as to what human rights
would be included, without prejudice to
expansion later on, if the need arises. For
example, there was no definite reply to
the question of Commissioner Regalado
as to whether the right to marry would be
considered a civil or a social right. It is not
a civil right?
MR. GARCIA. Madam President, I have to
repeat the various specific civil and
political rights that we felt must be
envisioned initially by this provision —
freedom from political detention and
arrest prevention of torture, right to fair
and public trials, as well as crimes
involving disappearance, salvagings,
hamlettings and collective violations. So, it
is limited to politically related crimes
precisely to protect the civil and political
rights of a specific group of individuals,
and therefore, we are not opening it up to
all of the definite areas.
MR. GUINGONA. Correct. Therefore, just
for the record, the Gentlemen is no longer
linking his concept or the concept of the
Committee on Human Rights with the so-
called civil or political rights as contained
in the Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned earlier
the Universal Declaration of Human
Rights, I was referring to an international
instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we
will refer to each and every specific article
therein, but only to those that pertain to
the civil and politically related, as we
understand it in this Commission on
Human Rights.
MR. GUINGONA. Madam President, I am
not even clear as to the distinction
between civil and social rights.
MR. GARCIA. There are two international
covenants: the International Covenant
and Civil and Political Rights and the
International Covenant on Economic,
Social and Cultural Rights. The second
covenant contains all the different rights-
the rights of labor to organize, the right to
education, housing, shelter, et cetera.
 MR. GUINGONA. So we are just limiting at
the moment the sense of the committee
to those that the Gentlemen has
specified.
MR. GARCIA. Yes, to civil and political
rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the
standpoint of the victims of human rights,
I cannot stress more on how much we
need a Commission on Human Rights. . . .
. . . human rights victims are usually
penniless. They cannot pay and very few
lawyers will accept clients who do not pay.
And so, they are the ones more abused
and oppressed. Another reason is, the
cases involved are very delicate — torture,
salvaging, picking up without any warrant
of arrest, massacre — and the persons
who are allegedly guilty are people in
power like politicians, men in the military
and big shots. Therefore, this Human
Rights Commission must be independent.
I would like very much to emphasize how
much we need this commission, especially
for the little Filipino, the little individual
who needs this kind of help and cannot
get it. And I think we should concentrate
only on civil and political violations
because if we open this to land, housing
and health, we will have no place to go
again and we will not receive any
response. . . .30 (emphasis supplied)
The final outcome, now written as Section 18,
Article XIII, of the 1987 Constitution, is a provision
empowering the Commission on Human Rights to
"investigate, on its own or on complaint by any
party, all forms of human rights violations involving
civil and political rights" (Sec. 1).
The term "civil rights,"31 has been defined as
referring —
(t)o those (rights) that belong to every
citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not
connected with the organization or
administration of the government. They
include the rights of property, marriage,
equal protection of the laws, freedom of
contract, etc. Or, as otherwise defined
civil rights are rights appertaining to a
person by virtue of his citizenship in a
state or community. Such term may also
refer, in its general sense, to rights
capable of being enforced or redressed in
a civil action.
Also quite often mentioned are the guarantees
against involuntary servitude, religious
persecution, unreasonable searches and seizures,
and imprisonment for debt.32
Political rights,33 on the other hand, are said to
refer to the right to participate, directly or
indirectly, in the establishment or administration of
government, the right of suffrage, the right to hold
public office, the right of petition and, in general,
the rights appurtenant to citizenship vis-a-vis the
management of government.34
Recalling the deliberations of the Constitutional
Commission, aforequoted, it is readily apparent
that the delegates envisioned a Commission on
Human Rights that would focus its attention to the
more severe cases of human rights violations.
Delegate Garcia, for instance, mentioned such
areas as the "(1) protection of rights of political
detainees, (2) treatment of prisoners and the
prevention of tortures, (3) fair and public trials, (4)
cases of disappearances, (5) salvagings and
hamletting, and (6) other crimes committed
against the religious." While the enumeration has
not likely been meant to have any preclusive effect,
more than just expressing a statement of priority,
it is, nonetheless, significant for the tone it has set.
In any event, the delegates did not apparently take
comfort in peremptorily making a conclusive
delineation of the CHR's scope of investigatorial
jurisdiction. They have thus seen it fit to resolve,
instead, that "Congress may provide for other
cases of violations of human rights that should fall
within the authority of the Commission, taking into
account its recommendation."35
In the particular case at hand, there is no cavil that
what are sought to be demolished are the
stalls, sari-sari stores and carinderia, as well as
temporary shanties, erected by private
respondents on a land which is planned to be
developed into a "People's Park". More than that,
the land adjoins the North EDSA of Quezon City
which, this Court can take judicial notice of, is a
busy national highway. The consequent danger to
life and limb is not thus to be likewise simply
ignored. It is indeed paradoxical that a right which
is claimed to have been violated is one that cannot,
in the first place, even be invoked, if it is, in fact,
extant. Be that as it may, looking at the standards
hereinabove discoursed vis-a-vis the
circumstances obtaining in this instance, we are
not prepared to conclude that the order for the
demolition of the stalls, sari-sari stores
and carinderia of the private respondents can fall
within the compartment of "human rights
violations involving civil and political rights"
intended by the Constitution.
On its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and
rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its
authority in providing in its revised rules, its power
"to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties
in accordance with the procedure and sanctions
provided for in the Rules of Court." That power to
cite for contempt, however, should be understood
to apply only to violations of its adopted
operational guidelines and rules of procedure
essential to carry out its investigatorial powers. To
exemplify, the power to cite for contempt could be
exercised against persons who refuse to cooperate
with the said body, or who unduly withhold
relevant information, or who decline to honor
summons, and the like, in pursuing its investigative
work. The "order to desist" (a semantic interplay
for a restraining order) in the instance before us,
however, is not investigatorial in character but
prescinds from an adjudicative power that it does
not possess. In Export Processing Zone Authority
vs. Commission on Human Rights,36 the Court,
speaking through Madame Justice Carolina Griño-
Aquino, explained:
The constitutional provision directing the
CHR to "provide for preventive measures
and legal aid services to the
underprivileged whose human rights have
been violated or need protection" may
not be construed to confer jurisdiction on
the Commission to issue a restraining
order or writ of injunction for, it that were
the intention, the Constitution would
have expressly said so. "Jurisdiction is
conferred only by the Constitution or by
law". It is never derived by implication.
Evidently, the "preventive measures and
legal aid services" mentioned in the
Constitution refer to extrajudicial and
judicial remedies (including a writ of
preliminary injunction) which the CHR
may seek from proper courts on behalf of
the victims of human rights violations. Not
being a court of justice, the CHR itself has
no jurisdiction to issue the writ, for a writ
of preliminary injunction may only be
issued "by the judge of any court in which
the action is pending [within his district],
or by a Justice of the Court of Appeals, or
of the Supreme Court. . . . A writ of
preliminary injunction is an ancillary
remedy. It is available only in a pending
principal action, for the preservation or
protection of the rights and interests of a
party thereto, and for no other purpose."
(footnotes omitted).
The Commission does have legal standing to
indorse, for appropriate action, its findings and
recommendations to any appropriate agency of
government.37
The challenge on the CHR's disbursement of the
amount of P200,000.00 by way of financial aid to
the vendors affected by the demolition is not an
appropriate issue in the instant petition. Not only
is there lack of locus standi on the part of the
petitioners to question the disbursement but,
more importantly, the matter lies with the
appropriate administrative agencies concerned to
initially consider.
The public respondent explains that this petition
for prohibition filed by the petitioners has become
moot and academic since the case before it (CHR
Case No. 90-1580) has already been fully heard,
and that the matter is merely awaiting final
resolution. It is true that prohibition is a preventive
remedy to restrain the doing of an act about to be
done, and not intended to provide a remedy for an
act already accomplished. 38 Here, however, said
Commission admittedly has yet to promulgate its
resolution in CHR Case No. 90-1580. The instant
petition has been intended, among other things, to
also prevent CHR from precisely doing that. 39
WHEREFORE, the writ prayed for in this petition is
GRANTED. The Commission on Human Rights is
hereby prohibited from further proceeding with
CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is
made permanent. No costs.
SO ORDERED.
G.R. No. 159618 February 1, 2011
BAYAN MUNA, as represented by Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.
MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and
prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by
and between the Republic of the Philippines (RP)
and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-
list group established to represent the
marginalized sectors of society. Respondent Blas F.
Ople, now deceased, was the Secretary of Foreign
Affairs during the period material to this case.
Respondent Alberto Romulo was impleaded in his
capacity as then Executive Secretary. 2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is
the Rome Statute3 establishing the International
Criminal Court (ICC) with "the power to exercise its
jurisdiction over persons for the most serious crimes
of international concern x x x and shall be
complementary to the national criminal
jurisdictions."4 The serious crimes adverted to
cover those considered grave under international
law, such as genocide, crimes against humanity,
war crimes, and crimes of aggression. 5
On December 28, 2000, the RP, through Charge
d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to
ratification, acceptance or approval" by the
signatory states.6 As of the filing of the instant
petition, only 92 out of the 139 signatory countries
appear to have completed the ratification,
approval and concurrence process. The Philippines
is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J.
Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the
terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the
RP.
Via Exchange of Notes No. BFO-028-037 dated May
13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed
with and accepted the US proposals embodied
under the US Embassy Note adverted to and put in
effect the Agreement with the US government. In
esse, the Agreement aims to protect what it refers
to and defines as "persons" of the RP and US from
frivolous and harassment suits that might be
brought against them in international tribunals. 8 It
is reflective of the increasing pace of the strategic
security and defense partnership between the two
countries. As of May 2, 2003, similar bilateral
agreements have been effected by and between
the US and 33 other countries.9
The Agreement pertinently provides as follows:
1. For purposes of this Agreement,
"persons" are current or former
Government officials, employees (including
contractors), or military personnel or
nationals of one Party.
2. Persons of one Party present in the
territory of the other shall not, absent the
express consent of the first Party,
(a) be surrendered or transferred by
any means to any international
tribunal for any purpose, unless
such tribunal has been established
by the UN Security Council, or
(b) be surrendered or transferred
by any means to any other entity or
third country, or expelled to a third
country, for the purpose of
surrender to or transfer to any
international tribunal, unless such
tribunal has been established by the
UN Security Council.
3. When the [US] extradites, surrenders, or
otherwise transfers a person of the
Philippines to a third country, the [US] will
not agree to the surrender or transfer of
that person by the third country to any
international tribunal, unless such tribunal
has been established by the UN Security
Council, absent the express consent of the
Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders,
or otherwise transfers a person of the [USA]
to a third country, the [GRP] will not agree
to the surrender or transfer of that person
by the third country to any international
tribunal, unless such tribunal has been
established by the UN Security Council,
absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force
until one year after the date on which one
party notifies the other of its intent to
terminate the Agreement. The provisions
of this Agreement shall continue to apply
with respect to any act occurring, or any
allegation arising, before the effective date
of termination.
In response to a query of then Solicitor General
Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the
exchange of diplomatic notes constituted a legally
binding agreement under international law; and
that, under US law, the said agreement did not
require the advice and consent of the US Senate.10
In this proceeding, petitioner imputes grave abuse
of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck
down as unconstitutional, or at least declared as
without force and effect.
For their part, respondents question petitioner’s
standing to maintain a suit and counter that
the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence
for its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality
of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE
[DFA] SECRETARY x x x GRAVELY ABUSED
THEIR DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION FOR
CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-
03 DATED 13 MAY 2003, WHEN THE
PHILIPPINE GOVERNMENT HAS ALREADY
SIGNED THE ROME STATUTE OF THE
[ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x
x Agreement Respondents gravely
abused their discretion when they
capriciously abandoned, waived
and relinquished our only legitimate
recourse through the Rome Statute
of the [ICC] to prosecute and try
"persons" as defined in the x x
x Agreement, x x x or literally any
conduit of American interests, who
have committed crimes of
genocide, crimes against humanity,
war crimes and the crime of
aggression, thereby abdicating
Philippine Sovereignty.
 B. Whether after the signing and
pending ratification of the Rome
Statute of the [ICC] the [RP]
President and the [DFA] Secretary x
x x are obliged by the principle of
good faith to refrain from doing all
acts which would substantially
impair the value of the undertaking
as signed.
C. Whether the x x
x Agreement constitutes an act
which defeats the object and
purpose of the Rome Statute of the
International Criminal Court and
contravenes the obligation of good
faith inherent in the signature of the
President affixed on the Rome
Statute of the International Criminal
Court, and if so whether the x x
x Agreement is void and
unenforceable on this ground.
D. Whether the RP-US Non-
Surrender Agreement is void and
unenforceable for grave abuse of
discretion amounting to lack or
excess of jurisdiction in connection
with its execution.
II. WHETHER THE RP-US NON SURRENDER
AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE
EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF
INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS
VALID, BINDING AND EFFECTIVE WITHOUT
THE CONCURRENCE BY AT LEAST TWO-
THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.11
The foregoing issues may be summarized into
two: first, whether or not the Agreement was
contracted validly, which resolves itself into the
question of whether or not respondents gravely
abused their discretion in concluding it;
and second, whether or not the Agreement, which
has not been submitted to the Senate for
concurrence, contravenes and undermines the
Rome Statute and other treaties. But because
respondents expectedly raised it, we shall first
tackle the issue of petitioner’s legal standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list
representatives, contends that the issue of the
validity or invalidity of the Agreement carries with
it constitutional significance and is of paramount
importance that justifies its standing. Cited in this
regard is what is usually referred to as the
emergency powers cases,12 in which ordinary
citizens and taxpayers were accorded the
personality to question the constitutionality of
executive issuances.
Locus standi is "a right of appearance in a court of
justice on a given question."13 Specifically, it is "a
party’s personal and substantial interest in a case
where he has sustained or will sustain direct injury
as a result"14 of the act being challenged, and "calls
for more than just a generalized grievance."15 The
term "interest" refers to material interest, as
distinguished from one that is merely
incidental.16 The rationale for requiring a party
who challenges the validity of a law or international
agreement to allege such a personal stake in the
outcome of the controversy is "to assure the
concrete adverseness which sharpens the
presentation of issues upon which the court so
largely depends for illumination of difficult
constitutional questions."17
Locus standi, however, is merely a matter of
procedure and it has been recognized that, in some
cases, suits are not brought by parties who have
been personally injured by the operation of a law
or any other government act, but by concerned
citizens, taxpayers, or voters who actually sue in
the public interest.18 Consequently, in a catena of
cases,19 this Court has invariably adopted a liberal
stance on locus standi.
Going by the petition, petitioner’s representatives
pursue the instant suit primarily as concerned
citizens raising issues of transcendental
importance, both for the Republic and the citizenry
as a whole.
When suing as a citizen to question the validity of
a law or other government action, a petitioner
needs to meet certain specific requirements before
he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.20 expounded on this
requirement, thus:
In a long line of cases, however, concerned citizens,
taxpayers and legislators when specific
requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the
petitioner assailing the constitutionality of a
statute must be direct and personal. He must be
able to show, not only that the law or any
government act is invalid, but also that he
sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement,
and not merely that he suffers thereby in some
indefinite way. It must appear that the person
complaining has been or is about to 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. In fine, when the proceeding
involves the assertion of a public right, the mere
fact that he is a citizen satisfies the requirement of
personal interest.21
In the case at bar, petitioner’s representatives have
complied with the qualifying conditions or specific
requirements exacted under the locus standi rule.
As citizens, their interest in the subject matter of
the petition is direct and personal. At the very least,
their assertions questioning the Agreement are
made of a public right, i.e., to ascertain that
the Agreement did not go against established
national policies, practices, and obligations bearing
on the State’s obligation to the community of
nations.
At any event, the primordial importance to Filipino
citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed
by the traditional requirement of locus standi, as
we have done in a long line of earlier cases, notably
in the old but oft-cited emergency powers
cases22 and Kilosbayan v. Guingona, Jr.23 In cases of
transcendental importance, we wrote again
in Bayan v. Zamora,24 "The Court may relax the
standing requirements and allow a suit to prosper
even where there is no direct injury to the party
claiming the right of judicial review."
Moreover, bearing in mind what the Court said
in Tañada v. Angara, "that 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,"25 we cannot but resolve head on the
issues raised before us. Indeed, where an action of
any branch of government is seriously alleged to
have infringed the Constitution or is done with
grave abuse of discretion, it becomes not only the
right but in fact the duty of the judiciary to settle it.
As in this petition, issues are precisely raised
putting to the fore the propriety of
the Agreement pending the ratification of the
Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against
the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a
valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware
of certain well-recognized international doctrines,
practices, and jargons––is untenable. One of these
is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted
principles of international law and international
jurisprudence as part of the law of the land and
adheres to the policy of peace, cooperation, and
amity with all nations.26 An exchange of notes falls
"into the category of inter-governmental
agreements,"27 which is an internationally
accepted form of international agreement. The
United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine
agreement, that has many similarities with the
private law contract. The agreement consists of the
exchange of two documents, each of the parties
being in the possession of the one signed by the
representative of the other. Under the usual
procedure, the accepting State repeats the text of
the offering State to record its assent. The
signatories of the letters may be government
Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently
resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.28
In another perspective, the terms "exchange of
notes" and "executive agreements" have been
used interchangeably, exchange of notes being
considered a form of executive agreement that
becomes binding through executive action. 29 On
the other hand, executive agreements concluded
by the President "sometimes take the form of
exchange of notes and at other times that of more
formal documents denominated ‘agreements’ or
‘protocols.’"30 As former US High Commissioner to
the Philippines Francis B. Sayre observed in his
work, The Constitutionality of Trade Agreement
Acts:
The point where ordinary correspondence
between this and other governments ends and
agreements – whether denominated executive
agreements or exchange of notes or otherwise –
begin, may sometimes be difficult of ready
ascertainment.31 x x x
It is fairly clear from the foregoing disquisition that
E/N BFO-028-03––be it viewed as the Non-
Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to
be bound––is a recognized mode of concluding a
legally binding international written contract
among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of
Treaties defines a treaty as "an international
agreement concluded between states in written
form and governed by international law, whether
embodied in a single instrument or in two or more
related instruments and whatever its particular
designation."32 International agreements may be
in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2)
executive agreements that are similar to treaties,
except that they do not require legislative
concurrence and are usually less formal and deal
with a narrower range of subject matters than
treaties.33
Under international law, there is no difference
between treaties and executive agreements in
terms of their binding effects on the contracting
states concerned,34 as long as the negotiating
functionaries have remained within their
powers.35 Neither, on the domestic sphere, can
one be held valid if it violates the
Constitution.36 Authorities are, however, agreed
that one is distinct from another for accepted
reasons apart from the concurrence-requirement
aspect.37 As has been observed by US
constitutional scholars, a treaty has greater
"dignity" than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the
Senate, and the people;38 a ratified treaty, unlike
an executive agreement, takes precedence over
any prior statutory enactment.39
Petitioner parlays the notion that the Agreement is
of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred
in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea
Trading, in which the Court reproduced the
following observations made by US legal scholars:
"[I]nternational agreements involving political
issues or changes of national policy and those
involving international arrangements of a
permanent character usually take the form of
treaties [while] those embodying adjustments of
detail carrying out well established national
policies and traditions and those involving
arrangements of a more or less temporary nature
take the form of executive agreements." 40
Pressing its point, petitioner submits that the
subject of the Agreement does not fall under any of
the subject-categories that are enumerated in
the Eastern Sea Trading case, and that may be
covered by an executive agreement, such as
commercial/consular relations, most-favored
nation rights, patent rights, trademark and
copyright protection, postal and navigation
arrangements and settlement of claims.
In addition, petitioner foists the applicability to the
instant case of Adolfo v. CFI of Zambales and
Merchant,41 holding that an executive agreement
through an exchange of notes cannot be used to
amend a treaty.
We are not persuaded.
The categorization of subject matters that may be
covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There
are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an
executive agreement as an instrument of
international relations. The primary consideration
in the choice of the form of agreement is the
parties’ intent and desire to craft an international
agreement in the form they so wish to further their
respective interests. Verily, the matter of form
takes a back seat when it comes to effectiveness
and binding effect of the enforcement of a treaty
or an executive agreement, as the parties in either
international agreement each labor under
the pacta sunt servanda42 principle.
As may be noted, almost half a century has elapsed
since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs
has become more complex and the domain of
international law wider, as to include such subjects
as human rights, the environment, and the sea. In
fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000
covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms
limitation, and nuclear safety, among
others.43 Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each
state on the matter of which the international
agreement format would be convenient to serve its
best interest. As Francis Sayre said in his work
referred to earlier:
x x x It would be useless to undertake to discuss
here the large variety of executive agreements as
such concluded from time to time. Hundreds of
executive agreements, other than those entered
into under the trade-agreement act, have been
negotiated with foreign governments. x x x They
cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits,
the admission of civil air craft, custom matters and
commercial relations generally, international
claims, postal matters, the registration of
trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive
agreement is a treaty-authorized44 or a treaty-
implementing executive agreement, 45 which
necessarily would cover the same matters subject
of the underlying treaty.
But over and above the foregoing considerations is
the fact that––save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the
Constitution46––when a treaty is required, the
Constitution does not classify any subject, like that
involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of
the Senate by a vote defined therein to complete
the ratification process.
Petitioner’s reliance on Adolfo47 is misplaced, said
case being inapplicable owing to different factual
milieus. There, the Court held that an executive
agreement cannot be used to amend a duly ratified
and existing treaty, i.e., the Bases Treaty. Indeed,
an executive agreement that does not require the
concurrence of the Senate for its ratification may
not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of
the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by
an executive agreement, does not obtain under the
premises.
Considering the above discussion, the Court need
not belabor at length the third main issue raised,
referring to the validity and effectivity of
the Agreement without the concurrence by at least
two-thirds of all the members of the Senate. The
Court has, in Eastern Sea Trading,48 as reiterated
in Bayan,49 given recognition to the obligatory
effect of executive agreements without the
concurrence of the Senate:
x x x [T]he right of the Executive to enter into
binding agreements without the necessity of
subsequent Congressional approval has been
confirmed by long usage. From the earliest days of
our history, we have entered executive
agreements covering such subjects as commercial
and consular relations, most favored-nation rights,
patent rights, trademark and copyright protection,
postal and navigation arrangements and the
settlement of claims. The validity of these has
never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome
Statute
It is the petitioner’s next contention that
the Agreement undermines the establishment of
the ICC and is null and void insofar as it unduly
restricts the ICC’s jurisdiction and infringes upon
the effectivity of the Rome Statute. Petitioner
posits that the Agreement was constituted solely
for the purpose of providing individuals or groups
of individuals with immunity from the jurisdiction
of the ICC; and such grant of immunity through
non-surrender agreements allegedly does not
legitimately fall within the scope of Art. 98 of the
Rome Statute. It concludes that state parties with
non-surrender agreements are prevented from
meeting their obligations under the Rome Statute,
thereby constituting a breach of Arts.
27,50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and
purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are
brought to justice in all cases, primarily by states,
but as a last resort, by the ICC; thus, any
agreement—like the non-surrender agreement—
that precludes the ICC from exercising its
complementary function of acting when a state is
unable to or unwilling to do so, defeats the object
and purpose of the Rome Statute.
Petitioner would add that the President and the
DFA Secretary, as representatives of a signatory of
the Rome Statute, are obliged by the imperatives
of good faith to refrain from performing acts that
substantially devalue the purpose and object of the
Statute, as signed. Adding a nullifying ingredient to
the Agreement, according to petitioner, is the fact
that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.
Contrary to petitioner’s pretense,
the Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute. Far from
going against each other, one complements the
other. As a matter of fact, the principle of
complementarity underpins the creation of the
ICC. As aptly pointed out by respondents and
admitted by petitioners, the jurisdiction of the ICC
is to "be complementary to national criminal
jurisdictions [of the signatory states]."54 Art. 1 of
the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is
hereby established. It x x x shall have the power to
exercise its jurisdiction over persons for the most
serious crimes of international concern, as referred
to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the
provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the
Rome Statute declares that "it is the duty of every
State to exercise its criminal jurisdiction over those
responsible for international crimes." This
provision indicates that primary jurisdiction over
the so-called international crimes rests, at the first
instance, with the state where the crime was
committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17,
par. 155 of the Rome Statute.
Of particular note is the application of the principle
of ne bis in idem56 under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of
the jurisdiction of a state vis-a-vis that of the ICC.
As far as relevant, the provision states that "no
person who has been tried by another court for
conduct x x x [constituting crimes within its
jurisdiction] shall be tried by the [International
Criminal] Court with respect to the same conduct x
x x."
The foregoing provisions of the Rome Statute,
taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as
party to the non-surrender agreement, and the
ICC; or the idea of the Agreement substantially
impairing the value of the RP’s undertaking under
the Rome Statute. Ignoring for a while the fact that
the RP signed the Rome Statute ahead of
the Agreement, it is abundantly clear to us that the
Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious
crimes committed within their respective borders,
the complementary jurisdiction of the ICC coming
into play only when the signatory states are
unwilling or unable to prosecute.
Given the above consideration, petitioner’s
suggestion––that the RP, by entering into
the Agreement, violated its duty required by the
imperatives of good faith and breached its
commitment under the Vienna Convention57 to
refrain from performing any act tending to impair
the value of a treaty, e.g., the Rome Statute––has
to be rejected outright. For nothing in the
provisions of the Agreement, in relation to the
Rome Statute, tends to diminish the efficacy of the
Statute, let alone defeats the purpose of the ICC.
Lest it be overlooked, the Rome Statute contains a
proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process
require the requested state to perform an act that
would violate some international agreement it has
entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for
surrender which would require the requested State
to act inconsistently with its obligations under
international agreements pursuant to which the
consent of a sending State is required to surrender
a person of that State to the Court, unless the Court
can first obtain the cooperation of the sending
State for the giving of consent for the surrender.
Moreover, under international law, there is a
considerable difference between a State-Party and
a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which
would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand,
is legally obliged to follow all the provisions of a
treaty in good faith.
In the instant case, it bears stressing that the
Philippines is only a signatory to the Rome Statute
and not a State-Party for lack of ratification by the
Senate. Thus, it is only obliged to refrain from acts
which would defeat the object and purpose of the
Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty
would be premature.
As a result, petitioner’s argument that State-
Parties with non-surrender agreements are
prevented from meeting their obligations under
the Rome Statute, specifically Arts. 27, 86, 89 and
90, must fail. These articles are only legally binding
upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90
would show that the Agreement is not
incompatible with the Rome Statute. Specifically,
Art. 90(4) provides that "[i]f the requesting State is
a State not Party to this Statute the requested
State, if it is not under an international obligation
to extradite the person to the requesting State,
shall give priority to the request for surrender from
the Court. x x x" In applying the provision, certain
undisputed facts should be pointed out: first, the
US is neither a State-Party nor a signatory to the
Rome Statute; and second, there is an international
agreement between the US and the Philippines
regarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still
recognizes the primacy of international
agreements entered into between States, even
when one of the States is not a State-Party to the
Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through
the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to
prosecute US nationals, government
officials/employees or military personnel who
commit serious crimes of international concerns in
the Philippines. Formulating petitioner’s argument
a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its
sovereignty, abdication being done by its waiving
or abandoning its right to seek recourse through
the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
We are not persuaded. As it were,
the Agreement is but a form of affirmance and
confirmance of the Philippines’ national criminal
jurisdiction. National criminal jurisdiction being
primary, as explained above, it is always the
responsibility and within the prerogative of the RP
either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the
jurisdiction of the ICC. Thus, the Philippines may
decide to try "persons" of the US, as the term is
understood in the Agreement, under our national
criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring
citizens or over US "persons" committing high
crimes in the country and defer to the secondary
criminal jurisdiction of the ICC over them. As to
"persons" of the US whom the Philippines refuses
to prosecute, the country would, in effect, accord
discretion to the US to exercise either its national
criminal jurisdiction over the "person" concerned
or to give its consent to the referral of the matter
to the ICC for trial. In the same breath, the US must
extend the same privilege to the Philippines with
respect to "persons" of the RP committing high
crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no
serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement.
Surely, one State can agree to waive jurisdiction—
to the extent agreed upon—to subjects of another
State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote
in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction
provisions of the RP-US Visiting Forces
Agreement—is apropos:
Nothing in the Constitution prohibits such
agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), in
relation to long-recognized subjects of such
immunity like Heads of State, diplomats and
members of the armed forces contingents of a
foreign State allowed to enter another State’s
territory. x x x
To be sure, the nullity of the subject non-surrender
agreement cannot be predicated on the postulate
that some of its provisions constitute a virtual
abdication of its sovereignty. Almost every time a
state enters into an international agreement, it
voluntarily sheds off part of its sovereignty. The
Constitution, as drafted, did not envision a
reclusive Philippines isolated from the rest of the
world. It even adheres, as earlier stated, to the
policy of cooperation and amity with all nations. 60
By their nature, treaties and international
agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of
sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their
state power or agree to limit the exercise of their
otherwise exclusive and absolute jurisdiction. The
usual underlying consideration in this partial
surrender may be the greater benefits derived
from a pact or a reciprocal undertaking of one
contracting party to grant the same privileges or
immunities to the other. On the rationale that the
Philippines has adopted the generally accepted
principles of international law as part of the law of
the land, a portion of sovereignty may be waived
without violating the Constitution. 61 Such waiver
does not amount to an unconstitutional diminution
or deprivation of jurisdiction of Philippine courts. 62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck
down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly
universally recognized principles of international
law. The immoral aspect proceeds from the fact
that the Agreement, as petitioner would put it,
"leaves criminals immune from responsibility for
unimaginable atrocities that deeply shock the
conscience of humanity; x x x it precludes our
country from delivering an American criminal to
the [ICC] x x x."63
The above argument is a kind of recycling of
petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty
and in the process undermined its treaty
obligations under the Rome Statute, contrary to
international law principles.64
The Court is not persuaded. Suffice it to state in this
regard that the non-surrender agreement, as aptly
described by the Solicitor General, "is an assertion
by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement
is a recognition of the primacy and competence of
the country’s judiciary to try offenses under its
national criminal laws and dispense justice fairly
and judiciously."
Petitioner, we believe, labors under the erroneous
impression that the Agreement would allow
Filipinos and Americans committing high crimes of
international concern to escape criminal trial and
punishment. This is manifestly incorrect. Persons
who may have committed acts penalized under the
Rome Statute can be prosecuted and punished in
the Philippines or in the US; or with the consent of
the RP or the US, before the ICC, assuming, for the
nonce, that all the formalities necessary to bind
both countries to the Rome Statute have been met.
For perspective, what the Agreement contextually
prohibits is the surrender by either party of
individuals to international tribunals, like the ICC,
without the consent of the other party, which may
desire to prosecute the crime under its existing
laws. With the view we take of things, there is
nothing immoral or violative of international law
concepts in the act of the Philippines of assuming
criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by
both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the
necessity of the Senate’s concurrence in the
Agreement. And without specifically saying so,
petitioner would argue that the non-surrender
agreement was executed by the President, thru the
DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first
portion of the above posture of petitioner, the
same having been discussed at length earlier on. As
to the second portion, We wish to state that
petitioner virtually faults the President for
performing, through respondents, a task conferred
the President by the Constitution—the power to
enter into international agreements.
By constitutional fiat and by the nature of his or her
office, the President, as head of state and
government, is the sole organ and authority in the
external affairs of the country.65 The Constitution
vests in the President the power to enter into
international agreements, subject, in appropriate
cases, to the required concurrence votes of the
Senate. But as earlier indicated, executive
agreements may be validly entered into without
such concurrence. As the President wields vast
powers and influence, her conduct in the external
affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President
to enter into or ratify binding executive
agreements has been confirmed by long practice. 66
In thus agreeing to conclude the Agreement thru
E/N BFO-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the
end of the day, the President––by ratifying, thru
her deputies, the non-surrender agreement––did
nothing more than discharge a constitutional duty
and exercise a prerogative that pertains to her
office.
While the issue of ratification of the Rome Statute
is not determinative of the other issues raised
herein, it may perhaps be pertinent to remind all
and sundry that about the time this petition was
interposed, such issue of ratification was laid to
rest in Pimentel, Jr. v. Office of the Executive
Secretary.67 As the Court emphasized in said case,
the power to ratify a treaty, the Statute in that
instance, rests with the President, subject to the
concurrence of the Senate, whose role relative to
the ratification of a treaty is limited merely to
concurring in or withholding the ratification. And
concomitant with this treaty-making power of the
President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured
the latter’s consent to the ratification of the treaty,
refuse to ratify it.68 This prerogative, the Court
hastened to add, is the President’s alone and
cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the
Philippines remains to be just a signatory to the
Rome Statute. Under Art. 12569 thereof, the final
acts required to complete the treaty process and,
thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo
signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes
Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity." Sec. 17 of RA
9851, particularly the second paragraph thereof,
provides:
Section 17. Jurisdiction. – x x x x
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if
another court or international tribunal is already
conducting the investigation or undertaking the
prosecution of such crime. Instead, the
authorities may surrender or extradite suspected
or accused persons in the Philippines to the
appropriate international court, if any, or to
another State pursuant to the applicable
extradition laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends
existing municipal laws on the State’s obligation in
relation to grave crimes against the law of nations,
i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory
proviso, the view posits that the Philippine is
required to surrender to the proper international
tribunal those persons accused of the grave crimes
defined under RA 9851, if it does not exercise its
primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that
if it does not decide to prosecute a foreign national
for violations of RA 9851, the Philippines has only
two options, to wit: (1) surrender the accused to
the proper international tribunal; or (2) surrender
the accused to another State if such surrender is
"pursuant to the applicable extradition laws and
treaties." But the Philippines may exercise these
options only in cases where "another court or
international tribunal is already conducting the
investigation or undertaking the prosecution of
such crime;" otherwise, the Philippines must
prosecute the crime before its own courts
pursuant to RA 9851.
Posing the situation of a US national under
prosecution by an international tribunal for any
crime under RA 9851, the Philippines has the
option to surrender such US national to the
international tribunal if it decides not to prosecute
such US national here. The view asserts that this
option of the Philippines under Sec. 17 of RA 9851
is not subject to the consent of the US, and any
derogation of Sec. 17 of RA 9851, such as requiring
the consent of the US before the Philippines can
exercise such option, requires an amendatory law.
In line with this scenario, the view strongly argues
that the Agreement prevents the Philippines—
without the consent of the US—from surrendering
to any international tribunal US nationals accused
of crimes covered by RA 9851, and, thus, in effect
amends Sec. 17 of RA 9851. Consequently, the view
is strongly impressed that the Agreement cannot
be embodied in a simple executive agreement in
the form of an exchange of notes but must be
implemented through an extradition law or a treaty
with the corresponding formalities.
Moreover, consonant with the foregoing view,
citing Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the
"generally accepted principles of international law
as part of the law of the land," the Court is further
impressed to perceive the Rome Statute as
declaratory of customary international law. In
other words, the Statute embodies principles of
law which constitute customary international law
or custom and for which reason it assumes the
status of an enforceable domestic law in the
context of the aforecited constitutional provision.
As a corollary, it is argued that any derogation from
the Rome Statute principles cannot be undertaken
via a mere executive agreement, which, as an
exclusive act of the executive branch, can only
implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument
goes, seeks to frustrate the objects of the
principles of law or alters customary rules
embodied in the Rome Statute.
Prescinding from the foregoing premises, the view
thus advanced considers
the Agreement inefficacious, unless it is embodied
in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified
treaty partakes of the nature of a municipal law
that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the
Rome Statute as constitutive of enforceable
domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus
taken. For one, we find that the Agreement does
not amend or is repugnant to RA 9851. For
another, the view does not clearly state what
precise principles of law, if any,
the Agreement alters. And for a third, it does not
demonstrate in the concrete how
the Agreement seeks to frustrate the objectives of
the principles of law subsumed in the Rome
Statute.
Far from it, as earlier explained,
the Agreement does not undermine the Rome
Statute as the former merely reinforces the
primacy of the national jurisdiction of the US and
the Philippines in prosecuting criminal offenses
committed by their respective citizens and military
personnel, among others. The jurisdiction of the
ICC pursuant to the Rome Statute over high crimes
indicated thereat is clearly and unmistakably
complementary to the national criminal
jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and
establishes the crimes against international
humanitarian law, genocide and other crimes
against humanity;70 (2) provides penal sanctions
and criminal liability for their commission; 71 and (3)
establishes special courts for the prosecution of
these crimes and for the State to exercise primary
criminal jurisdiction.72 Nowhere in RA 9851 is there
a proviso that goes against the tenor of
the Agreement.
The view makes much of the above quoted second
par. of Sec. 17, RA 9851 as requiring the Philippine
State to surrender to the proper international
tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons.
This view is not entirely correct, for the above
quoted proviso clearly provides discretion to the
Philippine State on whether to surrender or not a
person accused of the crimes under RA 9851. The
statutory proviso uses the word "may." It is settled
doctrine in statutory construction that the word
"may" denotes discretion, and cannot be
construed as having mandatory effect.73 Thus, the
pertinent second pararagraph of Sec. 17, RA 9851
is simply permissive on the part of the Philippine
State.1avvphi1
Besides, even granting that the surrender of a
person is mandatorily required when the
Philippines does not exercise its primary
jurisdiction in cases where "another court or
international tribunal is already conducting the
investigation or undertaking the prosecution of
such crime," still, the tenor of the Agreement is not
repugnant to Sec. 17 of RA 9851. Said legal proviso
aptly provides that the surrender may be made "to
another State pursuant to the applicable
extradition laws and treaties." The Agreement can
already be considered a treaty following this
Court’s decision in Nicolas v. Romulo74 which cited
Weinberger v. Rossi.75 In Nicolas, We held that "an
executive agreement is a ‘treaty’ within the
meaning of that word in international law and
constitutes enforceable domestic law vis-à-vis the
United States."76
Likewise, the Philippines and the US already have
an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on
November 13, 1994. The pertinent Philippine law,
on the other hand, is Presidential Decree No. 1069,
issued on January 13, 1977. Thus, the Agreement,
in conjunction with the RP-US Extradition Treaty,
would neither violate nor run counter to Sec. 17 of
RA 9851.
The view’s reliance on Suplico v. Neda77 is similarly
improper. In that case, several petitions were filed
questioning the power of the President to enter
into foreign loan agreements. However, before the
petitions could be resolved by the Court, the Office
of the Solicitor General filed a Manifestation and
Motion averring that the Philippine Government
decided not to continue with the ZTE National
Broadband Network Project, thus rendering the
petition moot. In resolving the case, the Court took
judicial notice of the act of the executive
department of the Philippines (the President) and
found the petition to be indeed moot. Accordingly,
it dismissed the petitions.
In his dissent in the abovementioned case, Justice
Carpio discussed the legal implications of an
executive agreement. He stated that "an executive
agreement has the force and effect of law x x x [it]
cannot amend or repeal prior laws."78 Hence, this
argument finds no application in this case seeing as
RA 9851 is a subsequent law, not a prior one.
Notably, this argument cannot be found in the ratio
decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US
Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US
Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the
laws in both Contracting Parties x x x,"79 and
thereby concluding that while the Philippines has
criminalized under RA 9851 the acts defined in the
Rome Statute as war crimes, genocide and other
crimes against humanity, there is no similar
legislation in the US. It is further argued that, citing
U.S. v. Coolidge, in the US, a person cannot be tried
in the federal courts for an international crime
unless Congress adopts a law defining and
punishing the offense.
This view must fail.
On the contrary, the US has already enacted
legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US
enacted a law criminalizing war crimes. Section
2441, Chapter 118, Part I, Title 18 of the United
States Code Annotated (USCA) provides for the
criminal offense of "war crimes" which is similar to
the war crimes found in both the Rome Statute and
RA 9851, thus:
(a) Offense – Whoever, whether inside or
outside the United States, commits a war
crime, in any of the circumstances
described in subsection (b), shall be fined
under this title or imprisoned for life or any
term of years, or both, and if death results
to the victim, shall also be subject to the
penalty of death.
(b) Circumstances – The circumstances
referred to in subsection (a) are that the
person committing such war crime or the
victim of such war crime is a member of the
Armed Forces of the United States or a
national of the United States (as defined in
Section 101 of the Immigration and
Nationality Act).
(c) Definition – As used in this Section the
term "war crime" means any conduct –
(1) Defined as a grave breach in any of
the international conventions signed at
Geneva 12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the Hague
Convention IV, Respecting the Laws
and Customs of War on Land, signed 18
October 1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d]) when committed in the
context of and in association with an
armed conflict not of an international
character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on 3
May 1996), when the United States is a
party to such Protocol, willfully kills or
causes serious injury to
80
civilians. 1avvphi1
Similarly, in December 2009, the US adopted a law
that criminalized genocide, to wit:
§1091. Genocide
(a) Basic Offense – Whoever, whether in
the time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such–
(1) kills members of that group;
(2) causes serious bodily injury to
members of that group;
(3) causes the permanent
impairment of the mental faculties
of members of the group through
drugs, torture, or similar
techniques;
(4) subjects the group to conditions
of life that are intended to cause the
 physical destruction of the group in
whole or in part;
(5) imposes measures intended to
prevent births within the group; or
(6) transfers by force children of the
group to another group;
shall be punished as provided in subsection (b). 81
Arguing further, another view has been advanced
that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that
there is a gap between the definitions of the
different crimes under the US laws versus the
Rome Statute. The view used a report written by
Victoria K. Holt and Elisabeth W. Dallas, entitled
"On Trial: The US Military and the International
Criminal Court," as its basis.
At the outset, it should be pointed out that the
report used may not have any weight or value
under international law. Article 38 of the Statute of
the International Court of Justice (ICJ) lists the
sources of international law, as follows: (1)
international conventions, whether general or
particular, establishing rules expressly recognized
by the contesting states; (2) international custom,
as evidence of a general practice accepted as law;
(3) the general principles of law recognized by
civilized nations; and (4) subject to the provisions
of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various
nations, as subsidiary means for the determination
of rules of law. The report does not fall under any
of the foregoing enumerated sources. It cannot
even be considered as the "teachings of highly
qualified publicists." A highly qualified publicist is a
scholar of public international law and the term
usually refers to legal scholars or "academic
writers."82 It has not been shown that the
authors83 of this report are highly qualified
publicists.
Assuming arguendo that the report has weight,
still, the perceived gaps in the definitions of the
crimes are nonexistent. To highlight, the table
below shows the definitions of genocide and war
crimes under the Rome Statute vis-à-vis the
definitions under US laws:
Few believed there were wide differences between
the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice
that would expose US personnel to the Court. Since
US military lawyers were instrumental in drafting
the elements of crimes outlined in the Rome
Statute, they ensured that most of the crimes were
consistent with those outlined in the UCMJ and
gave strength to complementarity for the US. Small
areas of potential gaps between the UCMJ and the
Rome Statute, military experts argued, could be
addressed through existing military laws. 87 x x x
The report went on further to say that "[a]ccording
to those involved, the elements of crimes laid out
in the Rome Statute have been part of US military
doctrine for decades."88 Thus, the argument
proffered cannot stand.
Nonetheless, despite the lack of actual domestic
legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed
Justice Gray in The Paquete Habana 89 case already
held international law as part of the law of the US,
to wit:
International law is part of our law, and must be
ascertained and administered by the courts of
justice of appropriate jurisdiction as often as
questions of right depending upon it are duly
presented for their determination. For this
purpose, where there is no treaty and no
controlling executive or legislative act or judicial
decision, resort must be had to the customs and
usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators
who by years of labor, research, and experience
have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works
are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the
law ought to be, but for the trustworthy evidence
of what the law really is. 90 (Emphasis supplied.)
Thus, a person can be tried in the US for an
international crime despite the lack of domestic
legislation. The cited ruling in U.S. v.
Coolidge,91 which in turn is based on the holding in
U.S. v. Hudson,92 only applies to common law and
not to the law of nations or international
law.93 Indeed, the Court in U.S. v. Hudson only
considered the question, "whether the Circuit
Courts of the United States can exercise a common
law jurisdiction in criminal cases."94 Stated
otherwise, there is no common law crime in the US
but this is considerably different from international
law.
The US doubtless recognizes international law as
part of the law of the land, necessarily including
international crimes, even without any local
statute.95 In fact, years later, US courts would apply
international law as a source of criminal liability
despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin 96 the US
Supreme Court noted that "[f]rom the very
beginning of its history this Court has recognized
and applied the law of war as including that part of
the law of nations which prescribes, for the
conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals."97 It
went on further to explain that Congress had not
undertaken the task of codifying the specific
offenses covered in the law of war, thus:
It is no objection that Congress in providing for the
trial of such offenses has not itself undertaken to
codify that branch of international law or to mark
its precise boundaries, or to enumerate or define
by statute all the acts which that law condemns. An
Act of Congress punishing ‘the crime of piracy as
defined by the law of nations is an appropriate
exercise of its constitutional authority, Art. I, s 8, cl.
10, ‘to define and punish’ the offense since it has
adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the
reference in the 15th Article of War to ‘offenders
or offenses that x x x by the law of war may be
triable by such military commissions. Congress has
incorporated by reference, as within the
jurisdiction of military commissions, all offenses
which are defined as such by the law of war x x x,
and which may constitutionally be included within
that jurisdiction.98 x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of
crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity
have attained the status of customary international
law. Some even go so far as to state that these
crimes have attained the status of jus cogens. 99
Customary international law or international
custom is a source of international law as stated in
the Statute of the ICJ.100 It is defined as the
"general and consistent practice of states
recognized and followed by them from a sense of
legal obligation."101 In order to establish the
customary status of a particular norm, two
elements must concur: State practice, the
objective element; and opinio juris sive
necessitates, the subjective element. 102
State practice refers to the continuous repetition
of the same or similar kind of acts or norms by
States.103 It is demonstrated upon the existence of
the following elements: (1) generality; (2)
uniformity and consistency; and (3)
duration.104 While, opinio juris, the psychological
element, requires that the state practice or norm
"be carried out in such a way, as to be evidence of
a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it." 105
"The term ‘jus cogens’ means the ‘compelling
law.’"106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other
customary norms and principles."107 As a result, jus
cogens norms are deemed "peremptory and non-
derogable."108 When applied to international
crimes, "jus cogens crimes have been deemed so
fundamental to the existence of a just international
legal order that states cannot derogate from them,
even by agreement."109
These jus cogens crimes relate to the principle of
universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain
heinous and widely condemned offenses, even
when no other recognized basis for jurisdiction
exists."110 "The rationale behind this principle is
that the crime committed is so egregious that it is
considered to be committed against all members
of the international community"111 and thus
granting every State jurisdiction over the crime. 112
Therefore, even with the current lack of domestic
legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction
to try these crimes.
Consequently, no matter how hard one insists, the
ICC, as an international tribunal, found in the Rome
Statute is not declaratory of customary
international law.
The first element of customary international law,
i.e., "established, widespread, and consistent
practice on the part of States,"113 does not, under
the premises, appear to be obtaining as reflected
in this simple reality: As of October 12, 2010, only
114114 States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years
earlier, or on July 1, 2002. The fact that 114 States
out of a total of 194115 countries in the world, or
roughly 58.76%, have ratified the Rome Statute
casts doubt on whether or not the perceived
principles contained in the Statute have attained
the status of customary law and should be deemed
as obligatory international law. The numbers even
tend to argue against the urgency of establishing
international criminal courts envisioned in the
Rome Statute. Lest it be overlooked, the
Philippines, judging by the action or inaction of its
top officials, does not even feel bound by the Rome
Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative
signed the Statute, but the treaty has not been
transmitted to the Senate for the ratification
process.
And this brings us to what Fr. Bernas, S.J. aptly said
respecting the application of the concurring
elements, thus:
Custom or customary international law means "a
general and consistent practice of states followed
by them from a sense of legal obligation [opinio
juris] x x x." This statement contains the two basic
elements of custom: the material factor, that is
how the states behave, and the psychological
factor or subjective factor, that is, why they behave
the way they do.
xxxx
The initial factor for determining the existence of
custom is the actual behavior of states. This
includes several elements: duration, consistency,
and generality of the practice of states.
The required duration can be either short or long.
xxx
xxxx
Duration therefore is not the most important
element. More important is the consistency and
the generality of the practice. x x x
xxxx
Once the existence of state practice has been
established, it becomes necessary to determine
why states behave the way they do. Do states
behave the way they do because they consider it
obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that
a certain form of behavior is obligatory, is what
makes practice an international rule. Without it,
practice is not law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming
consensus, let alone prevalent practice, among the
different countries in the world that the
prosecution of internationally recognized crimes of
genocide, etc. should be handled by a particular
international criminal court.
Absent the widespread/consistent-practice-of-
states factor, the second or the psychological
element must be deemed non-existent, for an
inquiry on why states behave the way they do
presupposes, in the first place, that they are
actually behaving, as a matter of settled and
consistent practice, in a certain manner. This
implicitly requires belief that the practice in
question is rendered obligatory by the existence of
a rule of law requiring it.117 Like the first element,
the second element has likewise not been shown
to be present.
Further, the Rome Statute itself rejects the concept
of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring
State consent.118 Even further, the Rome Statute
specifically and unequivocally requires that: "This
Statute is subject to ratification, acceptance or
approval by signatory States."119 These clearly
negate the argument that such has already
attained customary status.
More importantly, an act of the executive branch
with a foreign government must be afforded great
respect. The power to enter into executive
agreements has long been recognized to be lodged
with the President. As We held in Neri v. Senate
Committee on Accountability of Public Officers and
Investigations, "[t]he power to enter into an
executive agreement is in essence an executive
power. This authority of the President to enter into
executive agreements without the concurrence of
the Legislature has traditionally been recognized in
Philippine jurisprudence."120 The rationale behind
this principle is the inviolable doctrine of
separation of powers among the legislative,
executive and judicial branches of the government.
Thus, absent any clear contravention of the law,
courts should exercise utmost caution in declaring
any executive agreement invalid.
In light of the above consideration, the position or
view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to
be effective, has to be rejected.
WHEREFORE, the petition for certiorari,
mandamus and prohibition is hereby DISMISSED
for lack of merit. No costs.
SO ORDERED.
G.R. Nos. 79690-707 October 7, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN and
HONORABLE RAUL M. GONZALEZ, claiming to be
and acting as Tanodbayan-Ombudsman under the
1987 Constitution, respondents.
G.R. No. 80578 October 7, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
HON. RAUL M. GONZALEZ, claiming to be and
acting as Tanodbayan-Ombudsman ombudsman
under the 1987 Constitution, respondent.
PER CURIAM:
The following are the subjects of this Resolution:
1) a Motion, dated 9 February 1988, to Cite in
Contempt filed by petitioner Enrique A. Zaldivar
against public respondent Special Prosecutor
(formerly Tanodbayan) Raul M. Gonzalez, in
connection with G.R. Nos. 79690-707 and G.R. No.
80578. and 2) a Resolution of this Court dated 2
May 1988 requiring respondent Hon. Raul
Gonzalez to show cause why he should not be
punished for contempt and/or subjected to
administrative sanctions for making certain public
statements.
I
The pertinent facts are as follows:
Petitioner Zaldivar is one of several defendants in
Criminal Cases Nos.
12159-12161 and 12163-12177 (for violation of
the Anti-Graft and Corrupt Practices Act) pending
before the Sandiganbayan. The Office of the
Tanodbayan conducted the preliminary
investigation and filed the criminal informations in
those cases (originally TBP Case No. 86-00778).
On 10 September 1987, petitioner filed with this
Court a Petition for Certiorari, Prohibition and
mandamus (G.R. Nos. 79690-707) naming as
respondents both the Sandiganbayan and Hon.
Raul M. Gonzalez. Among other things, petitioner
assailed: (1) the 5 February 1987 Resolution 1 of
the "Tanodbayan" recommending the filing of
criminal informations against petitioner Zaldivar
and his co-accused in TBP Case No. 86-00778; and
(2) the 1 September 1987 Resolution 2 of the
Sandiganbayan in Criminal Cases Nos. 12159-
12161 and 1216312177 denying his Motion to
Quash the criminal informations filed in those
cases by the "Tanodbayan." In this respect,
petitioner alleged that respondent Gonzalez, as
Tanodbayan and under the provisions of the 1987
Constitution, was no longer vested with power and
authority independently to investigate and to
institute criminal cases for graft and corruption
against public officials and employees, and hence
that the informations filed in Criminal Cases Nos.
12159-12161 and 12163-12177 were all null and
void.
On 11 September 1987, this Court issued a
Resolution, which read:
G.R. Nos. 79690-707 (Enrique A. Zaldivar
vs. The Honorable Sandiganbayan and
Honorable Raul M. Gonzalez, Claiming To
Be and Acting as Tanodbayan-
Ombudsman under the 1987 Constitution
).—Acting on the special civil action for
 certiorari, prohibition and mandamus
under Rule 65 of the Rules of Court, with
urgent motion for preliminary elimination
injunction, the Court Resolved, without
giving due course to the petition, to
require the respondents to COMMENT
thereon, within ten (10) days from notice.
The Court further Resolved to ISSUE a
TEMPORARY RESTRAINING ORDER,
effective immediately and continuing until
further orders from this Court, ordering
respondent Sandiganbayan to CEASE and
DESIST from hearing and trying Criminal
Cases Nos. 12159 to 12161 and 12163 to
12177 insofar as petitioner Enrique
Zaldivar is concerned and from hearing
and resolving the Special Prosecutor's
motion to suspend dated September 3,
1987.
The parties later filed their respective pleadings.
Petitioner Zaldivar filed with this Court a second
Petition for certiorari and Prohibition (G.R. No.
80578) on 19 November 1987, initially naming only
Hon. Raul M. Gonzalez as respondent. That Petition
assailed the 24 September 1987 Resolution 3 of the
"Tanodbayan" in TBP Case No. 87- 01304
recommending that additional criminal charges for
graft and corruption be filed against petitioner
Zaldivar and five (5) other individuals. Once again,
petitioner raised the argument of the
Tanodbayan's lack of authority under the 1987
Constitution to file such criminal cases and to
investigate the same. Petitioner also moved for the
consolidation of that petition with G.R. No. 79690-
707.
In a Resolution dated 24 November 1987, 4 this
Court, without giving due course to the second
petition: (1) required respondent Gonzalez to
submit a comment thereon: and (2) issued a
temporary restraining order "ordering respondent
Hon. Raul M. Gonzalez to CEASE and DESIST from
further acting in TBP Case No. 87-01394 ... and
particularly, from filing the criminal information
consequent thereof and from conducting
preliminary investigation therein." In a separate
resolution of the same date, 5 G.R. Nos. 79690-707
and G.R. No. 80578 were ordered consolidated by
the Court.
In the meantime, however, on 20 November 1987
or four (4) days prior to issuance by this Court of a
temporary restraining order in G.R. No. 80578, the
Office of the Tanodbayan instituted Criminal Case
No. 12570 6 with the Sandiganbayan which issued
on 23 November 1987 an Order of Arrest 7 for
petitioner Zaldivar and his co-accused in Criminal
Case No. 12570. Upon Motion 8 of petitioner
Zaldivar, this Court issued the following Resolution
on 8 December 1987:
G.R. No. 80578 (Enrique A. Zaldivar vs.
Hon. Raul M. Gonzalez and
Sandiganbayan). The motion filed by the
Solicitor General for respondents for an
extension of thirty (30) days from the
expiration of the original period within
which to file comment on the petition for
certiorari and prohibition with prayer for
a writ of preliminary injunction or
restraining order is GRANTED.
Acting on the manifestation with motion
to treat the Sandiganbayan as party-
respondent, the Court Resolved to (a)
Consider IMPLEADED the Sandiganbayan
as party respondent; and (b) In pursuance
of and supplementing the Temporary
Restraining Order of November 24, 1987
"ordering respondent Hon. Raul M.
Gonzalez to CEASE and DESIST from
further acting in TBP Case No. 87-01304
entitled, "Commission on Audit vs. Gov.
Enrique Zaldivar, et al." and particularly,
from filing the criminal information
consequent thereof and from conducting
preliminary investigation therein" ISSUE a
TEMPORARY RESTRAINING ORDER
effective immediately and continuing until
further orders from this Court, ordering
respondents Hon. Raul M. Gonzalez and
Sandiganbayan to CEASE and DESIST from
further acting in Criminal Case No. 12570,
entitled, "People of the Philippines vs.
Enrique M. Zaldivar, et al." and from
enforcing the order of arrest issued by the
Sandiganbayan in said case.
The Solicitor General filed a Comment 9 on the
petition in G.R. No. 80578, and we required the
petitioner to submit a Reply 10 thereto.
On 9 February 1988, petitioner Zaldivar filed with
the Court a Motion to Cite in Contempt 11 directed
at respondent Gonzalez. The Motion cited as bases
the acts of respondent Gonzalez in: (1) having
caused the filing of the information against
petitioner in Criminal Case No. 12570 before the
Sandiganbayan; and (2) issuing certain allegedly
contemptuous statements to the media in relation
to the proceedings in G.R. No. 80578. In respect of
the latter, petitioner annexed to his Motion a
photocopy of a news article, reproduced here in
toto, which appeared in the 30 November 1987
issue of the "Philippine Daily Globe:"
Tanod Scores SC for Quashing Graft Case
TANODBAYAN Justice Raul M. Gonzalez
said yesterday the Supreme Court order
stopping him from investigating graft
cases involving Antique Gov. Enrique
Zaldivar can aggravate the thought that
affluent persons "an prevent the progress
of a trial."
What I am afraid of (with the issuance of
the order) is that it appears that while rich
and influential persons get favorable
actions from the Supreme Court, it is
difficult for an ordinary litigant to get his
petition to be given due course. Gonzalez
told the Daily Globe in an exclusive
interview.
Gonzalez said the high tribunal's
order '"eightens the people's
apprehension over the justice system in
this country, especially because the people
have been thinking that only the small fly
can get it while big fishes go scot-free."
Gonzalez was reacting to an order issued
by the tribunal last week after Zaldivar
petitioned the court to stop the
Tanodbayan from investigating graft cases
filed against him.
Zaldivar had charged that Gonzalez was
biased in his investigations because the
latter wanted to help promote the
political fortunes of a friend from Antique,
lawyer Bonifacio Alentajan.
Acting on Zaldivar's petition, the high
court stopped Gonzalez from
investigating a graft charge against the
governor, and from instituting any
complaint with the Sandiganbayan.
While President Aquino had been prodding
me to prosecute graft cases even if they
involve the high and mighty, the Supreme
Court had been restraining me. Gonzalez
said.
In accordance with the President's order,
Gonzalez said he had filed graft cases
against two "very powerful" officials of the
Aquino government-Commissioner
Quintin Doromal of the Presidential
Commission on Good Government and
Secretary Jiamil I.M. Dianlan of the Office
of Muslim Affairs and Cultural
Communities.
While I don't wish to discuss the merits of
the Zaldivar petition before the Supreme
Court, I am a little bit disturbed that (the
order) can aggravate the thinking of some
people that affluent persons can prevent
the progress of a trial, he said.
He disclosed that he had a talk with the
Chief Executive over the weekend and
that while she symphatizes with local
officials who are charged in court during
election time, 'She said that it might be a
disservice to the people and the voters
who are entitled to know their candidates.
Gonzalez said that while some cases filed
against local officials during election time
could be mere harassment suits, the
Constitution makes it a right of every
citizen to be informed of the character of
tile candidate, who should be subject to
scrutiny. (Emphasis supplied)
Acting on petitioner's Motion to Cite in Contempt,
the Court on 16 February 1988 required
respondent Gonzalez "to COMMENT on aforesaid
Motion within ten (10) days from notice." 12 On 27
April 1988, the Court rendered its Decision 13 (per
curiam) in the Consolidated Petitions. The
dispositive portion thereof read:
 WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed
by petitioner Zaldivar and hereby NULLIFY
the criminal informations filed against him
in the Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez to
cease and desist from conducting
investigations and filing criminal cases
with the Sandiganbayan or otherwise
exercising the powers and functions of the
Ombudsman.
SO ORDERED.
A Motion for Reconsideration 14 was filed by
respondent Gonzalez the next day, 28 April 1988.
In his Motion, respondent Gonzalez, after having
argued the legal merits of his position, made the
following statements totally unrelated to any legal
issue raised either in the Court's Decision or in his
own Motion:
1. That he "ha(d) been
approached twice by a leading member of
the court ... and he was asked to 'go slow
on Zaldivar and 'not to be too hard on
him;' "
2. That he "was approached and asked to
refrain from investigating the COA report
on illegal disbursements in the Supreme
Court because 'it will embarass the
Court;" and
3. That "(i)n several instances, the
undersigned respondent was called over
the phone by a leading member of the
Court and was asked to dismiss the cases
against (two Members of the Court)."
Respondent Gonzalez also attached three (3)
handwritten notes 15 which he claimed were sent
by "some members of this Honorable Court,
interceeding for cases pending before this office
(i.e., the Tanodbayan)." He either released his
Motion for Reconsideration with facsimiles of said
notes to the press or repeated to the press the
above extraneous statements: the metropolitan
papers for the next several days carried long
reports on those statements and variations and
embellishments thereof On 2 May 1988, the Court
issued the following Resolution in the Consolidated
Petitions:
G.R. No. 79690-707 (Enrique Zaldivar vs.
The Hon. Sandiganbayan, et al. G.R. No.
80578 (Enrique A. Zaldivar vs. Hon. Raul
M. Gonzalez, etc).
1. Acting on the Motion for
Reconsideration filed by respondent
Gonzalez under date of April 28, 1988, the
Court Resolved to REQUIRE the petitioner
to COMMENT thereon within ten (10)
days from notice hereof.
2. It appearing that respondent Raul M.
Gonzalez has made public statements to
the media which not only deal with
matters subjudice but also appear
offensive to and disrespectful of the Court
and its individual members and
calculated, directly or indirectly, to bring
the Court into disrepute, discredit and
ridicule and to denigrate and degrade the
administration of justice, the Court
Resolved to require respondent Gonzalez
to explain in writing within ten (10) days
from notice hereof, why he should not be
punished for contempt of court and/or
subjected to administrative sanctions for
making such public statements reported
in the media, among others, in the issues
of the "Daily Inquirer," the "Journal," the
"Manila Times," the "Philippine Star," the
"Manila Chronicle" the "Daily Globe" and
the "Manila Standard" of April 29 and 30,
and May 1, 1988, to wit:
(a) That the Court resolution in question is
merely "an offshoot of the position he had
taken that the SC Justices cannot claim
immunity from suit or investigation by
government prosecutors or motivated by
a desire to stop him 'from investigating
cases against some of their proteges or
friends;"
(b) That no less than six of the members of
the Court "interceded for and on behalf of
persons with pending cases before the
Tanodbayan," or sought "to pressure him
 to render decisions favorable to their
colleagues and friends;"
(c) That attempts were made to influence
him to go slow on Zaldivar and not to be
too hard on him and to refrain from
investigating the Commission on Audit
report on illegal disbursements in the
Supreme Court because it will embarass
the Court;
(d) That there were also attempts to cause
the dismissal of cases against two
Associate Justices; and
(e) That the Court had dismissed judges'
without rhyme or reason' and disbarred
lawyers 'without due process.
3. It further appearing that three (3)
affidavits relative to the purpose of and
circumstances attendant upon the notes
written to said public respondent by three
(3) members of the Court have since been
submitted to the Court and now form part
of its official records, the Court further
Resolved to require the Clerk of Court to
ATTACH to this Resolution copies of said
sworn statements and the annexes
thereto appended, and to DIRECT
respondent Gonzalez also to comment
thereon within the same period of ten
(10) days.
4. It finally appearing that notice of the
Resolution of February 16, 1988
addressed to respondent Gonzalez was
misdelivered and therefore not served on
him, the Court Resolved to require the
Clerk of Court to CAUSE SERVICE of said
Resolution on the respondent and to
REQUIRE the latter to comply therewith.
Respondent Gonzalez subsequently filed with this
Court on 9 May 1988 an Omnibus Motion for
Extension and Inhibition 16 alleging, among other
things: that the above quoted 2 May 1988
Resolution of the Court "appears to have
overturned that presumption [of innocence]
against him:" and that "he gravely doubts whether
that 'cold neutrality [of an impartial judge] is still
available to him" there being allegedly "at least 4
members of this Tribunal who will not be able to sit
in judgment with substantial sobriety and
neutrality." Respondent Gonzalez closed out his
pleading with a prayer that the four (4) Members
of the Court Identified and referred to there by him
inhibit themselves in the deliberation and
resolution of the Motion to Cite in Contempt.
On 19 May 1988 17 after receipt of respondent's
Supplemental Motion for Reconsideration. 18 this
Court in an extended per
19
curiam Resolution denied the Motion and
Supplemental Motion for Reconsideration. That
denial was made "final and immediately executory.
Respondent Gonzalez has since then filed the
following pleadings of record:
1. Manifestation with Supplemental
Motion to Inhibition 20 dated 23 May
1988;
2. Motion to Transfer Administrative
Proceedures to the Integrated Bar of the
Philippines 21 dated 20 May 1988
3. Urgent Motion for Additional Extension
of Time to File Explanation Ex Abundante
Cautelam, 22 dated 26 May 1988;
4. Urgent Ex-Parte Omnibus Motion
(a) For Extension of Time
(b) For Inhibition and
(c) For Transfer of Administrative
Proceedings to the IBP, Under Rule 139-
B 23 dated 4 June 1988 (with Annex
"A;" 24 an anonymous letter dated 27 May
1988 from the alleged Concerned
Employees of the Supreme Court and
addressed to respondent):
5. Ex-Parte Manifestation 25 dated 7 June
1988;
6. Urgent Ex-Parte Motion for
Reconsideration 26 1988; and
7. Urgent Ex-Parte Manifestation with
Motion 27 member 1988.
In compliance with the 2 May 1988 Resolution of
this Court quoted earlier, respondent Gonzalez
submitted on 17 June 1988 an Answer with
Explanation and Comment 28 offering respondent's
legal arguments and defenses against the
contempt and disciplinary charges presently
pending before this Court. Attached to that
pleading as Annex "A" thereof was respondent's
own personal Explanation/Compliance 29 second
explanation called "Compliance," 30 with annexes,
was also submitted by respondent on 22 July 1988.
II
We begin by referring to the authority of the
Supreme Court to discipline officers of the court
and members of the Bar. The Supreme Court, as
regulator and guardian of the legal profession, has
plenary disciplinary authority over attorneys. The
authority to discipline lawyers stems from the
Court's constitutional mandate to regulate
admission to the practice of law, which includes as
well authority to regulate the practice itself of
law. 31 Quite apart from this constitutional
mandate, the disciplinary authority of the Supreme
Court over members of the Bar is an inherent
power incidental to the proper administration of
justice and essential to an orderly discharge of
judicial functions. 32 Moreover, the Supreme Court
has inherent power to punish for contempt, to
control in the furtherance of justice the conduct of
ministerial officers of the Court including lawyers
and all other persons connected in any manner
with a case before the Court. 33 The power to
punish for contempt is "necessary for its own
protection against an improper interference with
the due administration of justice," "(it) is not
dependent upon the complaint of any of the
parties litigant. 34
There are, in other words, two (2) related powers
which come into play in cases like that before us
here; the Court's inherent power to discipline
attorneys and the contempt power. The
disciplinary authority of the Court over members of
the Bar is broader than the power to punish for
contempt. Contempt of court may be committee
both by lawyers and non-lawyers, both in and out
of court. Frequently, where the contemnor is a
lawyer, the contumacious conduct also constitutes
professional misconduct which calls into play the
disciplinary authority of the Supreme
Court. 35 Where the respondent is a lawyer,
however, the Supreme Court's disciplinary
authority over lawyers may come into play whether
or not the misconduct with which the respondent
is charged also constitutes contempt of court. The
power to punish for contempt of court does not
exhaust the scope of disciplinary authority of the
Court over lawyers. 36 The disciplinary authority of
the Court over members of the Bar is but corollary
to the Court's exclusive power of admission to the
Bar. A lawyer is not merely a professional but also
an officer of the court and as such, he is called upon
to share in the task and responsibility of dispensing
justice and resolving disputes in society. Any act on
his part which visibly tends to obstruct, pervert, or
impede and degrade the administration of justice
constitutes both professional misconduct calling
for the exercise of disciplinary action against him,
and contumacious conduct warranting application
of the contempt power.
It is sometimes asserted that in the exercise of the
power to punish for contempt or of the disciplinary
authority of the Court over members of the Bar,
the Court is acting as offended party, prosecutor
and arbiter at one and the same time. Thus, in the
present case, respondent Gonzalez first sought to
get some members of the Court to inhibit
themselves in the resolution of this case for alleged
bias and prejudice against him. A little later, he in
effect asked the whole Court to inhibit itself from
passing upon the issues involved in this proceeding
and to pass on responsibility for this matter to the
Integrated Bar of the Philippines, upon the ground
that respondent cannot expect due process from
this Court, that the Court has become incapable of
judging him impartially and fairly. Respondent
Gonzalez misconceives the nature of the
proceeding at bar as well as the function of the
members of the Court in such proceeding.
Respondent's contention is scarcely an original
one. In In Re Almacen, 37 then Associate (later
Chief) Justice Fred Fruiz Castro had occasion to deal
with this contention in the following lucid manner:
xxx xxx xxx
It is not accurate to say, nor is it an
obstacle to the exercise of our authority in
the premises, that, as Atty. Almacen would
have it appear, the members of the Court
are the 'complainants, prosecutors and
judges' all rolled up into one in this
instance. This is an utter
misapprehension, if not a total distortion,
not only of the nature of the proceeding
at hand but also of our role therein.
Accent should be laid on the fact that
disciplinary proceedings like the present
are sui generis. Neither purely civil nor
purely criminal, this proceeding is not—
and does not involve—a trial of an action
or a suit, but is rather an investigation by
the Court into the conduct of its officers.
Not being intended to inflict punishment,
it is in no sense a criminal prosecution.
Accordingly, there is neither a plaintiff nor
a prosecutor therein. It may be initiated by
the Court motu proprio. Public interest is
its primary objective, and the real question
for determination is whether or not the
attorney is still a fit person to be allowed
the privileges as such. Hence, in the
exercise of its disciplinary powers, the
Court merely calls upon a member of the
Bar to account for his actuations as an
officer of the Court with the end in view of
preserving the purity of the legal
profession and the property and honest
administration of justice by purging the
profession of members who by their
misconduct have proved themselves no
longer worthy to be entrusted with the
duties and responsibilities pertaining to
the office of an attorney. In such posture,
there can thus be no occasion to speak of
a complainant or a prosecutor.
Undeniably, the members of the Court are,
to a certain degree, aggrieved parties. Any
tirade against the Court as a body is
necessarily and inextricably as much so
against the individual members thereof
But in the exercise of its disciplinary
powers, the Court acts as an entity
separate and distinct from the individual
personalities of its members. Consistently
with the intrinsic nature of a collegiate
court, the individual members act not as
such individuals but only as a duly
constituted court. The distinct
individualities are lost in the majesty of
their office. So that, in a very real sense, if
there be any complainant in the case at
bar, it can only be the Court itself, not the
individual members thereof—as well as
the people themselves whose rights,
fortunes and properties, nay, even lives,
would be placed at grave hazard should
the administration of justice be
threatened by the retention in the Bar of
men unfit to discharge the solemn
responsibilities of membership in the legal
fraternity.
Finally, the power to exclude persons from
the practice of law is but a necessary
incident of the power to admit persons to
said practice. By constitutional precept,
this power is vested exclusively in this
Court. This duty it cannot abdicate just as
much as it cannot unilaterally renounce
jurisdiction legally invested upon it. So that
even if it be conceded that the members
collectively are in a sense the aggrieved
parties, that fact alone does not and
cannot disqualify them from the exercise
of the power because public policy
demands that they, acting as a Court,
exercise the power in all cases which call
for disciplinary action. The present is such
a case. In the end, the imagined anomaly
of the merger in one entity of the
personalities of complainant, prosecutor
and judge is absolutely inexistent.
xxx xxx xxx. 38
It should not be necessary for the members of this
Court expressly to disclaim any bias or prejudice
against the respondent that would prevent them
from acting in accordance with the exacting
requirements of their oaths of office. It also
appears to the Court that for all the members to
inhibit themselves from sitting on this case is to
abdicate the responsibility with which the
Constitution has burdened them. Reference of
complaints against attorneys either to the
Integrated Bar of the Philippines or to the Solicitor
General is not mandatory upon the Supreme Court;
such reference to the Integrated Bar of the
Philippines or to the Solicitor General is certainly
not an exclusive procedure under the terms of Rule
139-B of the Revised Rules of Court, especially
where the charge consists of acts done before the
Supreme Court. There is no need for further
investigation of facts in the present case for it is not
substantially disputed by respondent Gonzalez that
he uttered or wrote certain statements attributed
to him. In any case, respondent has had the
amplest opportunity to present his defense; his
defense is not that he did not make the statements
ascribed to him but that those statements give rise
to no liability on his part, having been made in the
exercise of his freedom of speech. The issues which
thus need to be resolved here are issues of law and
of basic policy and the Court, not any other agency,
is compelled to resolve such issues.
III
It is necessary to become very explicit as to what
respondent Gonzalez was saying in his statements
set out above. Respondent has not denied making
the above statements; indeed, he acknowledges
that the newspaper reports of the statements
attributed to him are substantially correct. 39
Respondent Gonzalez was in effect saying, firstly,
that the Supreme Court deliberately rendered an
erroneous or wrong decision when it rendered its
per curiam Decision dated 27 April 1988 in G.R.
Nos. 79690-707 and 80578. That decision
according to respondent Gonzalez, was issued as
an act of retaliation by the Court against him for
the position he had taken "that the (Supreme
Court) Justices cannot claim immunity from suit or
investigation by government prosecutors," and in
order to stop respondent from investigating
against "some of (the) proteges or friends (of some
Supreme Court Justices)." The Court cannot, of
course, and will not debate the correctness of its
Decision of 27 April 1988 and of its Resolution
dated 19 May 1988 (denying respondent Gonzalez
Motion for Reconsideration) in the consolidated
Zaldivar cases. Respondent Gonzalez, and anyone
else for that matter, is free intellectually to accept
or not to accept the reasoning of the Court set out
in its per curiam Decision and Resolution in the
consolidated Zaldivar cases. This should not,
however, obscure the seriousness of the assault
thus undertaken by respondent against the Court
and the appalling implications of such assault for
the integrity of the system of administration of
justice in our country. Respondent has said that the
Court rendered its Decision and Resolution without
regard to the legal merits of the Zaldivar cases and
had used the judicial process to impose private
punishment upon respondent for positions he had
taken (unrelated to the Zaldivar cases) in carrying
out his duties. It is very difficult to imagine a more
serious affront to, or a greater outrage upon, the
honour and dignity of this Court than this.
Respondent's statement is also totally baseless.
Respondent's statements were made in complete
disregard of the fact that his continuing authority
to act as Tanodbayan or Ombudsman after the
effectivity of the 1987 Constitution, had been
questioned before this Court as early as 10
September 1987 in the Petition for Certiorari,
Prohibition and mandamus filed against him in
these consolidated Petitions 40 that is, more than
seven (7) months before the Court rendered its
Decision. Respondent also ignores the fact that one
day later, this Court issued a Temporary
Restraining Order effective immediately ordering
the Sandiganbayan to cease and desist from
hearing the criminal cases filed against petitioner
Zaldivar by respondent Gonzalez. Respondent also
disregards the fact that on 24 November 1987,
upon the filing of a second Petition for certiorari for
Prohibition by Mr. Zaldivar, the Court issued a
Temporary Restraining Order this time requiring
the respondent to cease and desist from further
acting in TBP Case No. 87-0934. Thus, the decision
finally reached by this Court in April 1988 on the
constitutional law issue pending before the Court
for the preceding eight (8) months, could scarcely
have been invented as a reprisal simply against
respondent.
A second charge that respondent Gonzalez hurled
against members of the Supreme Court is that they
have improperly Id pressured" him to render
decisions favorable to their "colleagues and
friends," including dismissal of "cases" against two
(2) members of the Court. This particularly
deplorable charge too is entirely baseless, as even
a cursory examination of the contents of the
handwritten notes of three (3) members of this
Court addressed to respondent (which respondent
attached to his Motion for Reconsideration of the
Decision of this Court of 27 April 1988 in the
consolidated Petitions) win show. It is clear, and
respondent Gonzalez does not pretend otherwise,
that the subject matters of the said notes had no
relation at all to the issues in G.R. Nos. 79690-707
and 80578. This charge appears to have been made
in order to try to impart some substance (at least
in the mind of respondent) to the first accusation
made by respondent that the Court had
deliberately rendered a wrong decision to get even
with respondent who had, with great fortitude,
resisted "pressure" from some members of the
Court. Once again, in total effect, the statements
made by respondent appear designed to cast the
Court into gross disrepute, and to cause among the
general public scorn for and distrust in the
Supreme Court and, more generally, the judicial
institutions of the Republic.
Respondent Gonzalez has also asserted that the
Court was preventing him from prosecuting "rich
and powerful persons," that the Court was in effect
discrimination between the rich and powerful on
the one hand and the poor and defenseless upon
the other, and allowing "rich and powerful"
accused persons to go "scot-free" while
presumably allowing or affirming the conviction of
poor and small offenders. This accusation can only
be regarded as calculated to present the Court in
an extremely bad light. It may be seen as intended
to foment hatred against the Supreme Court; it is
also suggestive of the divisive tactics of
revolutionary class war.
Respondent, finally, assailed the Court for having
allegedly "dismissed judges 'without rhyme or
reason' and disbarred lawyers 'without due
process.'" The Court notes that this last attack is
not without relation to the other statements made
by respondent against the Court. The total picture
that respondent clearly was trying to paint of the
Court is that of an "unjudicial" institution able and
willing to render "clearly erroneous" decisions by
way of reprisal against its critics, as a body that acts
arbitrarily and capriciously denying judges and
lawyers due process of law. Once again, the
purport of respondent's attack against the Court as
an institution unworthy of the people's faith and
trust, is unmistakable. Had respondent undertaken
to examine the records 'of the two (2) judges and
the attorney he later Identified in one of his
Explanations, he would have discovered that the
respondents in those administrative cases had
ample opportunity to explain their side and submit
evidence in support thereof. 41 He would have also
found that there were both strong reasons for and
an insistent rhyme in the disciplinary measures
there administered by the Court in the continuing
effort to strengthen the judiciary and upgrade the
membership of the Bar. It is appropriate to recall in
this connection that due process as a constitutional
precept does not, always and in all situations,
require the trial-type proceeding, 42 that the
essence of due process is to be found in the
reasonable opportunity to be heard and to submit
any evidence one may have in support of one's
defense. 43 "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. 44
As noted earlier, respondent Gonzalez was
required by the Court to explain why he should not
be punished for contempt and/or subjected to
administrative discipline for making the statements
adverted to above. In his subsequent pleadings
where he asked the full Court to inhibit itself and to
transfer the administrative proceedings to the
Integrated Bar of the Philippines, respondent
made, among others, the following allegations:
(a) That the Members of the Court "should
inhibit [themselves] in the contempt and
administrative charges against the
respondent, in the light of the manifest
prejudice and anger they hold against
respondent as shown in the language of
the resolution on the Motion for
Reconsideration;"
(b) That "the entire membership of the
court has already lost that 'cold neutrality
of an impartial judge' [to] be able to allow
fairness and due process in the contempt
citation as well as in the possible
administrative charge;
(c) That "respondent honestly feels that
this court as angry and prejudiced as it is,
respondent has no china man's chance to
get fair hearing in the contempt and
possible administrative charges;"
(d) That one must consider "the milieu
before this Tribunal with, perhaps passion
and obfuscation running riot;"
 (e) That respondent, "after having been
castigated with such venom by the entire
Court in its decision denying the Motion
for Reconsideration, does not have
confidence in the impartiality of the entire
Court" and that he "funds it extremely
difficult to believe that the members of
this Tribunal can still act with unbiased
demeanor towards him;" and
(f) That "the Tribunal is determined
to disbar [respondent] without due
process" and that a specified Member of
the Court "has been tasked to be
the ponente, or at least prepare the
decision." (Underscoring in the original)
Thus, instead of explaining or seeking to mitigate
his statements earlier made, respondent sought to
heap still more opprobrium upon the Court,
accusing it of being incapable of judging his acts
and statements justly and according to law. Once
again, he paints this Court as a body not only
capable of acting without regard to due process
but indeed determined so to act. A grand design to
hold up this Court to public scorn and disrespect as
an unworthy tribunal, one obfuscated by passion
and anger at respondent, emerges once more. It is
very difficult for members of this Court to
understand how respondent Gonzalez could
suppose that judges on the highest tribunal of the
land would be ready and willing to violate their
most solemn oath of office merely to gratify any
imagined private feelings aroused by respondent.
The universe of the Court revolves around the daily
demands of law and justice and duty, not around
respondent nor any other person or group of
persons.
Whether or not the statements made by
respondent Gonzalez may reasonably be regarded
by this Court as contumacious or as warranting
exercise of the disciplinary authority of this Court
over members of the Bar, may best be assayed by
examining samples of the kinds of statements
which have been held in our jurisdiction as
constituting contempt or otherwise warranting the
exercise of the Court's authority.
1. In Montecillo v. Gica, 45 Atty. Quirico del Mar as
counsel for Montecillo, who was accused in a
slander case, moved to reconsider a decision of the
Court of Appeals in favor of the complainant with a
veiled threat that he should interpose his next
appeal to the President of the Philippines. In his
Motion for Reconsideration, he referred to the
provisions of the Revised Penal Code on "knowingly
rendering an unjust judgment," and "judgment
rendered through negligence" and implied that the
Court of Appeals had allowed itself to be deceived.
Atty. del Mar was held guilty of contempt of court
by the Court of Appeals. He then sued the three (3)
justices of the Court of Appeals for damages before
the Court of First Instance of Cebu, seeking to hold
them liable for their decision in the appealed
slander case. This suit was terminated, however, by
compromise agreement after Atty. del Mar
apologized to the Court of Appeals and the justices
concerned and agreed to pay moral damages to
the justices. Atty. del Mar some time later filed with
this Court a Petition for Review on certiorari of a
decision of the Court of Appeals in a slander case.
This Court denied the Petition for Review. Atty. del
Mar then filed a Motion for Reconsideration and
addressed a letter to the Clerk of the Supreme
Court asking for the names of the justices of this
Court who had voted in favor of and those who had
voted against his Motion for Reconsideration. After
his Motion for Reconsideration was denied for lack
of merit, Atty. del Mar filed a Manifestation in this
Court saying:
I can at this time reveal to you that, had
your Clerk of Court furnished me with
certified true copies of the last two
Resolutions of the Supreme Court
confirming the decision of the Court of
Appeals in the case entitled Francisco M.
Gica vs. Jorge Montecillo, I would have
filed against the Justices supporting the
same, civil and criminal suits as I did to the
Justices of the Court of Appeals who,
rewarding the abhorent falsification
committed by Mr. Gica, reversed for him
the decisions of the City Court and the
Court of First Instance of Cebu, not with a
view to obtaining a favorable judgment
therein but for the purpose of exposing to
the people the corroding evils extant in our
Government, so that they may well know
them and work for their
extermination. (60 SCRA at 240;emphasis
supplied)
Counsel was asked to explain why he should not be
administratively dealt with for making the above
statements. In his additional explanation, Atty. del
Mar made the following statements:
... Graft, corruption and injustice are
rampant in and outside of the
Government. It is this state of things that
convinced me that all human efforts to
correct and/or reform the said evils will be
fruitless and, as stated in my
manifestation to you, I have already
decided to retire from a life of militancy to
a life of seclusion, leaving to God the filling
up deficiencies. (60 SCRA at 242)
The Court suspended Atty. del Mar, "until further
orders," from the practice of law saying:
... Respondent is utilizing what exists in his
mind as state of graft, corruption and
injustice allegedly rampant in and outside
of the government as justification for his
contemptuous statements. In other
words, he already assumed by his own
contemptuous utterances that because
there is an alleged existence of rampant
corruption, graft and injustice in and out
of the government, We, by Our act in G.R.
No. L-36800, are among the corrupt, the
grafters and those allegedly committing
injustice. We are at a complete loss to
follow respondent del Mar's logic ...
xxx xxx xxx
To aged brethren of the bar it may appear
belated to remind them that second only
to the duty of maintaining allegiance to
the Republic of the Philippines and to
support the Constitution and obey the
laws of the Philippines, is the duty of all
attorneys to observe and maintain the
respect due to the courts of justice and
judicial officers (Sec. 20 (b) Rule 138, Rules
of Court). But We do remind them of said
duty to emphasize to their younger
brethren its paramount importance. A
lawyer must always remember that he is
an officer of the court exercising a high
privilege and serving in the noble mission
of administering justice.
xxx xxx xxx.
As already stated, the decision of the
Court of Appeals in C.A G.R. No. 46504-R
was based on its evaluation of the
evidence on only one specific issue. We in
turn denied in G.R. No. L-36800 the
petition for review on certiorari of the
decision because We found no reason for
disturbing the appellate court's finding
and conclusion. In both instances, both
the Court of Appeals and this Court
exercised judicial discretion in a case
under their respective jurisdiction. The
intemperate and imprudent act of
respondent del Mar in resorting to veiled
threats to make both Courts reconsider
their respective stand in the decision and
the resolution that spelled disaster for his
client cannot be anything but pure
contumely for aid tribunals.
It is manifest that respondent del Mar has
scant respect for the two highest Court of
the land when on the flimsy ground of
alleged error in deciding a case, he
proceeded to challenge the integrity of
both Courts by claiming that they
knowingly rendered unjust judgment. In
short, his allegation is that they acted with
intent and malice, if not with gross
ignorance of the law, in disposing of the
case of his client.
xxx xxx xxx
... To those who are in the practice of law
and those who in the future will choose to
enter this profession, We wish to point to
this case as a reminder for them to imprint
in their hearts and minds that an attorney
owes it to himself to respect the courts of
justice and its officers as a fealty for the
stability of our democratic institutions. (60
SCRA at 242-247: emphasis supplied)
2. In Surigao Mineral Reservation Board v.
Cloribel, 46 four (4) members of the bar, acting as
counsel for MacArthur International Minerals
Company were required by this Court to explain
certain statements made in MacArthur's third
Motion for Reconsideration:
 d. ...; and I the Supreme Court I has
overlooked the applicable law due to the
mis-representation and obfuscation of the
petitioners' counsel. (Last sentence, par.
1, Third Motion for Reconsideration dated
Sept. 10, 1968).
e. ... Never has any civilized democratic
tribunal ruled that such a gimmick
(referring to the "right to reject any and all
bids") can be used by vulturous executives
to cover up and excuse losses to the
public, a government agency or just plain
fraud ... and it is thus difficult, in the light
of our upbringing and schooling, even
under many of the incumbent justices,
that the Honorable Supreme Court
intends to create a decision that in effect
does precisely that in a most absolute
manner. (Second sentence, par. 7, Third
Motion for Reconsideration dated Sept.
10, 1968). (31 SCRA at 6)
They were also asked to explain the statements
made in their Motion to Inhibit filed on 21
September 1968 asking
Mr. Chief Justice Roberto Concepcion and
Mr. Justice Fred Ruiz Castro to inhibit
themselves from considering, judging and
resolving the case or any issue or aspect
thereof retroactive to January 11, 1967.
The motion charges "It that the brother of
the Honorable Associate Justice Castro is
a vice-president of the favored party who
is the chief beneficiary of the false,
erroneous and illegal decision dated
January 31, 1968" and the ex-
parte preliminary injunction rendered in
the above-entitled case, the latter in
effect prejudging and predetermining this
case even before the joining of an issue.
As to the Chief Justice, the motion states
[t]hat the son of the Honorable Chief
Justice Roberto Concepcion was given a
significant appointment in the Philippine
Government by the President a short time
before the decision of July 31, 1968 was
rendered in this case. The appointment
referred to was as secretary of the newly-
created Board of Investments. The motion
presents a lengthy discourse on judicial
ethics, and makes a number of side
comments projecting what is claimed to
be the patent wrongfulness of the July 31,
1968 decision. It enumerates "incidents"
which, according to the motion, brought
about respondent MacArthur's belief that
unjudicial prejudice had been caused it
and that there was 'unjudicial favoritism'
in favor of 'petitioners, their appointing
authority and a favored party directly
benefited by the said decision
(31 SCRA at 6-7)
Another attorney entered his appearance as new
counsel for MacArthur and filed a fourth Motion
for Reconsideration without leave of court, which
Motion contained the following paragraphs:
4. The said decision is illegal because it
was penned by the Honorable Chief
Justice Roberto Concepcion when in fact
he was outside the borders of the
Republic of the Philippines at the time of
the Oral Argument of the above-entitled
case—which condition is prohibited by
the New Rules of Court—Section 1, Rule
51, and we quote: "Justices; who may take
part—... . Only those members present
when any matter is submitted for oral
argument will take part in its
consideration and adjudication ... ." This
requirement is especially significant in the
present instance because the member
who penned the decision was the very
member who was absent for
approximately four months or more. This
provision also applies to the Honorable
Justices Claudio Teehankee and Antonio
Barredo.
xxx xxx xxx
6. That if the respondent MacArthur
International Minerals Company
abandons its quest for justice in the
Judiciary of the Philippine Government, it
will inevitably either raise the graft and
corruption of Philippine Government
officials in the bidding of May 12, 1965,
required by the Nickel Law to determine
the operator of the Surigao nickel
deposits, to the World Court on grounds
 of deprivation of justice and confiscation
of property and/or to the United States
Government, either its executive or
judicial branches or both, on the grounds
of confiscation of respondent's
proprietary vested rights by the Philippine
Government without either
compensation or due process of law and
invoking the Hickenlooper Amendment
requiring the cutting off of all aid and
benefits to the Philippine Government,
including the sugar price premium,
amounting to more than fifty million
dollars annually, until restitution or
compensation is made.
(31 SCRA at 10-11)
Finding their explanations unsatisfactory, the
Court, speaking through Mr. Justice Sanchez, held
three (3) attorneys guilty of contempt:
1. We start with the case of Atty. Vicente
L. Santiago. In his third motion for
reconsideration, we, indeed, find
language that is not to be expected of an
officer of the courts. He pictures
petitioners as 'vulturous executives.' He
speaks of this Court as a 'civilized,
democratic tribunal,' but by innuendo
would suggest that it is not.
In his motion to inhibit, his first paragraph
categorizes our decision of July 31, 1968
as 'false, erroneous and illegal' in a
presumptuous manner. He then charges
that the ex parte preliminary injunction
we issued in this case prejudiced and
predetermined the case even before the
joining of an issue. He accuses in a reckless
manner two justices of this Court for being
interested in the decision of this case:
Associate Justice Fred Ruiz Castro,
because his brother is the vice president
of the favored party who is the chief
beneficiary of the decision, and Chief
Justice Roberto Concepcion, whose son
was appointed secretary of the newly-
created Board of Investments, 'a
significant appointment in the Philippine
Government by the President, a short
time before the decision of July 31, 1968
was rendered.' In this backdrop, he
proceeds to state that 'it would seem that
the principles thus established [the moral
and ethical guidelines for inhibition of any
judicial authority by the Honorable
Supreme Court should first apply to itself.'
He puts forth the claim that lesser and
further removed conditions have been
known to create favoritism, only to
conclude that there is no reason for a
belief that the conditions obtaining in the
case of the Chief Justice and Justice Castro
would be less likely to engender favoritism
and prejudice for or against a particular
cause or party.' Implicit in this at least is
that the Chief Justice and Justice Castro
are insensible to delicadeza, which could
make their actuation suspect. He makes it
plain in the motion that the Chief Justice
and Justice Castro not only were not free
from the appearance of impropriety but
did arouse suspicion that their
relationship did affect their judgment. He
points out that courts must be above
suspicion at all times like Ceasar's wife,
warns that loss of confidence for the
Tribunal or a member thereof should not
be allowed to happen in our country,
'although the process has already begun.
xxx xxx xxx
What is disconcerting is that Atty.
Santiago's accusations have no basis in
fact and in law. The slur made is not
limited to the Chief Justice and Mr. Justice
Castro. It sweepingly casts aspersion on
the whole court. For, inhibition is also
asked if, we repeated any other justices
who have received favors or benefits
directly or indirectly from any of the
petitioners or any members of any board-
petitioner or their agents or principals,
including the president.' The absurdity of
this posture is at once apparent. For one
thing, the justices of this Court are
appointed by the President and in that
sense may be considered to have each
received a favor from the President.
Should these justices inhibit themselves
every time a case involving the
Administration crops up? Such a thought
may not certainly be entertained. The
consequence thereof would be to
paralyze the machinery of this Court. We
would in fact, be wreaking havoc on the
tripartite system of government operating
in this country. Counsel is presumed to
know this. But why the unfounded
charge? There is the not too-well
concealed effort on the part of a losing
litigant's attorney to downgrade this
Court.
The mischief that stems from all of the
foregoing gross disrespect is easy to
discern. Such disrespect detracts much
from the dignity of a court of justice.
Decidedly not an expression of faith,
counsel's words are intended to create an
atmosphere of distrust, of disbelief.
xxx xxx xxx
The precepts, the teachings, the
injunctions just recited are not unfamiliar
to lawyers. and yet, this Court finds in the
language of Atty. Santiago a style that
undermines and degrades the
administration of justice. The stricture in
Section 3 (d) of Rule 71 of the Rules against
improper conduct tending to degrade the
administration of justice is thus
transgressed. Atty. Santiago is guilty of
contempt of court.
xxx xxx xxx
Third. The motion contained an express
threat to take the case to the World Court
and/or the United States government. It
must be remembered that respondent
MacArthur at that time was still trying to
overturn the decision of this Court of July
31, 1968. In doing so, unnecessary
statements were in ejected. More
specifically, the motion announced that
McArthur 'will inevitably ... raise the graft
and corruption of the Philippine
government officials in the bidding of May
12, 1965 ... to the World Court' and would
invoke 'the Hickenlooper Amendment
requiring the cutting off of all aid and
benefits to the Philippine Government,
including the sugar price premium,
amount to more than fifty million dollars
annually ...
This is a clear attempt to influence or bend
the blind of this Court to decide the case'
in its favor. A notice of appeal to the
World Court has even been embodied in
Meads return. There is a gross
inconsistency between the appeal and the
move to reconsider the decision. An
appeal from a decision presupposes that a
party has already abandoned any move to
reconsider that decision. And yet, it would
appear that the appeal to the World Court
is being dangled as a threat to effect a
change of the decision of this Court. Such
act has no aboveboard explanation.
xxx xxx xxx
The dignity of the Court, experience
teaches, can never be protected where
infraction of ethics meets with
complacency rather than punishment. The
people should not be given cause to break
faith with the belief that a judge is the
epitome of honor amongst men. To
preserve its dignity, a court of justice
should not yield to the assaults of
disrespect. Punctilio of honor, we prefer to
think, is a standard of behavior so
desirable in a lawyer pleading a cause
before a court of justice. (31 SCRA at 13-
23; emphasis supplied)
3. In In re Almacen, supra, Atty. Vicente Raul
Almacen, in protest against what he asserted was
"a great injustice committed against his client by
the Supreme Court," filed a Petition to Surrender
Lawyer's Certificate of Title. He alleged that his
client was deeply aggrieved by this Court's "unjust
judgment," and had become "one of the sacrificial
victims before the altar of hypocrisy," saying that
"justice as administered by the present members
of the Supreme Court [was) not only blind, but also
deaf and dumb." Atty. Almacen vowed to argue the
cause of his client "in the people's forum" so that
"the people may know of this silent injustice
committed by this Court' and that "whatever
mistakes, wrongs and injustices that were
committed [may] never be repeated." Atty.
Almacen released to the press the contents of his
Petition and on 26 September 1967, the "Manila
Times" published statements attributed to him as
follows:
Vicente Raul Almacen, in an
unprecedented petition, said he did not
expose the tribunal's 'unconstitutional
and obnoxious' practice of arbitrarily
denying petitions or appeals without any
reason.
Because of the tribunal's 'short-cut
justice.' Almacen deplored, his client was
condemned to pay P120,000, without
knowing why he lost the case.
xxx xxx xxx
There is no use continuing his law
practice, Almacen said in this
petition, 'where our Supreme Court is
composed of men who are calloused to
our pleas of justice, who ignore without
reason their own applicable decisions and
commit culpable violations of the
Constitution with impunity.'
xxx xxx xxx
He expressed the hope that by divesting
himself of his title by which he earns his
living, the present members of the
Supreme Court 'will become responsible
to all cases brought to its attention
without discrimination, and will purge
itself of those unconstitutional and
obnoxious "lack of merit' or "denied
resolutions. (31 SCRA at 565566;
emphasis supplied)
Atty. Almacen was required by this Court to show
cause why disciplinary action should not be taken
against him. His explanation, which in part read:
xxx xxx xxx
The phrase, Justice is blind is symbolized
in paintings that can be found in all courts
and government offices. We have added
only two more symbols, that it is also deaf
and dumb. Deaf in the sense that no
members of this Court has ever heard our
cries for charity, generosity, fairness,
understanding, sympathy and for justice;
dumb in the sense, that inspire of our
beggings, supplications, and pleadings to
give us reasons why our appeals has been
DENIED, not one word was spoken or
given ... We refer to no human defect or
ailment in the above statement. We only
described the impersonal state of Things
and nothing more.
xxx xxx xxx
As we have stated, we have lost our faith
and confidence in the members of this
Court and for which reason we offered to
surrender our lawyer's certificate, IN
TRUST ONLY. Because what has been lost
today may be regained tomorrow. As the
offer was intended as our self-imposed
sacrifice, then we alone may decide as to
when we must end our self- sacrifice. If we
have to choose between forcing ourselves
to have faith and confidence in the
members of the Court but disregard our
Constitution and to uphold the
Constitution and be condemned by the
members of this Court, there is no choice,
we must uphold the latter. (31 SCRA at
572; emphasis supplied)
was found by the Court to be "undignified and
cynical" and rejected. The Court indefinitely
suspended Almacen from the practice of law
holding, through Mr. Justice Fred Ruiz Castro, that
Almacen had exceeded the boundaries of "fair
criticism."
4. In Paragas V. Cruz, 47 Counsel, whose Petition
for Ceriorari ran was dismissed by this Court, made
the following statements in his Motion for
Reconsideration:
The petitioner respectfully prays for a
reconsideration of the resolution of this
Honorable Court dated April 20,1966 on
the ground that it constitutes a violation
of Section 14 of Rule 11 2 of the Rules of
Court promulgated by this very Hon.
Supreme Court, and on the further ground
that it is likewise a violation of the most
important right in the Bill of Rights of the
 Constitution of the Philippines, a culpable
violation which is a ground for
impeachment.
... The rule of law in a democracy should
always be upheld and protected by all
means, because the rule of law creates
and preserves peace and order and gives
satisfaction and contentment to all
concerned. But when the laws and the
rules are violated, the victims resort,
sometimes, to armed force and to the
ways of the cavemen We do not want
Verzosa and Reyes repeated again and
again, killed in the premises of the
Supreme Court and in those of the City Hall
of Manila. Educated people should keep
their temper under control at all times!
But justice should be done to all
concerned to perpetuate the very life of
Democracy on the face of the earth. (14
SCRA at 810; emphasis supplied)
The Court considered the above statements as
derogatory to the dignity of the Court and required
counsel to show cause why administrative action
should not be taken against him. Counsel later
explained that he had merely related factual events
(i.e., the killing of Verzosa and Reyes) and to
express his desire to avoid repetition of such acts.
The Court, through Mr. Justice J.B.L. Reyes, found
these explanations unsatisfactory and the above
statements contumacious.
... The expressions contained in the
motion for reconsideration ... are plainly
contemptuous and disrespectful, and
reference to the recent killing of two
employees is but a covert threat upon the
members of the Court. ... That such threats
and disrespectful language contained in a
pleading filed in courts are constitutive of
direct contempt has been repeatedly
decided (Salcedo vs. Hernandez, 61 Phil.
724; People vs. Venturanza, 52 Off. Gaz.
769; Medina vs. Rivera, 66 Phil. 151; De
Joya vs. Court of First Instance of Rizal, 1,
9785, September 19,1956; Sison vs.
Sandejas L- 9270, April 29,1959; Lualhati
vs. Albert, 57 Phil. 86). What makes the
present case more deplorable is that the
guilty party is a member of the bar; for, as
remarked in People vs. Carillo, 77 Phil.
580-
Counsel should conduct himself towards
the judges who try his cases with that
courtesy all have a right to expect. As an
officer of the court, it is his sworn and
moral duty to help build and not destroy
unnecessarily that high esteem and regard
towards the courts so essential to the
proper administration of justice.
It in light and plausible that an attorney in
defending the cause and rights of his
client, should do so with all the fervor and
energy of which he is capable, but it is not,
and never will be so, for him to exercise
said right by resorting to intimidation or
proceeding without the propriety and
respect which the dignity of the courts
require. (Salcedo vs. Hernandez, [In re
Francisco], 61 Phil. 729)' (1 4 SCRA at 811-
812; emphasis supplied)
5. In In re Sotto, 48 a newspaper reporter, Mr. Angel
Parazo, invoking the Press Freedom Law, refused
to divulge the source of the news item which
carried his by-line and was sent to jail for so
refusing. Atty. Vicente Sotto, a senator and author
of said law, caused the publication of the following
item in a number of daily newspapers in Manila:
As author of the Press Freedom Law
(Republic Act No. 53), interpreted by the
Supreme Court in the case of Angel
Parazo, reporter of a local daily, who now
has to suffer 30 days imprisonment, for
his refusal to divulge the source of a news
published in his paper, I regret to say that
our High Tribunal has not only erroneously
interpreted said law, but that it is once
more putting in evidence the
incompetency or narrow mindedness of
the majority of its members. In the wake
of so many blunders and injustices
deliberately committed during these last
years, I believe that the only remedy to put
an end to so much evil, is to change the
members of the Supreme Court. To this
effect, I announce that one of the first
measures, which I will introduce in the
coming congressional sessions, will have
as its object the complete reorganization
of the Supreme Court. As it is now
constituted, the Supreme Court of today
constitutes a constant peril to liberty and
democracy. It need be said loudly, very
loudly, so that even the deaf may hear:
The Supreme Court of today is a far cry
from the impregnable bulwark of Justice
of those memorable times of Cayetano
Arellano, Victorino Mapa, Manuel Araullo
and other learned jurists who were the
honor and glory of the Philippine
Judiciary. (82 Phil. at 597-598; emphasis
supplied)
In finding Atty. Sotto in contempt, despite
his avowals of good faith and his
invocation of the constitutional guarantee
of free speech and in requiring him to
show cause why he should not be
disbarred, the Court, through Mr. Justice
Feria, said-
To hurl the false charge that this Court has
been for the last years committing
deliberately so many blunders and
injustices that is to say, that it has been
deciding in favor of one party knowing
that the law and justice is on the part of
the adverse party and not on the one in
whose favor the decision was rendered, in
many cases decided during the last years,
would tend necessarily to undermine the
coincidence of the people in the honesty
and integrity of the members of this Court,
and consequently to lower and degrade
the administration of justice by this
Court. The Supreme Court of the
Philippines is, under the Constitution, the
last bulwark to which the Filipino people
may repair to obtain relief for their
grievances or protection of their rights
when these are trampled upon, and if the
people lose their confidence in the
honesty and integrity of the members of
this Court and believe that they cannot
expect justice therefrom, they might be
driven to take the law into their hands,
and disorder and perhaps chaos might be
the result. As a member of the bar and an
officer of the courts Atty. Vicente Sotto,
like any other, is in duty bound to uphold
the dignity and authority of this Court, to
which he owes fidelity according to the
oath he has taken as such attorney, and
not to promote distrust in the
administration of justice. Respect to the
courts guarantees the stability of other
institutions, which without such guaranty
would be resting on a very shaky
foundation. (82 Phil. at 601-602; emphasis
supplied)
6. In Salcedo v. Hernandez, 49 Atty. Vicente
Francisco filed a Motion before the Supreme Court
which contained the following paragraph (in
translation):
We should like frankly and respectfully to
make it of record that the resolution of
this court, denying our motion for
reconsideration, is absolutely erroneous
and constitutes an outrage to the rights of
the petitioner Felipe Salcedo and a
mockery of the popular will expressed at
the polls in the municipality of Tiaong,
Tayabas. We wish to exhaust all the
means within our power in order that this
error may be corrected by the very court
which has committed it, because we
should not want that some citizen,
particularly some voter of the municipality
of Tiaong, Tayabas, resort to the press
publicly to denounce, as he has a right to
do, the judicial outrage of which the
herein petitioner has been the victim, and
because it is our utmost desire to
safeguard the prestige of this honorable
court and of each and every member
thereof in the eyes of the public. But, at
the same time we wish to state sincerely
that erroneous decisions like these, which
the affected party and his thousands of
voters will necessarily consider unjust,
increase the proselytes of sakdalism and
make the public lose confidence in the
administration of justice. (61 Phil. at 726;
emphasis supplied)
When required by the Court to show cause why he
should not be declared in contempt, Atty.
Francisco responded by saying that it was not
contempt to tell the truth. Examining the
statements made above, the Court held:
... [they] disclose, in the opinion of this
court, an inexcusable disrespect of the
authority of the court and an intentional
contempt of its dignity, because the court
is thereby charged with no less than
having proceeded in utter disregard of the
laws, the rights of the parties, and of the
untoward consequences, or with having
abused its power and mocked and flouted
the rights of Attorney Vicente J.
Francisco's client, because the acts of
outraging and mocking from which the
words 'outrage' and mockery' used
therein are derived, means exactly the
same as all these, according to the
Dictionary of the Spanish Language
published by the Spanish Academy
(Dictionary of the Spanish Language, 15th
ed., pages 132-513).
The insertion of the phrases in question in
said motion of Attorney Vicente J.
Francisco, for many years a member of
the Philippine bar, was neither justified
nor in the least necessary, because in
order to call the attention of the court in
a special way to the essential points relied
upon in his argument and to emphasize
the force thereof, the many reasons
stated in his said motion were sufficient
and the phrases in question were
superfluous. In order to appeal to reason
and justice, it is highly improper and amiss
to make trouble and resort to threats, as
Attorney Vicente J. Francisco has done,
because both means are annoying and
good practice can ever sanction them by
reason of their natural tendency to disturb
and hinder the free exercise of a serene
and impartial judgment, particularly in
judicial matters, in the consideration of
questions submitted for resolution.
There is no question that said paragraph
of Attorney Vicente J. Francisco's motion
contains a more or less veiled threat to
the court because it is insinuated therein,
after the author shows the course which
the voters of Tiaong should follow in case
he fails in his attempt, that they will resort
to the press for the purpose of
denouncing, what he claims to be a
judicial outrage of which his client has
been the victim; and because he states in
a threatening manner with the intention
of predisposing the mind of the reader
against the court, thus creating an
atmosphere of prejudices against it in
order to make it odious in the public
eye, that decisions of the nature of that
referred to in his motion to promote
distrust in the administration of justice
and increase the proselytes of sakdalism a
movement with seditious and
revolutionary tendencies the activities of
which, as is of public knowledge, occurred
in this country a few days ago. This cannot
mean otherwise than contempt of the
dignity of the court and disrespect of the
authority thereof on the part of Attorney
Vicente J. Francisco, because he presumes
that the court is so devoid of the sense of
justice that, if he did not resort to
intimidation, it would maintain its error
notwithstanding the fact that it may be
proven, with good reasons, that it has
acted erroneously.
As a member of the bar and an officer of
this court, Attorney Vicente J. Francisco, as
any attorney, is in duty bound to uphold its
dignity and authority and to defend its
integrity, not only because it had
conferred upon him the high privilege, not
a right (Malcolm, Legal Ethics, 158 and
160), of being what he now is: a priest of
justice (In re Thatcher, 80 Ohio St., Rep.,
492, 669), but also because in so doing, he
neither creates nor promotes distrust in
the administration of justice, and prevents
anybody from harboring and encouraging
discontent which, in many cases, is the
source of disorder, thus undermining the
foundation upon which rests that bulwark
called judicial power to which those who
are aggrieved turn for protection and
relief (61 Phil. at 727-728; emphasis
supplied)
It should not be supposed that the six (6)
cases above discussed exhaust our case
law on this matter. In the following cases,
among others, the Supreme Court
punished for contempt or administratively
 disciplined lawyers who had made
statements not very different from those
made in the cases discussed above:
1) In re Wenceslao Laureta, 148 SCRA 382
(1987);
2) Borromeo v. Court of appeals, 87 SCRA
67 (1978);
3) Rheem of the Philippines v. Ferrer, 20
SCRA 441 (1967);
4) Malolos v. Reyes, 1 SCRA 559 (1961);
5) De Joya, et al. v. Court of First Instance
of Rizal, Pasay City Branch, 99 Phil. 907
(1956);
6) People v. Venturanza, et al., 98 Phil. 211
(1956);
7) In re Suzano A. Velasquez, per
curiam Resolution (unreported),
Promulgated 29 April 1955;
8) Cornejo v. Tan, 85 Phil. 772 (1950);
9) People v. Carillon, 77 Phil. 572 (1946);
10) Intestate Estate of Rosario 0lba;
Contempt Proceedings against Antonio
Franco, 67 Phil. 312 (1939); and
11) Lualhati v. Albert, 57 Phil. 86 (1932).
Considering the kinds of statements of lawyers
discussed above which the Court has in the past
penalized as contemptuous or as warranting
application of disciplinary sanctions, this Court is
compelled to hold that the statements here made
by respondent Gonzalez clearly constitute
contempt and call for the exercise of the
disciplinary authority of the Supreme Court.
Respondent's statements, especially the charge
that the Court deliberately rendered an erroneous
and unjust decision in the Consolidated Petitions,
necessarily implying that the justices of this Court
betrayed their oath of office, merely to wreak
vengeance upon the respondent here, constitute
the grossest kind of disrespect for the Court. Such
statements very clearly debase and degrade the
Supreme Court and, through the Court, the entire
system of administration of justice in the country.
That respondent's baseless charges have had some
impact outside the internal world of subjective
intent, is clearly demonstrated by the filing of a
complaint for impeachment of thirteen (13) out of
the then fourteen (14) incumbent members of this
Court, a complaint the centerpiece of which is a
repetition of the appalling claim of respondent that
this Court deliberately rendered a wrong decision
as an act of reprisal against the respondent.
IV
The principal defense of respondent Gonzalez is
that he was merely exercising his constitutional
right of free speech. He also invokes the related
doctrines of qualified privileged communications
and fair criticism in the public interest.
Respondent Gonzalez is entitled to the
constitutional guarantee of free speech. No one
seeks to deny him that right, least of all this Court.
What respondent seems unaware of is that
freedom of speech and of expression, like all
constitutional freedoms, is not absolute and that
freedom of expression needs on occasion to be
adjusted to and accommodated with the
requirements of equally important public interests.
One of these fundamental public interests is the
maintenance of the integrity and orderly
functioning of the administration of justice. There
is no antinomy between free expression and the
integrity of the system of administering justice. For
the protection and maintenance of freedom of
expression itself can be secured only within the
context of a functioning and orderly system of
dispensing justice, within the context, in other
words, of viable independent institutions for
delivery of justice which are accepted by the
general community. As Mr. Justice Frankfurter put
it:
... A free press is not to be preferred
to an independent judiciary, nor an
independent judiciary to a free
press. Neither has primacy over the
other; both are indispensable to a
free society. The freedom of the
press in itself presupposes an
independent judiciary through
which that freedom may, if
necessary be vindicated. And one of
 the potent means for assuring
judges their independence is a free
press. 50
Mr. Justice Malcolm of this Court expressed the
same thought in the following terms:
The Organic Act wisely
guarantees freedom of speech and press.
This constitutional right must be protected
in its fullest extent. The Court has
heretofore given evidence of its tolerant
regard for charges under the Libel Law
which come dangerously close to its
violation. We shall continue in this chosen
path. The liberty of the citizens must be
preserved in all of its completeness. But
license or abuse of liberty of the press and
of the citizens should not be confused with
liberty ill its true sense. As important as is
the maintenance of an unmuzzled press
and the free exercise of the rights of the
citizens is the maintenance of the
independence of the Judiciary. Respect for
the Judiciary cannot be had if persons are
privileged to scorn a resolution of the
court adopted for good purposes, and if
such persons are to be permitted by
subterranean means to diffuse inaccurate
accounts of confidential proceedings to
the embarassment of the parties and the
courts. 51 (Emphasis supplied)
Only slightly (if at all) less important is the public
interest in the capacity of the Court effectively to
prevent and control professional misconduct on
the part of lawyers who are, first and foremost,
indispensable participants in the task of rendering
justice to every man. Some courts have held,
persuasively it appears to us, that a lawyer's right
of free expression may have to be more limited
than that of a layman. 52
It is well to recall that respondent Gonzalez, apart
from being a lawyer and an officer of the court, is
also a Special Prosecutor who owes duties of
fidelity and respect to the Republic and to this
Court as the embodiment and the repository of the
judicial power in the government of the Republic.
The responsibility of the respondent "to uphold the
dignity and authority of this Court' and "not to
promote distrust in the administration of
justice 53 is heavier than that of a private practicing
lawyer.
Respondent Gonzalez claims to be and he is, of
course, entitled to criticize the rulings of this Court,
to point out where he feels the Court may have
lapsed into error. Once more, however, the right of
criticism is not unlimited. Its limits were marked
out by Mr. Justice Castro in In re Almacen which are
worth noting
But it is the cardinal condition of all such
criticism that it shall be bonafide and shall
not spill over the walls of decency and
propriety. A wide chasm exists between
fair criticism, on the one hand, and abuse
and slander of courts and the judges
thereof, on the other. Intemperate and
unfair criticism is a gross violation of the
duty of respect to courts. It is such a
misconduct that subjects a lawyer to
disciplinary action.
The lawyer's duty to render respectful
subordination to the courts is essential to
the orderly administration of
justice. Hence, in the assertion of their
clients' rights, lawyers even those gifted
with superior intellect are enjoined to rein
up their tempers.
xxx xxx xxx 54
(Emphasis supplied)
The instant proceeding is not addressed to the fact
that respondent has criticized the Court; it is
addressed rather to the nature of that criticism or
comment and the manner in which it was carried
out.
Respondent Gonzalez disclaims an intent to attack
and denigrate the Court. The subjectivities of the
respondent are irrelevant so far as characterization
of his conduct or misconduct is concerned. He will
not, however, be allowed to disclaim the natural
and plain import of his words and acts. 55 It is upon
the other hand, not irrelevant to point out that
respondent offered no apology in his two (2)
explanations and exhibited no repentance. 56
Respondent Gonzalez also defends himself
contending that no injury to the judiciary has been
shown, and points to the fact that this Court denied
his Motion for Reconsideration of its per
curiam Decision of 27 April 1988 and reiterated
and amplified that Decision in its Resolution of 19
May 1988. In the first place, proof of actual damage
sustained by a court or the judiciary in general is
not essential for a finding of contempt or for the
application of the disciplinary authority of the
Court. Insofar as the Consolidated Petitions are
concerned, this Court after careful review of the
bases of its 27 April 1988 Decision, denied
respondent's Motion for Reconsideration thereof
and rejected the public pressures brought to bear
upon this Court by the respondent through his
much publicized acts and statements for which he
is here being required to account. Obstructing the
free and undisturbed resolution of a particular case
is not the only species of injury that the Court has
a right and a duty to prevent and redress. What is
at stake in cases of this kind is the integrity of the
judicial institutions of the country in general and of
the Supreme Court in particular. Damage to such
institutions might not be quantifiable at a given
moment in time but damage there will surely be if
acts like those of respondent Gonzalez are not
effectively stopped and countered. The level of
trust and confidence of the general public in the
courts, including the court of last resort, is not
easily measured; but few will dispute that a high
level of such trust and confidence is critical for the
stability of democratic government.
Respondent Gonzalez lastly suggests that
punishment for contempt is not the proper remedy
in this case and suggests that the members of this
Court have recourse to libel suits against him.
While the remedy of libel suits by individual
members of this Court may well be available
against respondent Gonzalez, such is by no means
an exclusive remedy. Moreover, where, as in the
instant case, it is not only the individual members
of the Court but the Court itself as an institution
that has been falsely attacked, libel suits cannot be
an adequate remedy. 57
The Court concludes that respondent Gonzalez is
guilty both of contempt of court in facie curiae and
of gross misconduct as an officer of the court and
member of the Bar.
ACCORDINGLY, the Court Resolved to SUSPEND
Atty. Raul M. Gonzalez from the practice of law
indefinitely and until further orders from this
Court, the suspension to take effect immediately.
G.R. No. 224936, September 04, 2019
PNOC ALTERNATIVE FUELS CORPORATION,
PETITIONER, v. NATIONAL GRID CORPORATION OF
THE PHILIPPINES, RESPONDENT.
DECISION
CAGUIOA, J.:
Before the Court is an appeal via a Petition for
Certiorari1 (Petition) under Rule 45 of the Rules of
Court filed by petitioner PNOC Alternative Fuels
Corporation (petitioner PAFC), assailing the
Order2 dated February 11, 2016 (assailed Order of
Expropriation) of the Regional Trial Court (RTC) of
Mariveles, Bataan, Branch 4 in SCA Case No. 104-
ML entitled National Grid Corporation of the
Philippines v. PNOC Alternative Fuels Corporation,
et al.
The Facts and Antecedent Proceedings
The instant case stems from a Complaint 3 for
Expropriation (Complaint) filed by respondent
National Grid Corporation of the Philippines
(respondent NGCP) on February 9, 2011 against
petitioner PAFC, Orica Philippines, Inc. (Orica),
Edgardo P. Manieda, Winy P. Manieda, Mercedes
P. Manieda, Nemy Manieda Amado, Danilo P.
Manieda, the Heirs of Leonardo Serios, 4and
Cresencia Toribio Soriano, represented by Imelda
S. Villareal.
In the Complaint, respondent NGCP claims that it is
a private corporation engaged in the business of
transmitting electric power from generating plants
of power producers to distrubutors.5 Respondent
NGCP was granted a "franchise to operate, manage
and maintain, and in connection therewith, to
engage in the business of conveying or transmitting
electricity through high voltage back-bone system
of interconnected transmission lines, substations
and related facilities, system operations, and other
activities that are necessary to support the safe and
reliable operation of the transmission system and
constuct, install, finance, manage, improve,
expand, operate, maintain, rehabilitate, repair and
refurbish the present nationwide transmission
system of the Republic of the Philippines"6 under
Republic Act (R.A.)No. 9511.
Respondent NGCP likewise alleged that, in order
for it to construct and maintain the Mariveles-
Limay 230 kV Transmission Line Project, it sought
to expropriate, upon payment of just
compensation, a certain area of a parcel of land
situated at Barangay Batangas II, Mariveles, Bataan
and Barangay Lamao, Limay, Bataan, having a total
area of 101,290.42 square meters, more or less
(the subject property). The subject property is part
of the Petrochemical Industrial Park. 7
The Petrochemical Industrial Park was originally
part of a parcel of land of the public domain having
an approximate area of 621 hectares reserved by
the government for the Lamao Horticultural
Experiment Station through Executive Order (E.O.)
No. 48, series of 1919.8
Subsequently, in 1968, Presidential Proclamation
(P.P.) No. 361 was issued, withdrawing 418 out of
the 621 hectares of land of the public domain from
the coverage of E.O. No. 48, and declaring the
same as an industrial reservation to be
administered by the National Power Corporation
(NPC).9
In 1969, P.P. No. 630 was issued amending P.P. No.
361. P.P. No. 630 enlarged the area covered by P.P.
No. 361 and reserved the same for industrial
purposes, including the establishment of an
industrial estate under the administration of the
National Development Company (NDC) or a
subsidiary thereof organized for such purposes. 10
In 1976, Presidential Decree (P.D.) No. 949 was
issued, which transferred the administration,
management, and ownership of the parcel of land
of the public domain located at Lamao, Limay,
Bataan covered by P.P. No. 361, as amended by
P.P. No. 630, to the Philippine National Oil
Company (PNOC).
According to P.D. No. 949, the PNOC shall manage,
operate and develop the parcel of land as a
petrochemical industrial zone and will establish,
develop and operate or cause the establishment,
development and operation thereat of
petrochemical and related industries by itself or its
subsidiaries or by any other entity or person it may
deem competent alone or in joint venture. 11
Subsequently, in 1981, P.D. No. 1803 was issued,
enlarging the area reserved for the Petrochemical
Industrial Zone established under P.D. No. 949. 12
In 1993, petitioner PAFC, which originally had the
name PNOC Petrochemicals Development
Corporation (PPDC), was incorporated as a
subsidiary of PNOC for the primary purpose of
administering and operating the Petrochemical
Industrial Zone. In 2006, the articles of
incorporation of PPDC were amended, changing
the name of PPDC to PNOC Alternative Fuels
Corporation.13
Subsequently, in 2011, respondent NGCP filed its
Complaint seeking to expropriate the subject
property from petitioner PAFC. According to
respondent NGCP, it sought to exercise its right of
eminent domain over the subject property because
negotiations conducted between petitioner PAFC
and respondent NGCP on the establishment of
transmission lines on the subject property were
unsuccessful. Respondent NGCP invoked its
general authority to exercise the right of eminent
domain under Section 4 of R.A. No. 9511, which
reads:
Section 4. Right of Eminent Domain. - Subject to
the limitations and procedures prescribed by law,
the Grantee is authorized to exercise the right of
eminent domain insofar as it may be reasonably
necessary for the construction, expansion, and
efficient maintenance and operation of the
transmission system and grid and the efficient
operation and maintenance of the subtransmission
systems which have not yet been disposed by
TRANSCO. The Grantee may acquire such private
property as is actually necessary for the realization
of the purposes for which this franchise is
granted: Provided, That the applicable law on
eminent domain shall be observed, particularly,
the prerequisites of taking of possession and the
determination and payment of just compensation.
Orica filed its Answer14 on April 25,2011, alleging
that it is a lessee of a portion of the Petrochemical
Industrial Park, where it put up a manufacturing
plant that produces commercial blasting explosives
and initiating systems products. In its Answer, Orica
raised several special affirmative defenses to
oppose respondent NGCP's Complaint. For its part,
petitioner PAFC filed its Answer15 on May 3,2011,
alleging, in sum, that several statutes and issuances
limit respondent NGCP's right to expropriate and
that "the land sought to be appropriated is already
devoted to a public purpose, specifically to
petrochemical and petrochemical related
industries which is considered as essential to the
national interest"16 and that "[i]t is only the
Congress of the Philippines which has the power to
exercise the right of eminent domain over the
subject property as it is already devoted for a public
purpose."17 Respondent NGCP filed its Reply18�
on May 12, 2011, defending its authority to
exercise the right of eminent domain over the
subject property.
During the pendency of the expropriation case, in
2013, R.A. No. 10516 was passed by Congress. The
said law expanded the use of the Petrochemical
Industrial Park to include businesses engaged in
energy and energy-allied activities or energy-
related infrastructure projects, or of such other
business activities that will promote its best
economic use.
On June 6, 2013, the Department of Energy (DOE)
issued Department Circular No. DC2013-06-0011
or the Implementing Rules and Regulations (IRR) of
R.A. No. 10516. The said IRR stated that the PNOC,
pursuant to its duty to manage, operate and
develop the subject parcel of land as an industrial
zone, had organized petitioner PAFC and assigned
ownership of the property to petitioner
PAFC via Deed of Assignment dated August 11,
1994. Further, petitioner PAFC, as owner of the
property, was mandated to manage, operate and
develop the property in accordance with R.A. No.
10516 and its IRR.
Subsequently, the RTC issued the assailed Order of
Expropriation and ruled that respondent NGCP has
a lawful right to expropriate the subject property
upon payment of just compensation. The
dispositive portion of the assailed Order of
Expropriation reads:
WHEREFORE, the affirmative defense of
defendants PNOC-AFC and Orica Philippines, Inc.
are hereby denied for lack of merit. Parties are
hereby directed to submit the names of the three
(3) Commissioners to be appointed by the Court.
Set this case for the reception of evidence to
establish defendants' valid claim of ownership to
be entitled for the payment of just compensation.
SO ORDERED.19
In issuing the assailed Order of Expropriation, the
RTC held that "[n]owhere in the annals of
legislation and jurisprudence is it stated that a
property already devoted to public use or purpose
is invulnerable to expropriation. Neither has it once
been held by the Constitution (sic) any law or
particular jurisprudence that a property already
expropriated, (sic) may no longer be subject to
another expropriation. Justice Isagani Cruz, one of
the foremost constitutionalists in the country holds
that property already devoted to public use is still
be (sic) subject to expropriation provided that it is
done directly by the national legislature or under a
specific grant of authority to the delegate."20
In relation to the foregoing, the RTC stressed that
under R. A. No. 9511, respondent NGCP "has a
legislative franchise to engage in the business of
conveying or transmitting electricity throughout
the country. Under this law, [respondent NGCP]
was given the authority to exercise the power of
eminent domain. Hence, and pursuant to Sec[.] 4[,]
Rule 67 of the Revised Rules of Court, the Court
believes that [respondent NGCP] has a lawful right
to take the property sought to be expropriated for
the public use or purpose described in the
complaint, upon payment of just compensation."21
Petitioner PAFC filed its Motion for
Reconsideration22 of the RTC's assailed Order of
Expropriation, which was denied by the RTC in its
Order23 dated April 18, 2016.
Hence, the instant appeal before the Court under
Rule 45 of the Rules of Court. Petitioner PAFC prays
that the Court set aside the RTC's Orders dated
February 11, 2016 and April 18, 2016 and "hold
that [respondent] NGCP's expropriation of
[petitioner] PAFC's property is improper and
without legal basis."24
Respondent NGCP filed its Comment25 dated
January 26, 2017, alleging, in sum, that the issues
raised in the Petition are not considered legal
questions because their determination requires
the findings of facts, that petitioner PAFC's direct
recourse before the Court is improper, and that
land already devoted to public use can still be
expropriated for another public purpose.
In response, petitioner PAFC filed its Reply26 dated
July 14, 2017, reiterating its argument that R.A. No.
9511 clearly limits respondent NGCP's right of
eminent domain to private property.
Issue
Stripped to its core, the instant Petition presents
two main issues for the Court's disposition: (1)
whether petitioner PAFC was correct in filing its
Rule 45 Petition directly before the Court, and (2)
whether the RTC was correct in issuing the assailed
Order of Expropriation, which held that respondent
NGCP is empowered to expropriate the subject
property under R.A. No. 9511.
The Court's Ruling
In deciding the merits of the instant Petition, the
Court resolves the aforementioned issues ad
seriatim.
I.� The Appeal Of� An Order Of
Expropriation
According to Section 4, Rule 67 of the Rules of
Court, if the objections to and the defenses against
the right of the plaintiff to expropriate the property
are overruled, the court may issue an order of
expropriation declaring that the plaintiff has a
lawful right to take the property sought to be
expropriated, for the public use or purpose
described in the complaint, upon the payment of
just compensation to be determined as of the date
of the taking of the property or the filing of the
complaint, whichever came first.
In the assailed Order of Expropriation, the RTC
denied the objections and defenses raised by
petitioner PAFC and Orica for lack of merit. The RTC
held that respondent NGCP "has a lawful right to
take the property sought to be expropriated for the
public use or purpose described in the complaint,
upon payment of just compensation."27 The RTC
also ordered the parties to submit the names of
three Commissioners to be appointed by the RTC,
and set the case for reception of evidence with
respect to payment of just compensation.
Section 4 of Rule 67 further states that a final order
sustaining the right to expropriate the property,
such as the assailed Order of Expropriation, may be
appealed by any party aggrieved thereby. Such
appeal, however, shall not prevent the court from
determining the just compensation to be paid. It is
clear from the foregoing that the proper remedy of
a defendant in an expropriation case who wishes to
contest an order of expropriation is not to file
a certiorari petition and allege that the RTC
committed grave abuse of discretion in issuing the
order of expropriation. The remedy is to file an
appeal of the order of expropriation.
Hence, under the aforementioned provision of the
Rules of Court, petitioner PAFC had the right to
appeal the assailed Order of Expropriation. The
Court holds that the instant appeal, although
mistakenly worded by petitioner PAFC as a
"Petition for Certiorari", is for all intents and
purposes a petition for review on certiorari under
Rule 45. It must be noted that petitioner PAFC
repeatedly invoked Rule 45 in filing the instant
appeal, alleging that the instant appeal is "pursuant
to Rule 45 of the Rules of Court raising a pure
question of law to set aside or nullify the [assailed
Order of Expropriation]."28
It can be surmised from the instant Petition that
petitioner PAFC resorted to filing its appeal directly
before the Court instead of the Court of Appeals
(CA) because it believed that the instant Petition
only involved pure questions of law. Under Rule 41
of the Rules of Court, in all cases where only
questions of law are raised or involved, the appeal
shall be filed directly before the Court, not via a
notice of appeal or record on appeal, but through
a petition for review on certiorari in accordance
with Rule 45.
The critical question, therefore, is whether the
instant Petition raises pure questions of law, which
warrants the direct filing of the appeal before the
Court.
Contrary to the view of respondent NGCP, the
Court holds that the instant Petition may be
decided by dealing purely with questions of law.
The Court has previously held that "a question of
law arises when there is doubt as to what the law
is on a certain state of facts, while there is a
question of fact when the doubt arises as to the
truth or falsity of the alleged facts."29 The Court
further explained that for a question to be one of
law, "the same must not involve an examination of
the probative value of the evidence presented by
the litigants or any of them. The resolution of the
issue must rest solely on what the law provides on
the given set of circumstances. Once it is clear that
the issue invites a review of the evidence
presented, the question posed is one of fact."30
Here, petitioner PAFC raises the argument that the
expropriation of the subject property by
respondent NGCP is invalid because such exercise
of eminent domain was neither done directly by
Congress nor pursuant to a specific grant of
authority. It is readily apparent that this primary
argument is legal in nature. To be sure, the Court
will be able to decide on the validity of the assailed
Order of Expropriation by merely looking at the
applicable law and jurisprudence on eminent
domain, as well as the law granting respondent
NGCP the right of eminent domain, i.e., R.A. No.
9511. The Court need not review the evidence on
record to assess the correctness of the assailed
Order of Expropriation.
In fine, the Court rules that petitioner PAFC did not
commit a procedural error in filing the instant�
appeal via a Rule 45 petition directly before the
Court.
II. The Validity Of The RTC's
Assailed Order Of Expropriation
Having disposed of the procedural issue, the Court
now resolves the substantive merits of the instant
Petition.
The Concept Of The Right Of Eminent
Domain
The power of eminent domain, which is also called
the power of expropriation, is the inherent right of
the State to condemn private property for public
use upon payment of just compensation. 31
The right of eminent domain has been described as
'"the highest and most exact idea of property
remaining in the government' that may be
acquired for some public purpose through a
method 'in nature of a compulsory sale to the
State.'"32 The right of eminent domain is an
ultimate right of the sovereign power to
appropriate any property within its territorial
sovereignty for a public purpose. The exercise of
this power, whether directly by the State or by its
authorized agents, is necessarily in derogation of
private rights. Hence, it is considered to be one of
the harshest proceedings known to the law. 33
Because the right of eminent domain is a power
inherent in sovereignty, it is a power which need
not be granted by any fundamental law. 34 Hence,
Article III, Section 9 of the 1987 Constitution, which
states that "private property shall not be taken for
public use without just compensation" is not a
grant, but only a limitation of the State's power to
expropriate.35
The expropriation of property consists of two
stages. The first stage is concerned with "the
determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the facts
involved in the suit."36 The second stage is
concerned with "the determination by the court of
'the just compensation for the property sought to
be taken'. This is done by the court with the
assistance of not more than three (3)
commissioners."37
Who Wields� The� Power� To
Expropriate
Considering that the right of eminent domain has
been described as one of the great, inherent
powers of the State, is the exercise of this right
exclusive to the State?
It has been held that, as an inherent sovereign
prerogative, the power to expropriate pertains
primarily to the legislature. The power of eminent
domain is lodged in the legislative branch of
government.38
However, the power to expropriate is not exclusive
to Congress. The latter may delegate the exercise
of the power to government agencies, public
officials and quasi-public entities.39 According to
eminent constitutionalist and one of the framers of
the 1987 Constitution, Fr. Joaquin G. Bernas, S.J.,
"[t]he authority of the legislature to delegate the
right of eminent domain to private entities
operating public utilities has never been
questioned."40
In the hands of government agencies, local
governments, public utilities, and other persons
and entities, the right to expropriate is not inherent
and is only a delegated power. In fact, even as to
municipal corporations, it has been held that they
can exercise the right of eminent domain only if
some law exists conferring the power upon them.41
Hence, with the right of eminent domain not being
an inherent power for private corporations, whose
right to expropriate is granted by mere legislative
fiat, the delegate's exercise of the right of eminent
domain is restrictively limited to the confines of the
delegating law. The scope of this delegated
legislative power is necessarily narrower than that
of the delegating authority and may only be
exercised in strict compliance with the terms of the
delegating law.42
Respondent� NGCP� May Only
Expropriate Private Property.
Therefore, with respondent NGCP's power to
expropriate being a mere delegated power from
Congress by virtue of R.A. No. 9511, respondent
NGCP's exercise of the right of eminent domain
over the subject property must conform to the
limits set under the said law. What then is the type
of property that may be expropriated by
respondent NGCP under R.A. No. 9511?
Upon a simple perusal of Section 4 of R.A. No.
9511, it states in no equivocal terms that "[t]he
Grantee (referring to respondent NGCP) may
acquire such private property as is actually
necessary for the realization of the purposes for
which this franchise is granted[.]"
The Court has previously held that under the
principles of statutory construction, if a statute is
clear, plain and free from ambiguity, it must be
given its literal meaning and applied without
attempted interpretation. This plain-meaning rule
or verba legis derived from the maxim, index animi
sermo est (speech is the index of intention) "rests
on the valid presumption that the words employed
by the legislature in a statute correctly express its
intent or will and preclude the court from
construing it differently."43
Section 4 of R.A. No. 9511 is clear, plain, and free
from any ambiguity. Respondent NGCP is allowed
to exercise the right of eminent domain only with
respect to private property. Therefore, this
unequivocal provision of the law must be given its
literal meaning and applied without any other
interpretation.
Land of Public Dominion v. Private
Property
Considering that respondent NGCP is empowered
to expropriate private properties exclusively, the
concept of private property vis-a-vis land of the
public dominion must be distinguished.
Article 419 of the Civil Code classifies property as
either of (1) public dominion (dominio publico) or
(2) of private ownership (propiedad privado).44
Article 420, in turn, identifies lands of public
dominion as either (1) those intended for public
use, such as roads, canals, rivers, torrents, ports
and bridges constructed by the State, banks,
shores, roadsteads, and others of similar character;
or (2) those which belong to the State, without
being for public use, and are intended for
some public service or for the development of the
national wealth.
Hence, based on Article 420 of the Civil Code, there
are three kinds of property of public dominion: (1)
those for public use, which may be used by
anybody, such as roads and canals; (2) those for
public service, which may be used only by certain
duly authorized persons, although used for the
benefit of the public; and (3) those used for the
development of national wealth, such as our
natural resources.45
There are certain defining characteristics of
properties of the public dominion that distinguish
them from private property.
Land of the public domain is outside the commerce
of man and, thus, cannot be leased, donated, sold,
or be the object of any contract, except insofar as
they may be the object of repairs or improvements
and other incidental things of similar
character.46 Hence, they cannot be appropriated
or alienated.47 Inalienability is an inherent
characteristic of property of the public dominion.
This characteristic necessarily clashes with an
express declaration of alienability and
disposability, in that when public land is explicitly
declared by the State to be subject to disposition,
it ceases to be land of the public dominion.
Necessarily,� as lands of public dominion are
inalienable, they cannot be acquired through
prescription and cannot be registered under the
Land Registration Law and be the subject of a
Torrens Title.48
Properties owned by the State which do not have
the aforementioned characteristics of a land of
public dominion are patrimonial properties of the
State.49 Patrimonial properties are properties
owned by the State in its private or proprietary
capacity.50
As explained by recognized Civil Law
Commentator, former CA Justice Eduardo P.
Caguioa, "[o]ver this kind of property[,] the State
has the same rights and has the same power of
disposition as private individuals in relation to their
own property, but of course, subject to rules and
regulations. The purpose of this property is in order
that the State may attain its economic ends, to
serve as a means for its subsistence and
preservation and in that way to be able to better
fulfill its primary mission."51 Examples of
patrimonial property of the State are those
properties acquired by the government in
execution or tax sales and mangrove lands and
mangrove swamps. Even public agricultural lands
that are made alienable and disposable by the
State are considered patrimonial properties. 52 In
fact, in our jurisprudence, despite dealing with the
management of water, which is a natural resource
and an essential public utility, waterworks have
been categorized as property owned by municipal
corporations in their proprietary character. 53
Even if patrimonial property refers to land owned
by the State or any of its instrumentalities, such is
still deemed private property as it is property held
by the State in its private and proprietary capacity,
and not in its public capacity, in order to attain
economic ends. As recently explained by the Court
in Republic v. Spouses Alejandre54 the Civil Code
classifies property of private ownership into three
categories: (1) patrimonial property of the State
under Articles 421 and 422 of the Civil Code; (2)
patrimonial property of Local Government Units
under Article 424; and (3) property belonging to
private individuals under Article 425.55
Hence, the mere fact that a parcel of land is owned
by the State or any of its instrumentalities does not
necessarily mean that such land is of public
dominion and not private property. If land owned
by the State is considered patrimonial property,
then such land assumes the nature of private
property.
As further held in Republic v. Spouses
Alejandre,56 patrimonial property are either: (1)
"by nature or use" or those covered by Article 421,
which are not property of public dominion or
imbued with public purpose based on the State's
current or intended use; or (2) "by conversion" or
those covered by Article 422, which previously
assumed the nature of property of public dominion
by virtue of the State's use, but which are no longer
being used or intended for said purpose.
Furthermore, the aforesaid case holds that "upon
the declaration of alienability and disposability x x
x the land ceases to possess the characteristics
inherent in properties of public dominion that they
are outside the commerce of man, cannot be
acquired by prescription, and cannot be registered
under the land registration law, and accordingly
assume the nature of patrimonial property of the
State that is property owned by the State in its
private capacity."57 Simply stated, land of the
public dominion expressly deemed by the State to
be alienable and disposable, susceptible to the
commerce of man through sale, lease, or any other
mode of disposition, assumes the nature of
patrimonial property.
In Sps. Modesto v. Urbina,58 the Court held that
private persons can claim possessory rights over a
particular property once it is declared alienable and
disposable. This illustrates that once property of
public dominion is declared by the State as
alienable and disposable, it becomes subject of
private rights, such as possessory claims, since such
declaration operates to convert property of public
dominion, which is inalienable property, to
patrimonial property held by the State in its private
capacity.
The Subject Property Is Patrimonial
Property That Assumes The Nature of
Private Property.�
The next issue that must be resolved is the
characterization of the subject property.
Petitioner PAFC posits the argument that the
subject property is a land of die public domain as it
is devoted to public use or purpose, i.e the
development of the petrochemical industry which,
it argues is a matter of national inteest Thus,
according to petitioner PAFC, the subject property
,s nTprivatf property. Hence, since respondent
NGCP is only allowed to expropriate private
property, necessarily, it has no authority to
expropriate the subject property.
The Court disagrees with petitioner PAFC. The
subject property, though owned by a State
instrumentality, is considered patrimonial property
that assumes the nature of private property.
First and foremost, it is admitted by all parties that
the subject property, sitting within the
Petrochemical Industrial Park, is an industrial zone.
In fact, the crux of petitioner PAFC's Petition is the
argument that since the Petrochemical Industrial
Park has been declared by law as an industrial zone
dedicated to the development of the
petrochemical industry, it should be deemed a land
dedicated to public use, i.e., a land of public
dominion.
However, in Republic v. East Silverlane Realty
Development Corp.,59 the Court held that when the
subject property therein was classified by the
government as an industrial zone, the subject
property therein "had been
declared patrimonial and it is only then that the
prescriptive period began to run." 60
Further, it is apparent from R.A. No. 10516 and its
IRR that the industrial estate is being owned,
managed, and operated by the State, not in its
sovereign capacity, but rather in its private
capacity. Simply stated, the management and
operation of the industrial estate is proprietary in
character, serving the economic ends of the State.
P.D. No. 949, as amended by R.A. No. 10516, calls
for the development of the industrial estate by
introducing "business activities that will promote
its best economic use."61 In addition, in the IRR of
the said law, the Petrochemical Industrial Park was
described as an industrial and commercial estate,
wherein private sector investment is encouraged in
the development of "industrial and commercial
activities/enterprises in said Industrial
62
Estate." According to the IRR, the industrial
estate may be used in any manner to achieve its
best economic use, allowing "any activity or series
of activities regularly engaged in as a means of
livelihood or with a view to profit."63 Hence, it is
crystal clear that the management of the land
where the subject property is located
is commercial in nature and that the State, through
petitioner PAFC, is operating the said property in
its proprietary capacity, in order to serve
economic, and not sovereign, ends.
Petitioner PAFC's insistence that the petrochemical
industry is an industry endowed with national
interest is unconvincing. The sheer fact that one of
the allowable activities inside the industrial estate
pertains to the development of the petrochemical
industry is not enough to characterize the subject
property as land of the public domain. To reiterate,
the Court has previously characterized waterworks
as patrimonial property despite the fact that such
properties deal with the management of an
important natural resource and an essential public
utility, for the reason that the operations of
waterworks by municipal corporations are often in
the nature of a business venture. 64 In the instant
case, it is apparent from P.D. No. 949, as amended
by R.A. No. 10516, that the Petrochemical
Industrial Park is intended and accordingly devoted
by law as a commercial and business venture.
Furthermore, as already discussed at length, the
defining characteristic of land of public domain
is inalienability. To reiterate, upon the explicit
declaration of alienability and disposability, the
land ceases to possess the characteristics inherent
in properties of public dominion, namely, that they
are outside the commerce of man, cannot be
acquired by prescription, and cannot be registered
under the land registration law, and accordingly
assume the nature of patrimonial property of the
State, that is property owned by the State in its
private capacity. Hence, an express declaration of
alienability and disposability by the State negates
the characterization of property as land of public
dominion.
Applying the foregoing in the instant case, the laws
governing the subject property have unequivocally
declared that the subject property is alienable,
disposable, appropriable, may be conveyed to
private persons or entities, and is subject to private
rights.
Under P.D. No. 949, the Petrochemical Industrial
Park was explicitly made alienable and disposable
for lease, sale, and conveyance to private entities
or persons for the conduct of related industrial
activities:
Section 2. The Philippine National Oil Company
shall manage, operate and develop the said parcel
of land as a petrochemical industrial zone and will
establish, develop and operate or cause the
establishment, development and operation
thereat of petrochemical and related industries by
itself or its subsidiaries or by any other entity or
person it may deem competent alone or in joint
venture; Provided, that, where any petrochemical
industry is operated by private entities or persons,
whether or not in joint venture with the Philippine
National Oil Company or its subsidiaries, the
Philippine National Oil Company mav lease, sell
and/or convey such portions of the petrochemical
industrial zone to such private entities or
persons.65
The alienable and disposable nature of the
Petrochemical Industrial Park was further
expanded when P.D. No. 949 was subsequently
amended by R.A. No. 10516. The said law
allowed the lease, sale, and conveyance of the
Petrochemical Industrial Park for purposes
of commercial utilization by private sector
investors:
SECTION 2. Purpose of Land Use. - The PNOC shall
manage, operate and develop the said parcel of
land as an industrial zone and will establish,
develop and operate or cause the establishment,
development and operation thereat of
petrochemical and related industries, as well as of
businesses engaged in energy and energy-allied
activities or energy-related infrastructure projects,
or of such other business activities that will
promote its best economic use, as determined by
the PNOC Board of Directors, by itself or its
subsidiaries or by any other entity or person it may
deem competent alone or in joint
venture: Provided, That, where any petrochemical
or energy-related industry or any such other
business as determined by the PNOC is operated by
private entities or persons, whether or not in joint
venture with the PNOC or its subsidiaries, the
PNOC may lease, sell and/or convey such portions
of the industrial zone to such private entities or
persons.66
Petitioner PAFC's argument that the subject
property is strictly confined and restricted to the
development of the petrochemical industry is
manifestly erroneous. The law itself unequivocally
allows the establishment of businesses engaged in
energy and energy-allied activities or energy-
related infrastructure projects, which obviously
includes the establishment of transmission towers.
The law permits, and even highly encourages, the
conduct of commercial activities in the industrial
estate by allowing the transfer of the subject
property to private investors.
Hence, with the subject property expressly
declared by law, i.e., P.D. No. 949, as amended by
R.A. No. 10516, to be an industrial and commercial
estate that may be transferred or conveyed to
private persons so that business activities may be
conducted therein, there is no doubt in the mind of
the Court that the subject property is patrimonial
property. In other words respondent NGCP has the
authority under Section 4 of R.A. No. 9511 to
expropriate the subject property.
Reasonableness And Necessity Of The
Expropriation
The determination of the validity of the assailed
Order of Expropriation does not stop with the
identification of the subject property as
patrimonial property. As previously discussed at
length, the delegated power to exercise the right
of eminent domain may only be exercised in strict
compliance within the terms of the delegating law.
Under Section 4 of R.A. No. 9511, respondent
NGCP's right to expropriate must be "reasonably
necessary for the construction, expansion, and
efficient maintenance and operation of the
transmission system and grid and the efficient
operation and maintenance of the subtransmission
systems."67 The said provision likewise states that
"[respondent NGCP] may acquire such private
property as is actually necessary for the realization
of the purposes for which this franchise is
granted[.]"68

Even without the foregoing provision of the law,
considering that the expropriation is done, not
directly, but by another government agency or a
municipal corporation, and by virtue of an
authorizing statute which does not specify the
property to be taken, jurisprudence holds that the
courts may look into the necessity of the taking.69
In its Amended Complaint, respondent NGCP
alleged that "[t]o enable plaintiff to construct and
maintain the Mariveles-Limay 230 kV Transmission
Line Project, it is both necessary and urgent to
acquire, upon payment of just compensation, the
above-described portions of the subject property
to ensure stability and reliability of power supply in
the provinces of Bataan and Zambales, and in the
future, in other parts of the
country."70 Respondent NGCP also alleged that
during the negotiations conducted between the
parties, petitioner PAFC proposed another route
(at the back portion of the subject property), which
was found to be not technically sound. 71
It must be stressed that in the instant Petition,
petitioner PAFC does not allege that the Mariveles-
Limay 230 kV Transmission Line Project is
unnecessary and unreasonable. It only alleges that
the subject property is already devoted by law for
a specific purpose and that it is a property devoted
to public use.
The Court also observes that petitioner PAFC, in its
Answer to Amended Complaint,72did not make any
specific denial as to the allegations made by
respondent NGCP in its Amended Complaint that
the Mariveles-Limay 230 kV Transmission Line
Project is necessary and urgent to ensure the
stability and reliability of power supply in the
provinces of Bataan and Zambales, and that the
alternative route proposed by petitioner PAFC to
respondent NGCP was not found to be technically
feasible.
It is an elementary rule in remedial law that
material averments in the complaint, other than
those as to the amount of unliquidated
damages, shall be deemed admitted when not
specifically denied.73
It is also telling that after the Complaint was filed in
2011, the parties entered into a Tripartite
Agreement74 on August 17, 2012, whereby the
parties, including petitioner PAFC, acknowledged
that it was necessary for respondent NGCP to
establish the Mariveles-Limay 230 kV Transmission
Line Project due to the increased demand for
electricity in the provinces of Bataan and Zambales,
and that the technical teams of the parties already
agreed on a revised route that provided for a safe
and viable route for the transmission lines, taking
into consideration the safety and security concerns
of Orica.75
Therefore, the Court is sufficiently convinced that
respondent NGCP's act of expropriating the subject
property was reasonably necessary for the
realization of the purposes for which its franchise
is granted.
Premises considered, the Court upholds the
assailed Order of Expropriation issued by the RTC,
considering that respondent NGCP validly
expropriated the subject property.
WHEREFORE, the instant appeal is DENIED. The
Order dated February 11, 2016 of the Regional Trial
Court of Mariveles, Bataan, Branch 4 issued in SCA
Case No. 104-ML is AFFIRMED.
SO ORDERED.
G.R. No. 211269, June 15, 2016
RUBEN E. TIU, Petitioner, v. HON. NATIVIDAD G.
DIZON, ACTING CHAIRPERSON OF THE BOARD OF
PARDONS AND PAROLE, HON. FRANKLIN JESUS
BUCAYU, DIRECTOR OF THE BUREAU OF
CORRECTIONS, HON. SECRETARY LEILA M. DE LIMA
OF THE DEPARTMENT OF JUSTICE, HON. PAQUITO
N. OCHOA JR., THE EXECUTIVE
SECRETARY, Respondents.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for habeas
corpus1 filed by petitioner Ruben E. Tiu
(petitioner), who is detained at the Sablayan Prison
and Penal Farm in Sablayan, Occidental Mindoro,
seeking his immediate release from prison on the
strength of his conditional pardon without parole
conditions, as well as the automatic reduction of
his sentence by virtue of his status as a penal In the meantime, President Benigno Simeon C.
colonist.2chanrobleslaw Aquino III signed into law Republic Act No. (RA)
10592,18 which, subject to its provisions, would
The Facts substantially increase the Good Conduct Time
Allowance (GCTA) of qualified inmates. Thus, on
On June 16, 2000, petitioner and two others 3 were July 27, 2013, petitioner's carpeta was returned to
found guilty beyond reasonable doubt by the the Bureau of Corrections in Muntinlupa City for
Regional Trial Court of Makati City, Branch 143, of the re-computation of his time
selling, delivering, and giving away to a poseur- served.19chanrobleslaw
buyer 1,977 grams of methamphetamine
hydrochloride, commonly known as "shabu" a On July 7, 2014, petitioner filed the instant
regulated drug, without authority of law or Amended Petition for Habeas Corpus,20 insisting
corresponding license therefor.4 Consequently, on the efficacy and enforceability of his conditional
they were sentenced to suffer the penalty pardon without parole conditions, which allegedly
of reclusion perpetua and to pay the fine of necessitates his release from prison. Further, he
P10,000,000.00 each.5 Their conviction, which was claims that he is entitled to nineteen (19) years and
affirmed by the Court in a Decision6 dated March seven (7) months of GCTA, computed hereafter,
10, 2004, became final and executory on July 29, which, when tacked to his actual service of
2004.7chanrobleslaw fourteen (14) years and nine (9) months, would add
up to thirty-four (34) years and four (4) months, or
On March 24, 2009, the Board of Pardons and more than his alleged reduced sentence of thirty
Parole (BPP) issued Resolution No. 022-3- (30) years:21
098 recommending the grant of executive
clemency to petitioner, among many others. On DAYS MONTHLY
MONTHS
June 3, 2010, acting on said recommendation, then GCTA GCTA
President Gloria Macapagal-Arroyo (PGMA)
granted9 him "conditional pardon without parole 01 October 1999 -
20 days 24 months
conditions,"10 but was, nonetheless, still "subject 01 October 2001
to the conditions indicated in [the individual
pardon papers]."11 It turned out, however, that no 01 October 2002 -
23 days 36 months
such papers were issued in petitioner's favor. Thus, 01 October 2005
petitioner repeatedly requested12 for a certificate
of conditional pardon without parole conditions 01 October 2006 -
25 days 178 months
from the Legal Affairs Office of the Office of the 01 October 2010
President (OP), but said requests were denied by
Deputy Executive Secretary for Legal Affairs 01 October 2011 -
30 days 44 months
Michael G. Aguinaldo (Deputy Executive Secretary 01 July 2014
Aguinaldo) in three (3) separate letters dated
March 13, 2013,13 August 12, 2013,14 and August He argues that, since he was granted a "colonist
14, 2013,15 informing petitioner that the records of status" by then Director of Corrections Gaudencio
his case were referred back to the BPP. Respondent S. Pangilinan (Director of Corrections Pangilinan)
Natividad G. Dizon, Chairman of the BPP, on December 21, 2011, as contained in
confirmed in a letter16 dated September 5, 2013 Correction's Order No. 015-5-2012,22 his sentence
that: (a) petitioner's Certificate of Conditional was automatically reduced to thirty (30)
Pardon without Parole Conditions was not signed years23 pursuant to Section 7 (b), Chapter 3, Part II,
by PGMA; (b) consequently, the documents Book I of the Bureau of Corrections Operating
relative to petitioner's case were returned to the Manual (BuCor-OM), the pertinent portions of
BPP; and (c) the BPP had resolved to defer action which read as follows:ChanRoblesVirtualawlibrary
thereon pending compliance with all the basic SECTION 7. Privileges of a colonist. - A colonist shall
requirements for executive have the following
clemency.17chanrobleslaw privileges:ChanRoblesVirtualawlibrary
 a. credit of an additional GCTA of five (5)
days for each calendar month while he
retains said classification aside from
the regular GCTA authorized under
Article 97 of the Revised Penal Code;
b. automatic reduction of the life
sentence imposed on the colonist to a
sentence of thirty (30) years;
x x x x (Emphasis and underscoring supplied)
To bolster his claim of reduction of sentence,
petitioner cites24 Sections 5 and 7 of Act No.
2489,25cralawred which provide for automatic
modification of sentence from life imprisonment to
thirty (30) years for prisoners receiving and
retaining the classification of penal colonists or
trusties. He theorizes26 that, although said
law requires executive approval for such
classification, his colonist status was nonetheless
"regularly awarded" by the Director of Corrections
whose authority to so classify him as such is
derived from Section 6, Chapter 3, Part II, Book I of
the BuCor-OM. The aforementioned provisions
read:ChanRoblesVirtualawlibrary
Provisions in Act No. 2489
Section 5. Prisoners serving sentences of life
imprisonment receiving and retaining the
classification of penal colonists or trusties will
automatically have the sentence of life
imprisonment modified to a sentence of thirty
years when receiving the executive approval for
this classification upon which the regular credit
now authorized by law and special credit
authorized in the preceding paragraph, for good
conduct, may be made.
Section 7. The provisions of this Act as applied in
the case of penal colonists and trusties may, by
executive approval and upon recommendation of
the Director of Prisons [(now Director of
Corrections)], be made applicable to all first-class
workmen confined in Bilibid Prison who have
earned the privilege of classification as penal
colonists or trusties by serving one-fifth of the time
sentence as imposed by the court, or seven years
in the case of a life-sentenced prisoner, in addition
to the compensation allowed, if any of such first-
class workmen shall by written petition elect to
remain in the industrial division at Bilibid
Prison: Provided, That no prisoner shall receive the
benefit of this section during the first two years of
imprisonment unless authorized by the Director of
Prisons [(now Director of Corrections)] for special
reasons. (Emphases and underscoring supplied)
Section 6, Chapter 3, Part II, Book I of the BuCor-
OM
Section 6. Colonist. - The Director may, upon the
recommendation of the Classification Board,
classify an inmate who has the following
qualifications as a colonist:
a. be at least a first class inmate and has
served one (1) year immediately
preceding the completion of the
period specified in the following
qualifications;
b. has served imprisonment with good
conduct for a period equivalent to one
fifth (1/5) of the maximum term of his
prison sentence, or seven (7) years in
the case of a life sentence. (Emphasis
and underscoring supplied)
Finally, petitioner invokes Section 527 of RA 10592,
which provides that the time allowances for good
conduct once granted shall not be revoked.28 He
further proposes that RA 10592 be given
retroactive effect in light of the liberal construction
provided for in the rules to favor detained or
convicted prisoners like him.29chanrobleslaw
On the other hand, herein respondents, through
the Office of the Solicitor General (OSG),
maintain30 that a prisoner serving a sentence of life
imprisonment receiving and retaining classification
as a penal colonist will automatically have his
sentence modified to thirty (30) years of
imprisonment only "when receiving the executive
approval for this classification."31 However,
petitioner failed to obtain such executive approval.
They argue further against petitioner's reliance on
the BuCor-OM, which is a mere administrative rule
or regulation that cannot amend Act No. 2489 by
abridging or expanding its scope.32 Petitioner's
colonist status granted merely by the Director of
Corrections, without executive approval, did not
modify his sentence.33 Hence, there being no
unlawful restraint, no writ of habeas corpus should
be issued in his favor.
The Issue Before the Court

The essential issue for the Court's resolution is
whether or not a writ of habeas corpus should be
issued in favor of petitioner.
The Court's Ruling
The petition lacks merit.
The object of the writ of habeas corpus is to inquire
into the legality of the detention, and, if the
detention is found to be illegal, to require the
release of the detainee. Well-settled is the rule
that the writ will not issue where the person in
whose behalf the writ is sought is in the custody of
an officer under process issued by a court or judge
with jurisdiction or by virtue of a judgment or order
of a court of record.34 The writ is denied if the
petitioner fails to show facts that he is entitled
thereto ex merito justicias.35chanrobleslaw
In this case, petitioner is serving sentence by virtue
of a final judgment convicting him of the offense of
selling and delivering prohibited drugs defined and
penalized under Section 15, Article III of RA
6425,36 as amended by RA 7659.37 He failed to
show, however, that his further incarceration is no
longer lawful and that he is entitled to relief under
a writ of habeas corpus.
First. Petitioner's insistence on the efficacy and
enforceability of the conditional pardon without
parole conditions granted to him by PGMA on June
3, 2010 deserves scant consideration.
It must be emphasized that pardon is an act of
grace, proceeding from the power entrusted with
the execution of the laws, which exempts the
individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has
committed. It is the private, though official act of
the executive magistrate, delivered to the
individual for whose benefit it is intended and not
communicated officially to the court. A pardon is a
deed, to the validity of which delivery is
essential.38chanrobleslaw
The executive clemency extended by PGMA on
June 3, 2010 to a number of prisoners including
petitioner was made "subject to the conditions
indicated in the corresponding documents."39 It is
undisputed, however, that no individual pardon
papers were issued in petitioner's favour, thereby
rendering the grant of executive clemency to him
as incomplete and ineffective, as clarified by
Deputy Executive Secretary Aguinaldo. 40 The
necessity for the individual pardon papers is best
explained by the nature of a conditional pardon,
which is "a contract between the sovereign power
or the Chief Executive and the convicted criminal
to the effect that the former will release the latter
subject to the condition that if he does not comply
with the terms of the pardon, he will be
recommitted to prison to serve the unexpired
portion of the sentence or an additional one. By the
pardonee's consent to the terms stipulated in this
contract, the pardonee has thereby placed himself
under the supervision of the Chief Executive or his
delegate who is duty-bound to see to it that the
pardonee complies with the terms and conditions
of the pardon."41 The individual pardon papers,
therefore, contain the terms and conditions of the
contract of pardon, the compliance of which is
essential to the pardonee's freedom from
recommitment to prison.
Notably, when the records of petitioner's case
were referred back to the BPP, it required
compliance first with all the basic requirements for
executive clemency before acting thereon.42 This is
not to say, however, that petitioner's pardon
papers may not have been issued due to non-
compliance with the requirements, which is a
matter that the Court shall not, and could not,
resolve here. This is because the grant of pardon
and the determination of the terms and conditions
of a conditional pardon are purely executive acts
which are not subject to judicial
scrutiny.43chanrobleslaw
Second. As correctly argued by the OSG, the
conferment by the Director of Corrections of a
colonist status to petitioner did not operate to
reduce the latter's sentence. Section 5 of Act No.
2489 is clear and unambiguous: "[p]risoners
serving sentences of life imprisonment receiving
and retaining the classification of penal colonists or
trusties will automatically have the sentence of life
imprisonment modified to a sentence of thirty
years when receiving the executive approval for this
classification upon which the regular credit now
authorized by law and special credit authorized in
the preceding paragraph, for good conduct, may be
made."44chanrobleslaw

The wording of the law is such that the act of
classification as a penal colonist or trustie is
separate from and necessarily precedes the act of
approval by the Executive. Under Section 6,
Chapter 3, Part II, Book I of the BuCor-OM quoted
earlier, the Director of Corrections may, upon the
recommendation of the Classification Board 45 of
the Bureau of Corrections, classify an inmate as a
colonist. It is crucial, however, that the prisoner not
only receives, but retains such classification,
because the grant of a colonist status may, for
cause, be revoked at any time by the
Superintendent with the approval of the Director
of Corrections pursuant to Section 946 of the same
Chapter. It is the classification of the penal colonist
and trustie of the Director of Corrections which
subsequently receives executive approval.
The foregoing is bolstered by the fact that the
reduction of a prisoner's sentence is a partial
pardon,47and our Constitution reposes in the
President the power and the exclusive prerogative
to extend the same.48 The 1987 Constitution,
specifically under Section 19, Article VII thereof,
provides that the President possesses the power to
grant pardons, along with other acts of executive
clemency,49 which petitioner explicitly recognized
by applying for commutation of sentence even
during the pendency of his request for the
implementation of the conditional
50
pardon. Section 19, Article VII of the 1987
Constitution reads:ChanRoblesVirtualawlibrary
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the
President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with
the concurrence of a majority of all the Members
of the Congress.
It has long been recognized that the exercise of the
pardoning power, notwithstanding the judicial
determination of guilt of the accused, demands
the exclusive exercise by the President of the
constitutionally vested power.51 Stated otherwise,
since the Chief Executive is required by the
Constitution to act in person, he may not delegate
the authority to pardon prisoners under the
doctrine of qualified political agency, which
"essentially postulates that the heads of the
various executive departments are the alter egos
of the President, and, thus, the actions taken by
such heads in the performance of their official
duties are deemed the acts of the President unless
the President himself should disapprove such
acts."52chanrobleslaw
In sum, there being no unlawful restraint on
petitioner's liberty, no relief under a writ of habeas
corpus can be granted to him.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.chanRoblesvirtualL
G.R. No. 220598
GLORIA MACAPAGAL ARROYO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND THE
SANDIGANBAYAN, (First Division), Respondents
RESOLUTION
BERSAMIN,, J.:
On July 19, 2016, the Court promulgated its
decision, disposing:
WHEREFORE, the Court GRANTS the petitions
for certiorari; ANNULS and SETS ASIDE the
resolutions issued in Criminal Case No. SB-12-CRM-
0174 by the Sandiganbayan on April 6, 2015 and
September 10, 2015; GRANTS the petitioners'
respective demurrers to evidence; DISMISSES
Criminal Case No. SB-12-CRM-0174 as to the
petitioners GLORIAMACAPAGAL-
ARROYO and BENIGNOAGUAS for insufficiency of
evidence; ORDERS the immediate release from
detention of said petitioners; and MAKES no
pronouncements on costs of suit.
SO ORDERED. 1
On August 3, 2016, the State, through the Office of
the Ombudsman, has moved for the
reconsideration of the decision, submitting that:
I. THIS HONORABLE COURT'S GIVING DUE COURSE
TO A CERTIORARI ACTION ASSAILING AN
INTERLOCUTORY ORDER DENYING DEMURRER TO
EVIDENCE VIOLA TES RULE 119, SECTION 23 OF
THE RULES OF COURT, WHICH PROVIDES THAT AN
ORDER DENYING THE DEMURRER TO EVIDENCE
SHALL NOT BE REVIEWABLE BY APPEAL OR BY
CERTIORARI BEFORE JUDGMENT.
II. THE HONORABLE COURT COMMITTED GRAVE
ERRORS WHICH AMOUNT TO A VIOLATION OR
DEPRIVATION OF THE STATE'S FUNDAMENTAL
RIGHT TO DUE PROCESS OF LAW.
A. THE DECISION
REQUIRES ADDITIONAL ELEMENTS IN THE
PROSECUTION OF
PLUNDER, VIZ. IDENTIFICATION OF THE
MAIN PLUNDERER AND PERSONAL
BENEFIT TO HIM/HER, BOTH OF WHICH
ARE NOT PROVIDED IN THE TEXT OF
REPUBLIC ACT (R.A.) NO. 7080.
B. THE EVIDENCE PRESENTED BY THE
PROSECUTION WAS NOT FULLY TAKEN
INTO ACCOUNT, INCLUDING BUT NOT
LIMITED TO THE IRREGULARITIES IN THE
CONFIDENTIAL/INTELLIGENCE FUND (CIF)
DISBURSEMENT PROCESS, QUESTIONABLE
PRACTICE OF CO-MINGLING OF
FUNDS AND AGUAS' REPORTS TO THE
COMMISSION ON AUDIT (COA) THAT BULK
OF THE PHP365,997,915.00 WITHDRAWN
FROM THE PHILIPPINE CHARITY
SWEEPSTAKES OFFICE'S (PCSO) CIF
WERE DIVERTED TO THE ARROYO-HEADED
OFFICE OF THE PRESIDENT.
C. ARROYO AND AGUAS, BY INDISPENSABLE
COOPERATION, IN CONSPIRACY WITH
THEIR COACCUSED IN SB-12-CRM-0174,
COMMITTED PLUNDER VIA· A COMPLEX
ILLEGAL SCHEME WHICH DEFRAUDED
PCSO IN HUNDREDS OF MILLIONS OF
PESOS.
D. EVEN ASSUMING THAT THE ELEMENTS
OF PLUNDER WERE NOT PROVEN BEYOND
REASONABLE DOUBT, THE EVIDENCE
PRESENTED BY THE PEOPLE SHOWS,
BEYOND REASONABLE DOUBT, THAT
ARROYO, AGUAS AND THEIR COACCUSED
IN SB-12-CRM-0174 ARE GUILTY OF
MALVERSATION.2
In contrast, the petitioners submit that the decision
has effectively barred the consideration and
granting of the motion for reconsideration of the
State because doing so would amount to the re-
prosecution or revival of the charge against them
despite their acquittal, and would thereby violate
the constitutional proscription against double
jeopardy.
Petitioner Gloria M. Macapagal-Arroyo (Arroyo)
points out that the State miserably failed to prove
the corpus delicti of plunder; that the Court
correctly required the identification of the main
plunderer as well as personal benefit on the part of
the raider of the public treasury to enable the
successful prosecution of the crime of plunder;
that the State did not prove the conspiracy that
justified her inclusion in the charge; that to sustain
the case for malversation against her, in lieu of
plunder, would violate her right to be informed of
the accusation against her because the information
did not necessarily include the crime of
malversation; and that even if the information did
so, the constitutional prohibition against double
jeopardy already barred the re-opening of the case
for that purpose.
Petitioner Benigno B. Aguas echoes the
contentions of Arroyo in urging the Com1 to deny
the motion for reconsideration.
In reply, the State avers that the prohibition against
double jeopardy does not apply because it was
denied its day in court, thereby rendering the
decision void; that the Court should re-examine the
facts and pieces of evidence in order to find the
petitioners guilty as charged; and that the
allegations of the information sufficiently included
all that was necessary to fully inform the
petitioners of the accusations against them.
Ruling of the Court
The Court DENIES the motion for reconsideration
for its lack of merit.
To start with, the State argues' that the
consolidated petitions for certiorari were improper
remedies in light of Section 23, Rule 119 of
the Rules of Court expressly prohibiting the review
of the denial of their demurrer prior to the
judgment in the case either by appeal or
by certiorari; that the Court has thereby limited its
own power, which should necessarily prevent the
giving of due course to the petitions
for certiorari, as well as the undoing of the order
denying the petitioners' demurrer to evidence;
that the proper remedy under the Rules of
Court was for the petitioners to proceed to trial
and to present their evidence-in-chief thereat; and
that even if there had been grave abuse of
discretion attending the denial, the
Court's certiorari powers should be exercised only
upon the petitioners' compliance with the
stringent requirements of Rule 65, particularly with
the requirement that there be no plain, speedy or
adequate remedy in the ordinary course of law,
which they did not establish.
Section 23, Rule 119 of the Rules of
Court, pertinently provides:
Section 23. Demurrer to evidence. – xxx
xxxx
The order denying the motion for leave of court to
file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or
by certiorari before judgment. (n)
The argument of the State, which is really a
repetition of its earlier submission, was squarely
resolved in the decision, as follows:
The Court holds that it should take cognizance of
the petitions for certiorari because
the Sandiganbayan, as shall shortly be
demonstrated, gravely abused its discretion
amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not
proper to assail such an interlocutory order issued
by the trial court because of the availability of
another remedy in the ordinary course of law.
Moreover, Section 23, Rule 119 of the Rules of
Court expressly provides that "the order denying
the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before
judgment." It is not an insuperable obstacle to this
action, however, that the denial of the demurrers
to evidence of the petitioners was an interlocutory
order that did not terminate the proceedings, and
the proper recourse of the demurring accused was
to go to trial, and that in case of their conviction
they may then appeal the conviction, and assign
the denial as among the errors to be reviewed.
Indeed, it is doctrinal that the situations in which
the writ of certiorari may issue should not be
limited, because to do so -
x x x would be to destroy its comprehensiveness
and usefulness. So wide is the discretion of the
com1 that authority is not wanting to show
that certiorari is more discretionary than either
prohibition or mandamus. In the exercise of
oursuperintending control over other courts, we
are to be guided by all the circumstances of each
particular case 'as the ends of justice may require.'
So it is that the writ will be granted where
necessary to prevent a substantial wrong or to do
substantial justice.
The Constitution itself has imposed upon the Court
and the other courts of justice the duty to correct
errors of jurisdiction as a result of capricious,
arbitrary, whimsical and despotic exercise of
discretion by expressly incorporating in Section 1 of
Article VIII the following provision:
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. The exercise of this power to correct
grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government cannot be
thwarted by rules of procedure to the contrary or
for the sake of the convenience of one side. This is
because the Court has the bounden constitutional
duty to strike down grave abuse of
discretion whenever and wherever it is committed.
Thus, notwithstanding the interlocutory character
and effect of the denial of the demurrers to
evidence, the petitioners as the accused could avail
themselves of the remedy of certiorari when the
denial was tainted with grave abuse of discretion.
As we shall soon show, the Sandiganbayan as the
trial court was guilty of grave abuse of discretion
when it capriciously denied the demurrers to
evidence despite the absence of competent and
sufficient evidence to sustain the indictment for
plunder, and despite the absence of the factual
bases to expect a guilty verdict.3
We reiterate the foregoing resolution, and stress
that the prohibition contained in Section 23, Rule
119 of the Rules of Court is not an insuperable
obstacle to the review by the Court of the denial of
the demurrer to evidence through certiorari. We
have had many rulings to that effect in the past. For
instance, in Nicolas v. Sandiganbayan,4the Court
expressly ruled that the petition for certiorari was
the proper remedy to assail the denial of the
demurrer to evidence that was tainted with grave
abuse of discretion or excess of jurisdiction, or
oppressive exercise of judicial authority.
Secondly, the State submits that its right to due
process was violated because the decision imposed
additional elements for plunder that neither '
Republic Act No. 7080 nor jurisprudence had
theretofore required, i.e., the identification of the
main plunderer, and personal benefit on the part
of the accused committing the predicate crime of
raid on the public treasury. The State complains
that it was not given the opportunity to establish
such additional elements; that the imposition of
new elements fu1iher amounted to judicial
legislation in violation of the doctrine of separation
of powers; that the Court nitpicked on the different
infirmities of the information despite the issue
revolving only around the sufficiency of the
evidence; and that it established all the elements
of plunder beyond reasonable doubt.
The State cites the plain meaning rule to highlight
that the crime of plunder did not require personal
benefit on the part of the raider of the public
treasury. It insists that the definition of raids on the
public treasury, conformably with the plain
meaning rule, is the taking of public money through
fraudulent or unlawful means, and such definition
does not require enjoyment or personal benefit on
the part of plunderer or on the part of any of his
co-conspirators for them to be convicted for
plunder.
The submissions of the State are unfounded.
The requirements for the identification of the main
plunderer and for personal benefit in the predicate
act of raids on the public treasury have been
written in R.A. No. 7080 itself as well as embedded
in pertinent jurisprudence. This we made clear in
the decision, as follows:
A perusal of the information suggests that what the
Prosecution sought to show was an implied
conspiracy to commit plunder among all of the
accused on the basis of their collective actions prior
to, during and after the implied agreement. It is
notable that the Prosecution did not allege that the
conspiracy among all of the accused was by express
agreement, or was a wheel conspiracy or a chain
conspiracy.
This was another fatal flaw of the Prosecution.
In its present version, under which the petitioners
were charged, Section 2 of Republic Act No. 7080
(Plunder Law) states:
Section 2. Definition of the Crime of Plunder:
Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives
by affinity or consanguinity, business associates,
subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through
a combination or series of overt criminal acts as
described in Section 1 (d) hereof in the aggregate
amount or total value of at least Fifty million pesos
(₱50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion
perpetua to death. Any person who participated
with the said public officer in the commission of an
offense contributing to the crime of plunder shall
likewise be punished for such offense. In the
imposition of penalties, the degree of participation
and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal
Code, shall be considered by the court. The court
shall declare any and all ill-gotten wealth and their
interests and other incomes and assets including
the properties and shares of stocks derived from
the deposit or investment thereof forfeited in favor
of the State. [As Amended by Section 12, Republic
Act No. 7659 (The Death Penalty Law)]
Section l(d) of Republic Act No. 7080 provides:
Section 1. Definition of terms. - As used in this Act,
the term:
xxxx
d. "Ill-gotten wealth" means any asset, property,
business enterprise or material possession of any
person within the purview of Section two (2)
hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates
and/or business associates by any combination or
series of the following means or similar schemes:
1. Through misappropriation, conversion,
misuse, or malversation of public funds or
raids on the public treasury;
2. By receiving, directly or indirectly, any
commission, gift, share, percentage,
kickbacks or any/or entity in connection
with any government contract or project or
by reason of the office or position of the
public officer concerned;
3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the
National Government or any of its
subdivisions, agencies or instrumentalities
or government-owned or controlled
corporations and their subsidiaries;
4. By obtaining, receiving or accepting
directly or indirectly any shares of stock,
equity or any other form of interest or
participation including the promise of
future employment in any business
enterprise or undertaking;
5. By establishing agricultural, industrial or
commercial monopolies or other
combinations and/or implementation of
decrees and orders intended to benefit
particular persons or special interests; or
6. By taking undue advantage of official
positi0n, authority, relationship,
connection or influence to unjustly enrich
himself or themselves at the expense and
to the damage and prejudice
The law on plunder requires that a particular public
officer must be identified as the one who amassed,
acquired or accumulated ill-gotten wealth because
it plainly states that plunder is committed by any
public officer who, by himself or in connivance with
members of his family, relatives by affinity or
consanguinity, business associates, subordinates
or other persons, amasses, accumulates or
acquires ill-gotten wealth in the aggregate amount
or total value of at least ₱50,000,000.00 through
a combination or series of overt criminal acts as
described in Section l(d) hereof. Surely, the law
requires in the criminal charge for plunder against
several individuals that there must be a main
plunderer and her co-conspirators, who may be
members of her family, relatives by affinity or
consanguinity, business associates, subordim1tes
or other persons. In other words, the allegation of
the wheel conspiracy or express conspiracy in the
information was appropriate because the main
plunderer would then be identified in either
manner. Of course, implied conspiracy could also
identify the main plunderer, but that fact must be
properly alleged and duly proven by the
Prosecution.
This interpretation is supported by Estrada v.
Sandiganbayan, where the Court explained the
nature of the conspiracy charge and the necessity
for the main plunderer for whose benefit the
amassment, accumulation and acquisition was
made, thus:
There is no denying the fact that the "plunder of an
entire nation resulting in material damage to the
national economy" is made up of a complex and
manifold network of crimes. In the crime of
plunder, therefore, different parties may be united
by a common purpose. In the case at bar, the
different accused and their different criminal acts
have a commonality - to help the former President
amass, accumulate or acquire ill-gotten wealth.
Sub-paragraphs (a) to (d) in the Amended
Information alleged the different participation of
each accused in the conspiracy. The gravamen of
the conspiracy charge, therefore, is not that each
accused agreed to receive protection money from
illegal gambling, that each misappropriated a
portion of the tobacco excise tax, that each
accused ordered the GSIS and SSS to purchase
shares of Belle Corporation and receive
commissions from such sale, nor that each unjustly
enriched himself from commissions, gifts and
kickbacks; rather, it is that each of them, by their
individual acts, agreed to participate, directly or
indirectly, in the amassing, accumulation and
acquisition of ill-gotten wealth of and/or for former
President Estrada. 5 [bold underscoring supplied
for emphasis]
Indeed, because plunder is a crime that only a
public official can commit by amassing,
accumulating, or acquiring ill-gotten wealth in the
aggregate amount or total value of at least
₱50,000,000.00, the identification in the
information of such public official as the main
plunderer among the several individuals thus
charged is logically necessary under the law itself.
In particular reference to Criminal Case No. SB-12-
CRM-0174, the individuals charged therein -
including the petitioners - were 10 public officials;
hence, it was only proper to identify the main
plunderer or plunderers among the 10
accused who herself or himself had amassed,
accumulated, or acquired ill-gotten wealth with the
total value of at least ₱50,000,000.00.
The phrase raids on the public treasury as used in
Section 1 (d) of R. A. No. 7080 is itself ambiguous.
In order to ascertain the objective meaning of the
phrase, the act of raiding the public treasury
cannot be divided into parts. This is to differentiate
the predicate act of raids on the public
treasury from other offenses involving property,
like robbery, theft, or estafa. Considering that R.A.
No. 7080 does not expressly define this predicate
act, the Court has necessarily resorted to statutory
construction. In so doing, the Court did not adopt
the State's submission that personal benefit on the
part of the accused need not be alleged and shown
because doing so would have defeated the clear
intent of the law itself,6 which was to punish the
amassing, accumulating, or acquiring of ill-gotten
wealth in the aggregate amount or total value of at
least ₱150,000,000.00 by any combination or
series of acts of misappropriation, conversion,
misuse, or malversation of public funds or raids on
the public treasury.
As the decision has observed, the rules of statutory
construction as well as the deliberations of
Congress indicated the intent of Congress to
require personal benefit for the predicate act
of raids on the public treasury, viz.:
The phrase raids on the public treasury is found in
Section 1 (d) of R.A. No. 7080, which provides:
Section l .Definition of Terms. – xxx
xxxx
d) Ill-gotten wealth means any asset, prope1iy,
business enterprise or material possession of any
person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates
and/or business associates by any combination or
series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse,
or malversation of public funds or raids on the
public treasury;
xxxx
To discern the proper import of the phrase raids on
the public treasury, the key is to look at the
accompanying words: misappropriation,
conversion, misuse or malversation of public
funds. This process is conformable with the maxim
of statutory construction noscitur a sociis, by
which the correct construction of a particular word
or phrase that is ambiguous in itself or is equally
susceptible of various meanings may be made by
considering the company of the words in which the
word or phrase is found or with which it is
associated. Verily, a word or phrase in a statute is
always used in association with other words or
phrases, and its meaning may, therefore, be
modified or restricted by the latter.
To convert connotes the act of using or disposing of
another's property as if it were one's own; to
misappropriate means to own, to take something
for one's own benefit; misuse means "a good,
substance, privilege, or right used improperly,
unforcsccably, or not as intended;"
and malversation occurs when "any public officer
who, by reason of the duties of his office, is
accountable for public funds or property, shall
appropriate the same or shall take or
misappropriate or shall consent, through
abandonment or negligence, shall permit any other
person to take such public funds, or property,
wholly or partially." The common thread that binds
all the four terms together is that the public
officer used the property taken. Considering
that raids on the public treasury is in the company
of the four other terms that require the use of the
property taken, the phrase raids on the public
treasury similarly requires such use of the property
taken. Accordingly, the Sandiganbayan gravely
erred in contending that the mere accumulation
and gathering constituted the forbidden act
of raids on the public treasury. Pursuant to the
maxim of noscitur a sociis, raids on the public
treasury requires the raider to use the property
taken impliedly for his personal benefit. 7
The Prosecution asserts that the Senate
deliberations removed personal benefit as a
requirement for plunder. In not requiring personal
benefit, the Sandiganbayan quoted the following
exchanges between Senator Enrile and Senator
Tafiada, viz.:
Senator Enrile. The word here, Mr. President, "such
public officer or person who conspired or
knowingly benefited". One does not have to
conspire or rescheme. The only element needed is
that he "knowingly benefited". A candidate for the
Senate for instance, who received a political
contribution from a plunderer, knowing that the
contributor is a plunderer and therefore, he
knowingly benefited from the plunder, would he
also suffer the penalty, Mr. President, for life
imprisonment?
Senator Tafiada. In the committee amendments,
Mr. President, we have deleted these lines 1 to 4
and part of line 5, on page 3. But, in a way, Mr.
President, it is good that the Gentleman is bringing
out these questions, I believe that under the
examples he has given, the Court will have to...
Senator Enrile. How about the wife, Mr. President,
he may not agree with the plunderer to plunder the
country but because she is a dutiful wife or a
faithful husband, she has to keep her or his vow of
fidelity to the spouse. And, of course, she enjoys
the benefits out of the plunder. Would the
Gentleman now impute to her or him the crime of
plunder simply because she or he knowingly
benefited out of the fruits of the plunder and,
therefore, he must suffer or he must suffer the
penalty of life imprisonment?
The President. That was stricken out already in the
Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4
and part of line 5 were stricken out in the
Committee amendment. But, as I said, the
examples of the Minority Floor Leader are still
worth spreading the Record. And, I believe that in
those examples, the Court will have just to take
into consideration all the other circumstances
prevailing in the case and the evidence that will be
submitted.
The President. In any event, 'knowingly benefited'
has already been stricken off."
The exchanges between Senator Enrile and
Senator Tañada reveal, therefore, that what was
removed from the coverage of the bill and the final
version that eventually became the law was a
person who was not the main plunderer or a co-
conspirator, but one who personally benefited
from the plunderers' action. The requirement of
personal benefit on the part of the main plunderer
or his co-conspirators by virtue of their plunder
was not removed.
As a result, not only did the Prosecution fail to show
where the money went but, more importantly, that
GMA and Aguas had personally benefited from the
same. Hence, the Prosecution did not prove the
predicate act of raids on the public treasury beyond
reasonable doubt. 8
Thirdly, the State contends that the Court did not
appreciate the totality of its evidence, particularly
the different irregularities committed in the
disbursement of the PCSO funds, i.e., the
commingling of funds, the non-compliance with
LOI No. 1282, and the unilateral approval of the
disbursements. Such totality, coupled with the fact
of the petitioners' indispensable cooperation in the
pilfering of public funds, showed the existence of
the conspiracy to commit plunder among all of the
accused.
The contention lacks basis.
As can be readily seen from the decision, the Court
expressly granted the petitioners' respective
demurrers to evidence and dismissed the plunder
case against them for insufficiency of evidence
because:
x x x the Sandiganbayan as the trial court was guilty
of grave abuse of discretion when it capriciously
denied the demurrers to evidence despite the
absence of competent and sufficient evidence to
sustain the indictment for plunder, and despite the
absence of the factual bases to expect a guilty
verdict. 9
Such disposition of the Court fully took into
consideration all the evidence adduced against the
petitioners. We need not rehash our review of the
evidence thus adduced, for it is enough simply to
stress that the Prosecution failed to establish
the corpus delicti of plunder - that any or all of the
accused public officials, particularly petitioner
Arroyo, had amassed, accumulated, or acquired ill-
gotten wealth in the aggregate amount or total
value of at least ₱50,000,000.00.
Fourthly, in accenting certain inadequacies of the
allegations of the information, the Court did not
engage in purposeless nitpicking, and did not
digress from the primary task of determining the
sufficiency of the evidence presented by the State
against the petitioners. What the Court thereby
intended to achieve was to highlight what would
have been relevant in the proper prosecution of
plunder and thus enable itself to discern and
determine whether the evidence of guilt was
sufficient or not. In fact, the Court categorically
clarified that in discussing the essential need for
the identification of the main plunderer it was not
harping on the sufficiency of the information, but
was only enabling itself to search for and to find the
relevant proof that unequivocally showed
petitioner Arroyo as the "mastermind" - which was
how the Sandiganbayan had characterized her
participation - in the context of the implied
conspiracy alleged in the information. But the
search came to naught, for the information
contained nothing that averred her commission of
the overt act necessary to implicate her in the
supposed conspiracy to commit the crime of
plunder. Indeed, the Court assiduously searched
for but did not find the sufficient incriminatory
evidence against the petitioners. Hence, the
Sandiganbayan capriciously and oppressively
denied their demurrers to evidence.
Fifthly, the State posits that it established at least a
case for malversation against the petitioners.
Malversation is defined and punished under Article
217 of the Revised Penal Code, which reads thusly:
Article 217. Malversation of public funds or
property; Presumption of malversation. - Any
public officer who, by reason of the duties of his
office, is accountable for public funds or property,
shall appropriate the same or shall take or
misappropriate or shall consent, through
abandonment or negligence, shall permit any other
person to take such public funds, or property,
wholly or partially, or shall otherwise be guilty of
the misappropriation or malversation of such funds
or property, shall suffer:
1. The penalty of prision correccional in its
medium and maximum periods, if the
amount involved in the misappropriation or
malversation does not exceed two hundred
pesos.
2. The penalty of prision mayor in its
minimum and medium periods, if the
amount involved is more than two hundred
pesos but does not exceed six thousand
pesos.
3. The penalty of prision mayor in its
maximum period to reclusion temporal in
its minimum period, if the amount involved
is more than six thousand pesos but is less
than twelve thousand pesos.
4. The penalty of reclusion temporal, in its
medium and maximum periods, if the
amount involved is more than twelve
thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the
latter, the penalty shall be reclusion
temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also
suffer the penalty of perpetual special
disqualification and a fine equal to the amount of
the funds malversed or equal to the total value of
the property embezzled.
The failure of a public officer to have duly
forthcoming any public funds or property with
which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence
that he has put such missing funds or property to
personal use. (As amended by RA 1060).
The elements of malversation are that: (a) the
offender is an accountable public officer; (b)
he/she is responsible for the misappropriation of
public funds or property through intent or
negligence; and (c) he/she has custody of and
received such funds and property by reason of
his/her office. 10
The information in Criminal Case No. SB-12-CRM-
017411 avers:
The undersigned Assistant Ombudsman and Graft
Investigation and Prosecution Officer III, Office of
the Ombudsman, hereby accuse GLORIA
MACAPAGAL-ARROYO, ROSARIO C. URIARTE,
SERGIO O. VALENCIA, MANUEL L. MORATO, JOSE R.
TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA
AS. VALDES, BENIGNO B. AGUAS, REYNALDO A.
VILLAR and NILDA B. PLARAS, of the crime
of PLUNDER, as defined by, and penalized under
Section 2 of Republic Act (R.A.) No. 7080, as
amended by R.A. No. 7659, committed, as follows:
That during the period from January 2008 to June
2010 or sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction
of this Honorable Court, accused GLORIA
MACAPAGAL-ARROYO, then the President of the
Philippines, ROSARIO C. URIARTE, then General
Manager and Vice Chairman, SERGIO 0. VALENCIA,
then Chairman of the Board of Directors, MANUEL
L. MORA TO, JOSE R. TARUC V, RAYMUNDO T.
ROQUERO, MA. FATIMA AS. VALDES, then
members of the Board of Directors, BENIGNO B.
AGUAS, then Budget and Accounts Manager, all of
the Philippine Charity Sweepstakes Office (PCSO),
REYNALDO A. VILLAR, then Chairman, and NILDA B.
PLARAS, then Head of Intelligence/Confidential
Fund Fraud Audit Unit, both of the Commission on
Audit, all public officers committing the offense in
relation to their respective offices and taking
undue advantage of their respective official
positions, authority, relationships, connections or
influence, conniving, conspiring and confederating
with one another, did then and there willfully,
unlawfully and criminally 'amass,, accumulate
and/or acquire directly or indirectly, ill-gotten
wealth in the aggregate amount or total value of
THREE HUNDRED SIXTY FIVE MILLION NINE
HUNDRED NINETY SEVEN THOUSAND NINE
HUNDRED FIFTEEN PESOS (PHP365,997,915.00),
more or less, through any or a combination or a
series of overt or criminal acts, or similar schemes
or means, described as follows:
(a) diverting in several instances, funds
from the operating budget of PCSO to its
Confidential/Intelligence Fund that could
be accessed and withdrawn at any time
with minimal restrictions, and converting,
misusing, and/or illegally conveying or
transferring the proceeds drawn from said
fund in the aforementioned sum, also in
several instances, to themselves, in the
guise of fictitious expenditures, for their
personal gain and benefit;
(b) raiding the public treasury by
withdrawing and receiving, in several
instances, the above-mentioned amount
from the Confidential/Intelligence Fund
from PCSO's accounts, and or unlawfully
transferring or conveying the same into
their possession and control through
irregularly issued disbursement vouchers
and fictitious expenditures; and
(c) taking advantage of their respective
official positions, authority, relationships,
connections or influence, in several
instances, to unjustly enrich themselves in
the aforementioned sum, at the expense
of, and the damage and prejudice of the
Filipino people and the Republic of the
Philippines.
CONTRARY TO LAW.
In thereby averring the predicate act of
malversation, the State did not sufficiently allege
the aforementioned essential elements of
malversation in the information. The omission
from the information of factual details descriptive
of the aforementioned elements of malversation
highlighted the insufficiency of the allegations.
Consequently, the State's position is entirely
unfounded.
Lastly, the petitioners insist that the consideration
and granting of the motion for reconsideration of
the State can amount to a violation of the
constitutional prohibition against double jeopardy
because their acquittal under the decision was a
prior jeopardy within the context of Section 21,
Article III (Bill of Rights) of the 1987 Constitution, to
wit:
Section 21. No person shall be twice put in
jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute
a bar to another prosecution for the same act.
The insistence of the petitioners is fully warranted.
Indeed, the consideration and granting of the
motion for reconsideration of the State will
amount to the violation of the constitutional
guarantee against double jeopardy.
The Court's consequential dismissal of Criminal
Case No. SB-12- CRM-0174 as to the petitioners for
insufficiency of evidence amounted to
their acquittal of the crime of plunder charged
against them. In People v. Tan, 12the Court shows
why:
In People v. Sandiganbayan, this Com1 explained
the general rule that the grant of a demurrer to
evidence operates as an acquittal and is, thus, final
and unappealable, to wit:
The demurrer to evidence in criminal cases, such as
the one at bar, is ''filed after tile prosecution had
rested its case," and when the same is granted, it
calls "for an appreciation of the evidence adduced
by the prosecution and its sufficiency to warrant
conviction beyond reasonable doubt, resulting in
a dismissal of the case on the merits, tantamount
to an acquittal of the accused." Such dismissal of a
criminal case by the grant of demurrer to evidence
may not be appealed, for to do so would be to
place the accused in double jeopardy. The verdict
being one of acquittal, the case ends there.
xxxx
The rule on double jeopardy, however, is not
without exceptions. In People v. Laguio, Jr., this
Court stated that the only instance when double
jeopardy will not attach is when the RTC acted with
grave abuse of discretion, thus:
... The only instance when double ,jeopardy will not
attach is when the trial court acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction, such as where the prosecution was
denied the opportunity to present its case or
where the trial was a sham. However,
while certiorari may be availed of to correct an
erroneous acquittal, the petitioner in such an
extraordinary proceeding must clearly
demonstrate that the trial court blatantly abused
its authority to a point so grave as to deprive it of
its very power to dispense justice. 13
The constitutional prohibition against placing a
person under double jeopardy for the same
offense bars not only a new and independent
prosecution but also an appeal in the same action
after jeopardy had attached. 14 As such,
every acquittal becomes final immediately upon
promulgation and cannot be recalled for
correction or amendment. With the acquittal being
immediately final, granting the State's motion for
reconsideration in this case would violate the
Constitutional prohibition against double jeopardy
because it would effectively reopen the
prosecution and subject the petitioners to a second
jeopardy despite their acquittal.
It is cogent to remind in this regard that the
Constitutional prohibition against double jeopardy
provides to the accused three related protections,
specifically: protection against a second
prosecution for the same offense after acquittal;
protection against a second prosecution for the
same offense after conviction; and protection
against multiple punishments for the same
offense. 15The rationale for the three protections is
expounded in United States v. Wilson: 16
The interests underlying these three protections
arc quite similar. When a defendant has been once
convicted and punished for a particular crime,
principles of fairness and finality require that he
not be subjected to the possibility of further
punishment by being again tried or sentenced for
the same offense. Ex pa rte Lange, 18 Wall 163
(1874); In re Nielsen, 131 U.S. 176 (1889). When a
defendant has been acquitted of an offense, the
Clause guarantees that the State shall not be
permitted to make repeated attempts to convict
him,
"thereby subjecting him to embarrassment,
expense and ordeal, and compelling him to live in
a continuing state of anxiety and insecurity, as well
as enhancing the possibility that, even though
innocent, he may be found guilty."
Green v. United States, 355 U.S. 184, 187-188
(1957).
The policy of avoiding multiple trials has been
regarded as so important that exceptions to the
principle have been only grudgingly allowed.
Initially, a new trial was thought to be unavailable
after appeal, whether requested by the
prosecution or the defendant. See United States v.
Gibert, 25 F. Cas. 1287 (No. 15,204) (CCD Mass.
1834) (Story, J.). It was not until 1896 that it was
made clear that a defendant could seek a new trial
after conviction, even though the Government
enjoyed no similar right. United States v. Ball, 163
U.S. 662. (Bold underscoring supplied for
emphasis)
WHEREFORE, the Court DENIES the motion for
reconsideration for lack of merit.
SO ORDERED.
G.R. Nos. 235937-40, July 23, 2018
JOHANNE EDWARD B.
LABAY, Petitioner, v. SANDIGANBAYAN, THIRD
DIVISION, AND PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
VELASCO JR., J.:
The Case
Before the Court is a Petition for Certiorari under
Rule 65 of the Rules of Court from the Resolutions
dated July 10, 20171 and October 19, 20172 of the
Sandiganbayan, Third Division in Criminal Case Nos.
SB-17-CRM-0642 to 0643 and Criminal Case Nos.
SB-17-CRM-0644 to 0645. The first assailed
resolution denied petitioner's motion for
reinvestigation, among others, while the second
assailed motion denied petitioner's motion for
partial reconsideration of the first assailed
resolution.
The Facts
The case arose from the complaint dated May 11,
2015 filed by the Field Investigation Office I (FIO I)
of the Office of the Ombudsman against petitioner
Johanne Edward B. Labay (Petitioner Labay) for his
participation in the alleged anomalous utilization of
the Priority Development Assistance Fund (PDAF)
of former Representative of the 1st District of
Davao del Sur, Marc Douglas C. Cagas IV (Rep.
Cagas IV). The complaint was for violation of Article
217 (Malversation of Public Funds or Property),
Article 171 (Falsification of Public Documents),
paragraphs (1), (2), (4), and (7), Article 217 in
relation to Article 171 (Malversation thru
Falsification of Public Documents), all of the
Revised Penal Code (RPC), as well as Section 3,
paragraphs (a) and (e) of Republic Act (R.A.) No.
3019, as amended. The case was docketed as OMB-
C-C-15-0152.3
The complaint alleged that Rep. Cagas IV, in
conspiracy with other public officials and private
individuals such as petitioner Labay, through the
Technology Resource Center (TRC), sought the
release and transfer of his PDAF in the total
amount of Php6,000,000.00 to Farmer-business
Development Corporation (FDC), which was led by
its then president, herein petitioner Labay.
However, upon field verification conducted by the
FIO I, it appears that the livelihood projects funded
by Rep. Cagas IV's PDAF were never implemented
and were considered to be "ghost projects."4
In a Joint Order dated September 1, 2015, the
Ombudsman directed respondents to file their
respective counter-affidavits.5 Several
respondents filed their respective counter-
affidavits. However, copies of this Order could not
be served on petitioner Labay.6
According to the Ombudsman, it exerted diligent
efforts to serve copies of the September 1, 2015
Joint Order on petitioner Labay through his office
and at his last known address. However, the copies
were returned unserved because he was no longer
employed in that office and he was unknown at the
given residential address. As such, the Ombudsman
proceeded with the preliminary investigation
without any counter-affidavit or participation from
petitioner Labay.7
In a Resolution dated May 10, 2016, 8 the
Ombudsman found probable cause to indict Rep.
Cagas IV and his co-respondents, including
petitioner Labay, for conspiracy in the commission
of two counts of Violation of Section 3(e) of RA
3019, one count of Malversation of Public Funds,
and one count of Malversation thru Falsification.
Petitioner alleges that it was unknown to him that
preliminary investigations for the charges against
him were being conducted by the Ombudsman.
According to him, it was only sometime in October
2016 that he learned of the cases when his
daughter, Atty. Jo Blanca P.B. Labay, came across
the press releases of the Ombudsman wherein
petitioner was mentioned as among those who are
facing charges.9
On October 3, 2016, Atty. Labay, on behalf of her
father, attempted to secure information on the
cases from the Central Records of the
Ombudsman, but she was advised to submit a
written request. Accordingly, Atty. Labay sent the
Ombudsman a letter dated October 4, 2016 in
compliance with the said directive. 10
In a letter dated October 10, 2016, the
Ombudsman replied to Atty. Labay's request and
served on her copies of its May 10, 2016
Resolution. At the same time, the Ombudsman
directed Atty. Labay to file a motion for
reconsideration of the said Resolution within five
days from receipt thereof.11
Accordingly, petitioner, through Atty. Labay, filed
an Omnibus Motion for Reinvestigation and
Deferment of Filing of Information with Request for
Copies of Complaint-Affidavit and Supporting
Documents dated November 16, 2016.12 In said
Omnibus Motion, petitioner prayed that the
Ombudsman conduct a reinvestigation on his
alleged participation in the crimes charged and
take into consideration his answer and counter-
evidence which he would present. He pointed out
that he had neither been notified that a complaint
had been filed against him nor was furnished a
copy of the same. Thus, he argued that he was not
afforded an opportunity to present his defense and
to participate during the preliminary investigation.
More importantly, petitioner prayed that he be
furnished copies of the complaint�-affidavit and
other supporting documents and that he be given
time to gather his evidence and submit his answer
to the complaint. At the same time, he prayed for
the deferment of the filing of any charges against
him arising out of the May 10, 2016 Resolution
pending the reinvestigation of the case. 13
In its Order dated November 25, 2016, 14 the
Ombudsman denied petitioner Labay's Omnibus
Motion, ruling thus:
This Office had exerted diligent efforts to serve on
Labay copies of the 1 September 2015 Order
directing him to submit his counter-affidavit and
the 10 May 2016 Resolution finding him probably
guilty of the charges. The same were sent to his
office and at his last known address and were
returned unserved because he was no longer
employed in that office, or was unknown at the
given address. There was sufficient compliance
with due process.
The filing by Labay of the Omnibus Motion for
Reinvestigation on 16 November 2016 cured
whatever defect in the observance of due
process. Denial of due process cannot he success.
fully invoked by a party who has had the
opportunity to be heard on his motion for
reconsideration.
WHEREFORE, this Office, through the
undersigned, DENIES respondents Marc Douglas C.
Cagas IV's Motion for Reconsideration dated 10
August 2016; Maria Rosalinda M.
Lacsamana's Motion for Reconsideration dated 08
August 2016; Consuela Lilian R. Espiritu's Motion
for Reconsideration dated 10 August 2016; Marivic
V. Jover's Motion for Reconsideration dated 13
September 2016; and Johanne Edward B.
Labay's Motion for Reinvestigation and Deferment
of Filing of Information with Request for Copies of
Complaint-Affidavits and Supporting
Documents dated 16 November 2016.
All indictments against them, as originally
embodied in the Resolution dated 10 May
2016, STAND.
SO ORDERED.15 (Emphasis in the original)
Dissatisfied with this ruling, petitioner Labay filed
an Omnibus Motion for Reconsideration (of the
Order dated 25 November 2016) and Deferment of
Filing of Information with Reiterative Request for
Copies of Complaint-Affidavit and Supporting
Documents dated January 30, 2017.16 Petitioner
essentially reiterated his arguments in his first
omnibus motion, but added that the filing of the
said omnibus motion did not cure the defects in the
Ombudsman's failure to observe due process. 17
The Ombudsman treated this second Omnibus
Motion as a second motion for reconsideration and
denied the same for lack of merit in its Order dated
February 1, 2017.18
On March 24, 2017, the Ombudsman filed four (4)
Informations before the Sandiganbayan against
petitioner Labay and his co-accused.19
It was only on March 28, 2017, four days after the
Informations had already been filed with the
Sandiganbayan, that petitioner Labay was
furnished a copy of the Complaint-Affidavit and its
supporting evidence.20
On April 4, 2017, petitioner Labay received copies
of the Informations filed by the Ombudsman with
the Sandiganbayan. Immediately thereafter, on
April 5, 2017, petitioner Labay filed an Extremely
Urgent Motion of even date, arguing that he is
entitled to a reinvestigation of the case to prevent
injustice against him brought about by the
wrongful filing of charges without affording him his
right to a complete preliminary investigation. 21
Ruling of the Sandiganbayan
In the assailed Resolution dated July 10, 2017, the
Sandiganbayan denied petitioner's motion, the
dispositive portion of which reads:
WHEREFORE, the Court -
�
(1) DECLARES the existence of probable
cause in these cases. Accordingly, let
warrants of arrest be issued against all
the accused except for accused Marc
Douglas Chan Cagas IV who had already
posted bail;
(2) NOTES the Urgent Motion for Judicial
Determination of Probable Cause With
Entry of Appearance dated April 4, 2017,
filed by accused Marc Douglas Chan
Cagas IV; and the Motion To Set Aside No
Bail Recommendation in Crim Case No.
SB-17-CRM-0644 for Malversation
Through Falsification and To Fix the
Amount of Bail in Crim Case No. SB-17-
CRM-0644 for Malversation Through
Falsification filed by accused Johanne
Edward B. Labay; and
(3) DENIES the Motion For Reinvestigation
and To Defer the Issuance of Warrants of
Arrest filed by accused Johanne Edward
B. Labay for lack of merit.
SO ORDERED.22
Aggrieved, petitioner filed a Motion for Partial
Reconsideration23 dated August 3, 2017. However,
this was denied for lack of merit and for being pro
forma in the second assailed Resolution dated
October 19, 2017.24
Hence, this Petition for Certiorari.
The Petition
In the present petition, petitioner prays for the (1)
issuance of a temporary restraining order and/or
writ of injunction; (2) nullification and setting aside
of the assailed Resolutions; (3) remand of the case
to the Office of the Ombudsman for a
reinvestigation of petitioner; and (4) suspension of
the criminal proceedings with respect to petitioner
Labay, pending the resolution of the
reinvestigation before the Office of the
Ombudsman.
Petitioner argues that the Sandiganbayan
committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it denied him the
constitutional right to due process by denying his
prayer for a reinvestigation. Essentially, petitioner
argues that he was not accorded a reasonable
opportunity to be heard since he could not have
effectively and intelligently moved for the
reconsideration of the Ombudsman's May 10,
2016 Resolution due to the latter's failure to
furnish him with a copy of the complaint affidavit
and its attachments upon which the resolution was
based.
In a Resolution25 dated March 21, 2018, this Court
required respondent to file its Comment on the
Petition and at the same time issued a temporary
restraining order enjoining respondent
Sandiganbayan to suspend the criminal
proceedings against petitioner Labay.
On April 2, 2018, the People of the Philippines
represented by the Office of the Ombudsman,
through its counsel, the Office of the Special
Prosecutor (OSP), filed an Entry of Appearance with
Comment and Motion to Dissolve the Temporary
Restraining Order Issued on 21 March 2018.26 It
claimed that the Sandiganbayan did not act with
grave abuse of discretion in denying petitioner
Labay's Motion for Partial Reconsideration. It
argued that there was no violation of his
constitutional right to due process
considering that he was given the opportunity to
present countervailing evidence through the
Ombudsman's effort to issue subpoenas at his last
known addresses, especially since the government
substantially complied with the requirements of
the law in doing so.27
Aside from the effort exerted in issuing subpoenas,
the OSP contended that petitioner Labay was
eventually informed of the nature of the
accusations against him when he was furnished a
copy of the Ombudsman's May 10, 2016
Resolution, in response to which he was able to file
an omnibus motion. It further maintains that
petitioner Labay had the opportunity to refute the
charges against him and present any countervailing
evidence he may have, but faults him for hiding on
technicalities and insisting that he was denied due
process without presenting any evidence to
support his claim of having a valid and meritorious
defense. In other words, the OSP asserted that
petitioner Labay was afforded due process when
he filed two motions seeking reinvestigation and
reconsideration of the Ombudsman's rulings. 28
From the arguments presented by the parties, the
Court is now faced with the issue of whether the
Sandiganbayan committed grave abuse of
discretion amounting to lack or excess of
jurisdiction in denying petitioner Labay's motion
for reinvestigation and ruling that he was not
deprived of due process.
The Court's Ruling
The petition is meritorious.
After a judicious review of the records of the case,
the Court finds that petitioner's constitutional right
to due process was violated when he was not
furnished a copy of the complaint affidavit and its
attachments during the preliminary investigation.
Section 1, Article III of the 1987 Constitution
guarantees the right of every person to due
process before they are deprived of their life,
liberty, or property. Due process in criminal
prosecutions is further emphasized under Section
14, Article III which provides that no person shall be
held to answer for a criminal offense without due
process of law. The same provision also states that
the accused shall be presumed innocent until the
contrary is proved and shall enjoy the right to be
informed of the nature and cause of the accusation
against him.
Criminal due process requires that the procedure
established by law or the rules be followed to
assure that the State makes no mistake in taking
the life or liberty except that of the guilty. All the
necessary measures must be taken to guarantee
procedural due process throughout all stages of a
criminal prosecution-from the inception of
custodial investigation until rendition of
judgment.29
A preliminary investigation is defined as an inquiry
or proceeding for the purpose of determining
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and that the respondent is probably
guilty thereof, and should be held for trial. 30
The right to have a preliminary investigation
conducted before being bound over to trial for a
criminal offense and be formally at risk of
incarceration or some other penalty is not a mere
formal or technical right. It is a substantive right
since the accused in a criminal trial is inevitably
exposed to prolonged anxiety, aggravation,
humiliation, not to speak of expense, and the right
to an opportunity to avoid a painful process is a
valuable right.31 It is meant to secure the innocent
against hasty, malicious and oppressive
prosecution and to protect him from an open and
public accusation of a crime, from the trouble,
expenses and anxiety of a public trial. It is also
intended to protect the state from having to
conduct useless and expensive trials. Indeed, to
deny a person's claim to a preliminary investigation
would be to deprive him the full measure of his
right to due process.32
Administrative Order (A.O.) No. 07 otherwise
known as the Rules of Procedure of the Office of
the Ombudsman (Ombudsman Rules of Procedure)
lays down the procedure to be followed in handling
preliminary investigations of criminal complaints
brought before the Ombudsman for offenses in
violation of R.A. 3019, as amended, R.A. 1379 as
amended, R.A. 6713, Title VII, Chapter II, Section 2
of the Revised Penal Code, and for such other
offenses committed by public officers and
employees in relation to their office. 33 It provides:
Section 3. Preliminary investigation; who may
conduct. Preliminary Investigation may be
conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to
conduct preliminary investigations or
5) Lawyers in the government service, so
designated by the Ombudsman.
Section 4. Procedure - The preliminary
investigation of cases falling under the jurisdiction
of the Sandiganbayan and Regional Trial Courts
shall be conducted in the manner prescribed in
Section 3, Rule 112 of the Rules of Court, subject to
the following provisions:
a) If the complaint is not under oath or is based
only on official reports, the investigating officer
shall require the complainant or supporting
witnesses to execute affidavits to substantiate the
complaints.
b) After such affidavits have been secured, the
investigating officer shall issue an order, attaching
thereto a copy of the affidavits and other
supporting documents, directing the respondents
to submit, within ten (10) days from receipt
thereof, his counter-affidavits and controverting
evidence with proof of service thereof on the
complainant. The complainant may file reply
affidavits within ten (10) days after service of the
counter-affidavits.
c) If the respondent does not file a counter-
affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the
complaint. In any event, the respondent shall have
access to the evidence on record.
d) No motion to dismiss shall be allowed except for
lack of jurisdiction. Neither may a motion for a bill
of particulars be entertained. If respondents desire
any matter in the complainant's affidavit to be
clarified, the particularization thereof may be done
at the time of clarificatory questioning in the
manner provided in paragraph (f) of this section.
e) If the respondents cannot be served with the
order mentioned in paragraph 6 hereof, or having
been served, does not comply therewith, the
complaint shall be deemed submitted for
resolution on the basis of the evidence on the
record.
f) If, after the filing of the requisite affidavits and
their supporting evidences, there are facts material
to the case which the investigating officer may
need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall
be afforded the opportunity to be present but
without the right to examine or cross-examine the
witness being questioned. Where the appearance
of the parties or witnesses is impracticable, the
clarificatory questioning may be conducted in
writing, whereby the questions desired to be asked
by the investigating officer or a party shall be
reduced into writing and served on the witness
concerned who shall be required to answer the
same in writing and under oath.
g) Upon the termination of the preliminary
investigation, the investigating officer shall forward
the records of the case together with his resolution
to the designated authorities for their appropriate
action thereon.

No information may be filed and no complaint may
be dismissed without the written authority or
approval of the Ombudsman in cases falling within
the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.
Section 3, Rule 112 of the Revised Rules of Criminal
Procedure also provides similar guidelines in the
conduct of preliminary investigation, to wit:
Section 3. Procedure. - The preliminary
investigation shall be conducted in the following
manner:
(a) The complaint shall state the address of the
respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as
well as other supporting documents to establish
probable cause. They shall be in such number of
copies as there are respondents, plus two (2)
copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or
government official authorized to administer oath,
or, in their absence or unavailability, before a
notary public, each of who must certify that he
personally examined the affiants and that he is
satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the
complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint
and its supporting affidavits and documents.
The respondent shall have the right to examine the
evidence submitted by the complainant which he
may not have been furnished and to copy them at
his expense. If the evidence is voluminous, the
complainant may be required to specify those
which he intends to present against the
respondent, and these shall be made available for
examination or copying by the respondent at his
expense.
Objects as evidence need not be furnished a party
but shall be made available for examination,
copying, or photographing at the expense of there
questing party.
(c) Within ten (10) days from receipt of the
subpoena with the complaint and supporting
affidavits and documents, the respondent shall
submit his counter-affidavit and that of his
witnesses and other supporting documents relied
upon for his defense. The counter-affidavits shall
be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with
copies thereof furnished by him to the
complainant. The respondent shall not be allowed
to file a motion to dismiss in lieu of a counter-
affidavit.
(d) If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits
within the ten (10) day period, the investigating
officer shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if
there are facts and issues to be clarified from a
party or a witness. The parties can be present at
the hearing but without th. right to examine or
cross-examine. They may, however, submit to the
investigating officer questions which may be asked
to the party or witness concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other
documents or from the expiration of the period for
their submission. It shall be terminated within five
(5) days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or
not there is sufficient ground to hold the
respondent for trial. (3a)
It is clear from the foregoing that an accused in a
criminal case has the right to be informed of the
charges against him,34 to submit a counter�
affidavit, and to have access to and examine all
other evidence submitted by the complainant. 35
In the case before Us, a complaint was filed by the
FIO I of the Office of the Ombudsman against
petitioner Labay for representing the
Farmerbusjness Development Corporation (FDC) in
the alleged anomalous utilization of the PDAF of
Rep. Cagas IV.36 The Ombudsman directed those
charged to file their respective counter-
affidavits,37 but copies of this Order could not be
served on petitioner Labay.38 It appears that the
Ombudsman attempted to serve copies of the
September 1, 2015 Joint Order on petitioner Labay
at his office at the National Anti-Poverty
Commission (NAPC) and at his last known
residence. However, the copies were returned
unserved because he was no longer employed in
that office and he was unknown at the given
residential address. As such, the Ombudsman
proceeded with the preliminary investigation
without any counter-affidavit or participation from
petitioner Labay.39
Thereafter, the Ombudsman found probable cause
to indict petitioner and his co-respondents for
conspiracy in the commission of two counts of
Violation of Section 3(e) of RA 3019, one count of
Malversation of Public Funds, and one count of
Malversation thru Falsification.
Upon learning from press releases of the
Ombudsman about the criminal charges against
him,40 petitioner Labay, through his daughter, Atty.
Labay, attempted to secure information on the
cases from the Central Records of the
Ombudsman. Upon being advised to submit a
written request, Atty. Labay sent the Ombudsman
a letter dated October 4, 2016 in compliance with
the said directive.41 In response to Atty. Labay's
letter request, the Ombudsman replied to Atty.
Labay's request through a letter dated October 10,
2016 and served on her copies of its May 10, 2016
Resolution. In the letter, the Ombudsman directed
Atty. Labay to file a motion for reconsideration of
the said Resolution within five days from receipt
thereof.42
Petitioner filed an Omnibus Motion for
Reinvestigation and Deferment of Filing of
Information with Request for Copies of Complaint-
Affidavit and Supporting Documents dated
November 16, 2016,43 praying, among others, that
a reinvestigation be conducted on his behalf,
asserting that he was not afforded an opportunity
to present his defense and to participate during the
preliminary investigation since he had neither been
notified that a complaint had been filed against him
nor was furnished a copy of the same. Petitioner
also prayed that he be furnished copies of the
complaint-affidavit and other supporting
documents and that he be given time to gather his
evidence and submit his answer to the
complaint.44 However, the Ombudsman denied
petitioner Labay's Omnibus Motion, ruling that his
right to due process had not been violated since he
had the opportunity to be heard when he filed the
Omnibus Motion.45
Aggrieved, petitioner Labay filed another Omnibus
Motion essentially reiterating his arguments in his
first omnibus motion, but additionally argued that
the filing of the first omnibus motion did not cure
the defects in the Ombudsman's failure to observe
due process when it failed to serve on him copies
of the complaint affidavit.46 The Ombudsman
treated this second Omnibus Motion as a second
motion for reconsideration and denied the same
for lack of merit in its Order dated February 1,
2017.47
Thereafter, on March 24, 2017, the Ombudsman
filed four (4) Informations before the
Sandiganbayan against petitioner Labay and his
co�-accused.48 It was only on March 28, 2017
that petitioner Labay was furnished a copy of the
Complaint-Affidavit and its supporting evidence.49
Upon receiving copies of the Informations filed by
the Ombudsman, petitioner Labay immediately
filed an Extremely Urgent Motion with the
Sandiganbayan arguing that he is entitled to a
reinvestigation of the case to prevent injustice
against him brought about by the wrongful filing of
charges without affording him his right to a
complete preliminary investigation.50
The Sandiganbayan, however, sustained the
Ombudsman's position in the assailed Resolution
dated July 10, 2017, ruling that petitioner's right to
due process was not violated since he was afforded
reasonable opportunity to address the charges
against him when he filed two motions with the
Ombudsman. The Sandiganbayan ruled, thus:
The Court finds accused Labay's motion for
reinvestigation bereft of merit.
The essence of due process is that a party is
afforded a reasonable opportunity to be heard in
support of his case. What the law abhors and
prohibits is the absolute absence of the
opportunity to be heard. When the party seeking
due process was in fact given several opportunities
to be heard and to air his side, but it was by his own
fault or choice that he squandered these chances,
then his cry for due process must fail.
�Admittedly, there is no showing that accused
Labay was served a copy of the order requiring him
to file his counter-affidavit. The record shows,
however, that on October 4, 2016, accused Labay
wrote the Office of the Ombudsman requesting
information on case numbers and titles of the
cases it referred to in its press release where his
name appears. In reply to the said letter, the Office
of the Ombudsman confirmed that accused Labay
is a respondent in two (2) cases and furnished him
copies of the Resolutions dated May 10, 2016 and
June 3, 2016. It also reminded accused Labay that
he has five (5) days from notice within which to file
a motion for reconsideration.
Thus, on November 16, 2016, accused Labay filed a
Motion for Reinvestigation and Deferment of Filing
of Information with Request for Copies of
Complaint-Affidavits and Supporting Documents
assailing the Office of the Ombudsman's
Resolution dated May 10, 2016, finding probably
cause to indict him. The said motion was denied by
the Office of the Ombudsman in its Order dated
November 25, 2016 upon the following
ratiocination:
x x x x
Thereafter, accused Labay filed an Omnibus
Motion for Reconsideration and Deferment of
Filing of Information assailing the above order. In
denying the said motion, the Office of the
Ombudsman pointed out that while accused Labay
asserted that he did not commit the crimes
imputed to him and that he did not participate in
any conspiracy in the commission of the crimes, he
prayed that the Office of the Ombudsman conduct
a reinvestigation, furnish him a copy of the
complaint, allow him to gather evidence and
submit counter-affidavit. Further, the Office of the
Ombudsman held that when accused Labay filed
his second motion, he already exhausted his
remedy under Section 7(a), Rule II of the Rules of
Procedure of the Office of the Ombudsman which
allows the filing of only one (1) motion for
reconsideration or reinvestigation.
The above circumstances unerringly show that
accused Labay was accorded due process by filing
two (2) motions before the Office of the
Ombudsman.
We disagree.
There is no dispute that the Ombudsman was
unable to serve copies of the complaint or of its
September 1, 2015 Joint Order on petitioner Labay
prior to or even during the preliminary
investigation of the case. This was never denied by
the OSP in its Comment, stating thus:
20. By Joint Order dated 01 September 2015, the
Office of the Ombudsman directed therein
respondents (including Labay) to file their
respective counter-affidavits.
21. Despite earnest efforts, copies of the Joint
Order could not be served in the last known or
given addresses of Cunanan, Semillano, Carrasco,
Reyes, and herein petitioner Labay, after they have
been noted to be unknown in said addresses, or
had moved out and left no forwarding
address.51 (emphasis in the original)
As pointed out by petitioner, the Ombudsman only
tried to effect service of the order to file his
counter affidavit on petitioner on one instance,
albeit to two different addresses. However, this
service failed since petitioner was no longer
employed at his former office at NAPC, as
confirmed by the letter sent by the NAPC Secretary
and Lead Convenor, and since he was no longer
residing at the residential address where the order
was sent.
In its Comment, the OSP seeks refuge in paragraph
(e), Section 4 of the Ombudsman Rules of
Procedure which provides that in cases where the
respondents cannot be served with the order to file
their counter-affidavit, or having been served but
does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of
the evidence on the record.
While the Ombudsman was correct in resolving the
complaint based on the evidence presented in
accordance with Paragraph (e), Section 4 of the
Ombudsman Rules of Procedure, the situation,
however, effectively changed when petitioner
made himself available to the Ombudsman when
he requested access to the case records. The
Ombudsman had a clear opportunity to furnish
petitioner with copies of the complaint affidavit
and its supporting documents. Instead, it merely
decided to furnish petitioner with a copy of its May
10, 2016 Resolution.
Even assuming that the Ombudsman was merely
complying with Atty. Labay's request for
information when it responded with the case titles
and docket numbers of the cases pending against
petitioner Labay, it should have exercised its duty
to inform petitioner of the charges filed against
him by furnishing him copies of the complaint
affidavit and its supporting documents. Or at the
very least, it should have directed and allowed
petitioner to access these records at its office. This,
however, was not done by the Ombudsman.
We also cannot subscribe to the Sandiganbayan's
justification that petitioner was afforded
reasonable opportunity to address the charges
against him since he was able to file a motion for
reinvestigation with the Ombudsman. By the mere
fact that petitioner was not yet even furnished a
copy of the complaint affidavit at the time he
received the Ombudsman's May 10, 2016
Resolution, it is clear that he could not effectively
and sufficiently address the allegations against
him. Petitioner Labay should not be blamed for
being unable to raise any substantive defense in
either the omnibus motions he filed with the
Ombudsman since he had not even seen any of the
allegations filed against by the FIO. More
importantly, he could not have been expected to
seek appropriate evidence to support his defense
when he was not even given any access to the
documents submitted by the FIO in support of its
complaint.
In fact, the violation of petitioner's constitutional
right to due process is made even more evident
when the Ombudsman unceremoniously denied
his request to be furnished copies of the complaint
affidavit and its supporting documents in the first
omnibus motion that he filed, and reiterated in his
second omnibus motion. In both orders denying
the two omnibus motions, the Ombudsman
seemingly ignored petitioner's requests and
effectively denied petitioner of his right to secure
copies of the complaint affidavit. This should not be
tolerated.
Unfortunately, the Sandiganbayan committed
grave abuse of discretion when it failed to grant
petitioner Labay's Extremely Urgent Omnibus
Motion despite the glaring violations committed by
the Ombudsman. The Sandiganbayan should have
recognized these patent violations and ordered the
remand of the case to the Ombudsman for the
conduct of a proper preliminary investigation with
respect to petitioner Labay's participation in the
crimes charged. Instead, it chose to turn a blind eye
towards the injustice committed against
petitioner.
Time and again, the Court has held that
suppression of evidence, regardless of its nature, is
enough to violate the due process rights of the
accused.52 In the present case, it was not only the
prosecution's evidence which was withheld from
petitioner. In denying petitioner Labay's multiple
requests for copies of the complaint affidavit, the
Ombudsman deprived him of his right to
sufficiently and reasonably know the charges and
accusations against him. This is a patent violation
of his constitutional right to due process.
In Duterte v. Sandiganbayan,53 this Court ordered
the dismissal of the criminal case against the
accused when they were not sufficiently apprised
of the charges against them during preliminary
investigation, thus:
We have judiciously studied the case records and
we find that the preliminary investigation of the
charges against petitioners has been conducted
not in the manner laid down in Administrative
Order No. 07.
In the 12 November 1991 Order of Graft
Investigator Manriquez, petitioners were merely
directed to submit a point-by-point comment
under oath on the allegations in Civil Case No.
20,550-91 and SAR No. 91-05. The said order was
not accompanied by a single affidavit of any person
charging petitioners of any offense as required by
law. They were just required to comment upon the
allegations in Civil Case No. 20,550-91 of the
Regional Trial Court of Davao City which had earlier
been dismissed and on the COA Special Audit
Report. Petitioners had no inkling that they were
being subjected to a preliminary investigation as in
fact there was no indication in the order that a
preliminary investigation was being conducted. If
Graft Investigator Manriquez had intended merely
to adopt the allegations of the plaintiffs in the civil
case or the Special Audit Report (whose
recommendation for the cancellation of the
contract in question had been complied with) as his
basis for criminal prosecution, then the procedure
was plainly anomalous and highly irregular. As a
consequence, petitioners constitutional right to
due process was violated. (citations omitted)
While the Duterte case is not on all fours with the
case before Us, We find that the Ombudsman's
failure to furnish petitioner Labay with copies of
the complaint affidavit and its supporting
documents despite the latter's numerous attempts
and requests to secure the same is more severe as
it gravely endangers petitioner's right to liberty
through no fault of his own. Undeniably, petitioner
Labay's receipt of the May 10, 2016 Resolution is
not equivalent to receipt of the complaint affidavit
and its supporting documents.
The OSP's assertion in its comment that petitioner
deliberately evaded the Ombudsman's attempts to
serve its orders on him is purely hypothetical and is
not supported by any concrete proof. There is also
no merit in the OSP's position that it was
incumbent on petitioner Labay to justify his
whereabouts during the time that the Ombudsman
was attempting service of the subpoena on him
since no law or regulation requires an accused in a
preliminary investigation to submit himself to the
Ombudsman or at the very least update the latter
of his latest address. The burden should not be
placed on the accused since it is the State which
has the responsibility to use its resources for the
proper implementation of the law. To rule
otherwise would effectively curtail the
constitutionally protected rights of the people to
be secure with their life, liberty and property.
WHEREFORE, the petition is GRANTED. The
Resolutions dated July 10, 2017 and October 19,
2017 issued by the Sandiganbayan, Third Division
in Criminal Case Nos. SB-17-CRM-0642 to 0643 and
Criminal Case Nos. SB-17-CRM-0644 to 0645 are
hereby ANNULLED and SET ASIDE. The Office of
the Special Prosecutor is ORDERED to file motions
to withdraw Information in the aforedescribed
criminal cases.
SO ORDERED.
G.R. No. 218354, September 15, 2021
SHEILA MARIE G. UY-BELLEZA, Petitioner, v. THE
CIVIL REGISTRAR OF TACLOBAN CITY, Respondent.
DECISION
HERNANDO, J.:
This Petition for Review on Certiorari1 assails the
March 20, 2015 Decision2 of the Court of Appeals
(CA) in CA G.R. CV No. 04404, which granted the
appeal of the Office of the Solicitor General (OSG).
Factual Antecedents:
On July 4, 2008, Sheila Marie G. Uy-Bel!eza
(petitioner) filed a Petition for Correction of Entry
in the Civil Registry3 before the Regional Trial Court
(RTC) of Tacloban City, Branch 34 docketed as SR
Proc. No. 2008-07-40. The petition sought the
correction of the entry in her birth certificate
stating that the nationality of her mother Adelaida
Go Uy (Adelaida) is "Chinese" instead of "Filipino".
After finding the petition sufficient in form and
substance, the RTC gave due course to the petition
and ordered its publication in a newspaper of
general circulation for three consecutive weeks
and to furnish the OSG a copy of the petition. 4
The OSG deputized Prosecutor Danilo L. Yee to
appear for the State as its representative. 5
After compliance with the required
6
publication and entry of appearance of counsel
for both parties, the RTC ordered Atty. Roselyn
Fallorina, Officer-in-Charge Clerk of Court of RTC-
Br. 34, to receive the evidence of petitioner and
submit her report after the termination of the
proceeding.7
In support of the petition, petitioner submitted the
following:
1. Petitioner's Certificate of Live Birth issued by the
National Statistics Office (NSO);8
2. Petitioner's Certificate of Birth issued by the
Local Civil Registrar;9
3. Marriage Contract of the petitioner's parents
issued by the NSO showing that Adelaida Go is a
Filipino citizen;10
4. Adelaida's Certificate of Registration as a Voter
issued by the Commission on Elections;11
5. Certificate of Live Birth of Jerome Uy, petitioner's
brother, reflecting the citizenship of their mother
Adelaida as "Fil":12 and
6. Adelaida's Expired Philippine Passport. 13
Aside from her documentary evidence, petitioner
also took the stand to attest to the Filipino
citizenship of her mother, Adelaida.14 The latter
herself testified that she is an illegitimate daughter
of Lino Go, a Chinese national and Teodora Guinto,
a Filipino citizen and that her failure to present her
birth certificate was because she was born in 1942
during World War II and thus could not have
registered her birth.15
Ruling of the Regional Trial
Court:
On January 4, 2009, the Commissioner's
Report16 was submitted in court. On March 18,
2011, the trial court issued a Resolution17 granting
the petition, the dispositi ve part of which
states:chanroblesvirtualawlibrary
WHEREFORE, premises considered, the Petition is
hereby GRANTED.
The Civil Registry of Tacloban City and the Civil
Registrar General, National Statistics Office are
hereby ordered to correct the error in the
Certificate of Live Birth of Sheila Marie G. Uy-
Belleza changing the entry thereof in the column
under the Nationality of her mother Adelaida Go
from "CHINESE" to '"FILIPINO" and the supplied
name "SHEILA MARIE" of the petitioner at the Local
Civil Registry of Tacloban City be affirmed as her
correct first name directing likewise the NSO to
enter said name in her Certificate of Live Birth.
SO ORDERED.18
Dissatisfied, the OSG filed a Motion for
Reconsideration19 contending that the totality of
the evidence presented by petitioner did not prove
that her mother is a Filipino citizen so as to warrant
the correction sought. The OSG posited that other
than the bare allegation of Adelaida that she was
the illegitimate daughter of a Chinese father and a
Filipino mother, there was no other evidence
presented to prove this claim.
The trial court denied the OSG's motion for
reconsideration in its March 23, 2012 Order. 20
The trial court gave weight to the Philippine
passport and voter's certification issued to
Adelaida to prove her citizenship. It noted that
passports are not indiscriminately issued by the
Department of Foreign Affairs without proof of
Filipino citizenship. Coupled, with the fact that the
OSG did not present any countervailing evidence,
the trial court ruled that preponderance of
evidence tilts in favor of the petitioner.
Thereafter, the OSG filed before the CA an
appeal21 docketed as CA G.R. CV No. 04404.
Ruling of the Court of Appeals:
The OSG maintained its argument that the totality
of the evidence presented by petitioner did not
prove that her mother Adelaida is a Filipino citizen.
It contended that a Philippine passport is
insufficient to prove Adelaida's citizenship
considering that she did not submit a birth
certificate when she submitted her application but
merely executed, an affidavit. Neither can a voter's
certification prove Filipino citizenship since
exercise by a person of the rights and/or privileges
granted, to Filipino citizens is not conclusive proof
of Filipino citizenship.
The OSG further argued that petitioner failed to
prove that Adelaida is a Filipino citizen since there
was no evidence presented, to show that her
mother's birth was registered in the local civil
registrar or had a late registration. The OSG
likewise questioned the Filipino citizenship of
petitioner's grandmother, Adelaida's mother,
there being no evidence to show that Teodora was
a Filipino and beneficiary of the Philippine Bill of
1902. Lastly, the OSG cited that no evidence was
adduced to show that Adelaida elected Filipino
citizenship through a positive act.
On March 20, 2015, the CA granted the appeal and
reversed the ruling the RTC.22 In granting the
appeal, the CA ratiocinated in this
wise:chanroblesvirtualawlibrary
x x x [T]he Court finds that the evidence of the
appellee has not satisfactorily and conclusively
established that her mother Adelaida is a Filipino
citizen so as to warrant the petition to change the
entry in her birth records.
The established rule that an illegitimate child of a
Fiiipina need not perform any act to confer upon
him/her all the rights and privileges attached to
citizens of the Philippines cannot apply in
Adelaida's favor. Other than the bare claim of
Adelaida that she is an illegitimate child of a
Chinese father and a Filipina mother, no evidence
was presented to corroborate the same. First of all,
the records are in dire need of any evidence to
prove that Adelaida's mother was Filipino.
x x x appeal is GRANTED. The decision of the Regional
x x x Neither has the appellee presented a
certification of loss or destruction of record Issued
by the Office of the Civil Registrar nor any kind of
evidence which could have at least corroborated
the appellee's claim of her mother Adelaida's
Filipino citizenship such as a baptismal certificate
or the testimony of relatives.
In the same vein, the appellee's contention that her
mother Adelaida had elected Philippine citizenship
miserably fails as the alleged election was legally
ineffectual. x x x I. Grave error in the application of Section 1,
x x x legitimate processes of government agencies
x x x The appellee cannot assert that her mother
Adelaida's exercise of suffrage and the
participation in election exercises constitutes a
positive act of election of Philippine citizenship
since the law specifically lays down the
requirements for acquisition of citizenship by
election. The mere exercise of suffrage and other
similar acts showing exercise of Philippine
citizenship cannot take the place of election of
Philippine citizenship. At most, her registration as a
voter indicates her desire to exercise s right
appertaining exclusively to Filipino citizens. The
exercise of the rights and privileges granted only to
Filipinos is not conclusive proof of citizenship,
because a person may misrepresent
himself/herself to be a Filipino and thus enjoy the
rights and privileges of citizens of this country.
x x x part of the CA when it ruled that the pieces of
In ruling that the appellee had satisfactorily proven
her mother Adelaida's citizenship as a Filipino, the
trial court gave much weight on the fact that she
was issued a Philippine passport. A careful scrutiny
of the records of this case however reveals that
Adelaida herself testified that she merely executed
an affidavit for the purpose of securing a passport.
The propriety and legality of the issuance of the
Philippine passport to Adelaida on the basis of a
mere affidavit is beyond the cognizance of this
Court in this case. x x x
x x x
WHEREFORE, premises considered, the instant
Trial Court, Branch 34, Tacloban City dated March
18, 2011 granting the petition for the change of the
entry in the column under the Nationality of her
mother Adelaida Go from "CHINESE" to "FILIPINO"
in the birth records of Sheila Marie G. Uy-Belleza is
ANNULLED AND SET ASIDE.
Hence, the instant Petition.
Issues:
Petitioner asserts that the CA committed:
Commonwealth Act No. 625 by totally distrusting
declaring that the petitioner's mother is a non-
filipino when this case is merely for a. plain
correction of entry of a pure error in the certificate
of live birth;
II. Grave error in requiring, in effect, the quantum
of proof beyond reasonable doubt on this civil case
that petitioner's mother is a Filipino where
petitioner already established preponderance of
evidence in this civil case which evidences were not
rebutted by a single piece of whatever evidence by
the Republic; and
III. Grave error in discrediting the value of sworn
statement/affidavit in securing the Philippine
passport and the voter's registration of petitioner's
mother.23
In essence, petitioner attributes grave error oil the
evidence presented were insufficient to support
the correction of Adelaide's citizenship from
"Chinese" to "Filipino".
Our Ruling

The petition is with merit.
Records reveal that petitioner was able to
sufficiently establish her petition for correction of
entry as to her mother Adelaide's citizenship.
First, Adelaida was issued a Philippine passport, the
genuineness and authenticity of which was not
disputed at all by the OSG.
A passport is "a document Issued by the Philippine
government to its citizens requesting other
governments to allow its citizens to pass safely and
freely, and in case of need, to give him/her all
lawful aid and protection."24 It is an official
document of identity of Philippine citizenship of
the holder issued for travel purposes.25 A passport
proves that the country which issued it recognizes
the person named therein as its national. 26 In fact,
the very first page27 of a Philippine passport
explicitly recognizes the bearer as its citizen. It
states:chanroblesvirtualawlibrary
The Government of the Republic of the Philippines
requests all concerned to permit the bearer, a
citizen of the Philippines, to pass safely and freely
and, in case of need, to give him/her all lawful aid
and protection. (Emphasis supplied.)
The government's issuance of a Philippine passport
to Adelaida in effect, is a recognition of her Filipino
citizenship.
The fact that Adelaida merely executed an affidavit
when she applied for a passport, instead of
submitting a birth certificate, will not overturn the
presumption of regularity in its issuance. To
successfully overcome such presumption of
regularity, case law demands that the evidence
against it must be clear and convincing. Absent the
requisite quantum of proof to the contrary, the
presumption stands deserving of faith and credit. 28
In this case, the OSG did not present any evidence
to overcome the presumption. The reliance on the
requirement of submission of a birth certificate or
a baptismal certificate in applying for a Philippine
passport as set forth in Section 529 of Republic Act
No. (RA) 8239 ("Philippine Passport Act of 1996") is
misplaced. Adelaida's passport was issued in 1988,
long before RA 8239 was enacted.
Second, the certificate of live birth of petitioner's
brother,30 whose genuineness and authenticity
was also not disputed by the OSG, stated the
citizenship of Adelaida as "Fil". Hence, to disallow
the correction in petitioner's birth record of her
mother's citizenship would perpetuate an
inconsistency in the natal circumstances of the
siblings who are unquestionably natural children of
the same mother and father. 31
Lastly, the testimony of Adelaida regarding her
illegitimacy and the citizenship of her mother,
Teodora Guinto, was never questioned by the
prosecutor. The pertinent portions of Adelaida's
cross-examination are hereunder
quoted:chanroblesvirtualawlibrary
Pros. Danilo L. Lee on Cross Examination:
Q. Mrs. Uy, did I hear you correctly when
you said that your father was a Chinese
Citizen and your mother was a Filipino?
A. Yes, sir.
Q. Did I hear you also correctly when you
said that they were never married?
A. Yes, sir.
Q. Did they subsequently marry? Do you
know if they got married?
A. No, sir, until he died.32
Verily, records reveal that the prosecution did not
file any opposition to the petition.33 In addition, the
prosecutor did not file any comment or opposition
when petitioner filed her formal offer of evidence.
Also, the sufficiency of the evidence submitted
before the trial court relating to Adelaida's
citizenship was never questioned. In fact, the
prosecutor did not present any countervailing
evidence to defeat the petition for correction of
entry.
Given the foregoing, the correction of entry in the
Certificate of Live Birth of petitioner involving the
change of the citizenship of her mother Adelaida
from "Chinese" to "Filipino" is in order.
Contrary to the findings of the appellate court and
the contention of the OSG, petitioner need not LOUIS "BAROK" C. BIRAOGO, Petitioner,
prove that her mother complied with the vs.
constitutional and statutory requirements to NATIONAL BUREAU OF INVESTIGATION and
become a Filipino citizen. PHILIPPINE NATIONAL POLICE, Respondents.

The requirement of electing Filipino citizenship x-----------------------x

when a child reached the age of majority under
Article IV, Section 1 of the 1935 Constitution, 34 the G.R. No. 203306
governing law when Adelaida was born on
November 24, 1942, and Section 1 of ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
Commonwealth Act No. 625,35 applied only to MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,
legitimate children.36 These would not apply in the BERTENI "TOTO" CAUSING, HERNANI Q. CUARE,
case of Adelaida who is an illegitimate child, PERCY LAPID, TRACY CABRERA, RONALDO E.
considering that her Chinese father and Filipino RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET
mother were never married. As such, she was not AL., Petitioners,
required to comply with said constitutional and vs.
statutory requirements to become a Filipino OFFICE OF THE PRESIDENT, represented by
citizen. By being an illegitimate child of a Filipino President Benigno Simeon Aquino III, SENATE OF
mother, Adelaida automatically became a Filipino THE PHILIPPINES, and HOUSE OF
upon birth. Stated differently, she is a Filipino since REPRESENTATIVES, Respondents.
birth without having to elect Filipino citizenship
when she reached the age of majority. 37 x-----------------------x

WHEREFORE, premises considered, the instant G.R. No. 203359

petition is hereby GRANTED. The March 20, 2015
Decision of the Court of Appeals in CA G.R. CV No. SENATOR TEOFISTO DL GUINGONA III, Petitioner,
04404 is SET ASIDE. The March 18, 2011 Resolution vs.
and March 23, 2012 Order of the Regional Trial EXECUTIVE SECRETARY, THE SECRETARY OF
Court of Tacloban City, Branch 34, JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
are REINSTATED.chanroblesvirtualawlibrary INTERIOR AND LOCAL GOVERNMENT, THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE, and
SO ORDERED. DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

G.R. No. 203335 February 11, 2014 x-----------------------x

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, G.R. No. 203378

LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners, ALEXANDER ADONIS, ELLEN TORDESILLAS, MA.
vs. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,
THE SECRETARY OF JUSTICE, THE SECRETARY OF JR., ROMEL R. BAGARES, and GILBERT T.
THE DEPARTMENT OF THE INTERIOR AND LOCAL ANDRES, Petitioners,
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE vs.
INFORMATION AND COMMUNICATIONS THE EXECUTIVE SECRETARY, THE DEPARTMENT OF
TECHNOLOGY OFFICE, THE CHIEF OF THE BUDGET AND MANAGEMENT, THE DEPARTMENT
PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF JUSTICE, THE DEPARTMENT OF THE INTERIOR
OF THE NATIONAL BUREAU OF AND LOCAL GOVERNMENT, THE NATIONAL
INVESTIGATION, Respondents. BUREAU OF INVESTIGATION, THE PHILIPPINE
NATIONAL POLICE, AND THE INFORMATION AND
x-----------------------x COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND
G.R. No. 203299 TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO
TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS
OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her
capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of
Concerned Artists of the Philippines, ELMER C.
LABOG, Chairperson of Kilusang Mayo Uno,
CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of
Anakpawis Party-List, LANA R. LINABAN, Secretary
General Gabriela Women's Party, ADOLFO ARES P.
GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the
Republic of the Philippines, PAQUITO N. OCHOA,
JR., Executive Secretary, SENATE OF THE
PHILIPPINES, represented by SENATE PRESIDENT
JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA,
Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of
the Information and Communications Technology
Office, NONNATUS CAESAR R. ROJAS, Director of
the National Bureau of Investigation, D/GEN.
NICANOR A. BARTOLOME, Chief of the Philippine
National Police, MANUEL A. ROXAS II, Secretary of
the Department of the Interior and Local
Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M.
CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO
J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as
Executive Secretary, HONORABLE LEILA DE LIMA in
her capacity as Secretary of Justice, HONORABLE
MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The
CHIEF of the Philippine National Police, The
DIRECTOR of the National Bureau of Investigation
(all of the Executive Department of
Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE
(PPI), CENTER FOR MEDIA FREEDOM AND
RESPONSIBILITY, ROWENA CARRANZA PARAAN,
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN
ALBURO, ARIEL SEBELLINO AND THE PETITIONERS
IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET
AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL
PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON.
SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V.
ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS;
MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS
SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and
PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his
capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the
House of Representatives; HON. PAQUITO N.
OCHOA, JR., in his capacity as Executive Secretary;
HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director,
Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his
capacity as Director, National Bureau of
Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine
National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his
official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his
official capacity as Executive Secretary; HON. LEILA
M. DE LIMA, in her official capacity as Secretary of
Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information
and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of
Investigation; and DIRECTOR GENERAL NICANOR A.
BARTOLOME, in his official capacity as Chief of the
Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO
SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE
PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC
ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE,
composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco,
PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON
ANTHONY ROMASANTA TONSON, TEODORO A.
CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN
G.M. RAGRAGIO, MARIA FATIMA A. VILLENA,
MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA,
ERASTUS NOEL T. DELIZO, CRISTINA SARAH E.
OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS,
KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND
TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE
CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare
several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012,
unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and
use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a
system that links him to other computers and
enable him, among other things, to:
1. Access virtual libraries and encyclopedias
for all kinds of information that he needs
for research, study, amusement,
upliftment, or pure curiosity;
2. Post billboard-like notices or messages,
including pictures and videos, for the
general public or for special audiences like
associates, classmates, or friends and read
postings from them;
3. Advertise and promote goods or services
and make purchases and payments;
4. Inquire and do business with institutional
entities like government agencies, banks,
stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and
schools; and
5. Communicate in writing or by voice with
any person through his e-mail address or
telephone.
This is cyberspace, a system that accommodates
millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current
generation for greater information and facility of
communication. But all is not well with the system
since it could not filter out a number of persons of
ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them
can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the
latter by posting defamatory statements against
him that people can read.
And because linking with the internet opens up a
user to communications from others, the ill-
motivated can use the cyberspace for committing
theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him
through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who
have access to the internet. For this reason, the
government has a legitimate right to regulate the
use of cyberspace and contain and punish
wrongdoings.
Notably, there are also those who would want, like
vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly
useful institutions as well as to the laptop or
computer programs and memories of innocent
individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy
those computer systems, networks, programs, and
memories. The government certainly has the duty
and the right to prevent these tomfooleries from
happening and punish their perpetrators, hence
the Cybercrime Prevention Act.
But petitioners claim that the means adopted by
the cybercrime law for regulating undesirable
cyberspace activities violate certain of their
constitutional rights. The government of course
asserts that the law merely seeks to reasonably put
order into cyberspace activities, punish
wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues
presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent
government agencies from implementing the
cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the
following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties
for their commission as well as provisions that
would enable the government to track down and
penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited
Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and
Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree
Higher;
k. Section 7 on the Prosecution under both
the Revised Penal Code (RPC) and R.A.
10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of
Traffic Data;
n. Section 13 on Preservation of Computer
Data;
o. Section 14 on Disclosure of Computer
Data;
p. Section 15 on Search, Seizure and
Examination of Computer Data;
q. Section 17 on Destruction of Computer
Data;
r. Section 19 on Restricting or Blocking
Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation
and Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and
Functions.
Some petitioners also raise the constitutionality of
related Articles 353, 354, 361, and 362 of the RPC
on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity
and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any
part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to
meet the strict scrutiny standard required of laws
that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny
standard, an American constitutional
1
construct, useful in determining the
constitutionality of laws that tend to target a class
of things or persons. According to this standard, a
legislative classification that impermissibly
interferes with the exercise of fundamental right or
operates to the peculiar class disadvantage of a
suspect class is presumed unconstitutional. The
burden is on the government to prove that the
classification is necessary to achieve a compelling
state interest and that it is the least restrictive
means to protect such interest.2 Later, the strict
scrutiny standard was used to assess the validity of
laws dealing with the regulation of speech, gender,
or race as well as other fundamental rights, as
expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in
Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what
is essentially a condemnable act – accessing the
computer system of another without right. It is a
universally condemned conduct.4
Petitioners of course fear that this section will
jeopardize the work of ethical hackers,
professionals who employ tools and techniques
used by criminal hackers but would neither
damage the target systems nor steal information.
Ethical hackers evaluate the target system’s
security and report back to the owners the
vulnerabilities they found in it and give instructions
for how these can be remedied. Ethical hackers are
the equivalent of independent auditors who come
into an organization to verify its bookkeeping
records.5
Besides, a client’s engagement of an ethical hacker
requires an agreement between them as to the
extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the
"get out of jail free card."6 Since the ethical hacker
does his job with prior permission from the client,
such permission would insulate him from the
coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity
and availability of computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless
alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic
data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from
overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of
protected speech and expression, creating a
chilling and deterrent effect on these guaranteed
freedoms.
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly,
thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach
on these freedoms at all. It simply punishes what
essentially is a form of vandalism, 8 the act of
willfully destroying without right the things that
belong to others, in this case their computer data,
electronic document, or electronic data message.
Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other
people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of
course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that
hangs on the heads of citizens who are minded to
step beyond the boundaries of what is proper. But
to prevent the State from legislating criminal laws
because they instill such kind of fear is to render
the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect
that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to
punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.
Besides, the overbreadth challenge places on
petitioners the heavy burden of proving that under
no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this
burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity
and availability of computer data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain
name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive
others from registering the same, if such a domain
name is:
(i) Similar, identical, or confusingly similar
to an existing trademark registered with
the appropriate government agency at the
time of the domain name registration;
(ii) Identical or in any way similar with the
name of a person other than the registrant,
in case of a personal name; and
(iii) Acquired without right or with
intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-
squatting violates the equal protection clause 12 in
that, not being narrowly tailored, it will cause a
user using his real name to suffer the same fate as
those who use aliases or take the name of another
in satire, parody, or any other literary device. For
example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo,"
the law would punish for cyber-squatting both the
person who registers such name because he claims
it to be his pseudo-name and another who
registers the name because it happens to be his
real name. Petitioners claim that, considering the
substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses
"Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose
for which he uses the name that the law condemns.
The law is reasonable in penalizing him for
acquiring the domain name in bad faith to profit,
mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of
registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of
denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The
intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying
information belonging to another, whether natural
or juridical, without right: Provided: that if no
damage has yet been caused, the penalty
imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the
constitutional rights to due process and to privacy
and correspondence, and transgresses the
freedom of the press.
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against
unreasonable searches and seizures. 13 But the
Court acknowledged its existence as early as 1968
in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification
with liberty; it is in itself fully deserving of
constitutional protection.
Relevant to any discussion of the right to privacy is
the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon"15 the relevance of these zones to
the right to privacy:
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in
accordance with customary legal process. The
meticulous regard we accord to these zones arises
not only from our conviction that the right to
privacy is a "constitutional right" and "the right
most valued by civilized men," but also from our
adherence to the Universal Declaration of Human
Rights which mandates that, "no one shall be
subjected to arbitrary interference with his
privacy" and "everyone has the right to the
protection of the law against such interference or
attacks."
Two constitutional guarantees create these zones
of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the
right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In
assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated
by unreasonable government intrusion. 18
The usual identifying information regarding a
person includes his name, his citizenship, his
residence address, his contact number, his place
and date of birth, the name of his spouse if any, his
occupation, and similar data.19 The law punishes
those who acquire or use such identifying
information without right, implicitly to cause
damage. Petitioners simply fail to show how
government effort to curb computer-related
identity theft violates the right to privacy and
correspondence as well as the right to due process
of law.
Also, the charge of invalidity of this section based
on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific
actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no
fundamental right to acquire another’s personal
data.
Further, petitioners fear that Section 4(b)(3)
violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted
user account of a person in the news to secure
information about him that could be published. But
this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an
illegitimate purpose. Moreover, acquiring and
disseminating information made public by the user
himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal
act which can be established through the overt acts
of the offender, and it may be presumed from the
furtive taking of useful property pertaining to
another, unless special circumstances reveal a
different intent on the part of the perpetrator. 20 As
such, the press, whether in quest of news reporting
or social investigation, has nothing to fear since a
special circumstance is present to negate intent to
gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement,
maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual
organs or sexual activity, with the aid of a computer
system, for favor or consideration.
Petitioners claim that the above violates the
freedom of expression clause of the
Constitution.21 They express fear that private
communications of sexual character between
husband and wife or consenting adults, which are
not regarded as crimes under the penal code,
would now be regarded as crimes when done "for
favor" in cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a special
privilege or right granted or conceded," or "a token
of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term
"favor" embraces socially tolerated trysts. The law
as written would invite law enforcement agencies
into the bedrooms of married couples or
consenting individuals.
But the deliberations of the Bicameral Committee
of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the
issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and
among two private persons x x x although that may
be a form of obscenity to some."23 The
understanding of those who drew up the
cybercrime law is that the element of "engaging in
a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography
for favor and consideration. This includes
interactive prostitution and pornography, i.e., by
webcam.25
The subject of Section 4(c)(1)—lascivious
exhibition of sexual organs or sexual activity—is
not novel. Article 201 of the RPC punishes
"obscene publications and exhibitions and
indecent shows." The Anti-Trafficking in Persons
Act of 2003 penalizes those who "maintain or hire
a person to engage in prostitution or
pornography."26 The law defines prostitution as
any act, transaction, scheme, or design involving
the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent
to which the State can regulate materials that serve
no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court
weighed the property rights of individuals against
the public welfare. Private property, if containing
pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts
privately through internet connection, perceived
by some as a right, has to be balanced with the
mandate of the State to eradicate white slavery
and the exploitation of women.
In any event, consenting adults are protected by
the wealth of jurisprudence delineating the bounds
of obscenity.30 The Court will not declare Section
4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons
engaged in the business of maintaining,
controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as
Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or
prohibited acts defined and punishable by Republic
Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system:
Provided, That the penalty to be imposed shall be
(1) one degree higher than that provided for in
Republic Act No. 9775.
It seems that the above merely expands the scope
of the Anti-Child Pornography Act of 200931 (ACPA)
to cover identical activities in cyberspace. In
theory, nothing prevents the government from
invoking the ACPA when prosecuting persons who
commit child pornography using a computer
system. Actually, ACPA’s definition of child
pornography already embraces the use of
"electronic, mechanical, digital, optical, magnetic
or any other means." Notably, no one has
questioned this ACPA provision.
Of course, the law makes the penalty higher by one
degree when the crime is committed in
cyberspace. But no one can complain since the
intensity or duration of penalty is a legislative
prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled
proliferation of a particular piece of child
pornography when uploaded in the cyberspace is
incalculable.
Petitioners point out that the provision of ACPA
that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution
of persons who aid and abet the core offenses that
ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines
a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who
formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on
Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by
simply commenting on it will be discussed
elsewhere below. For now the Court must hold that
the constitutionality of Section 4(c)(2) is not
successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The
transmission of commercial electronic
communication with the use of computer system
which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from
the recipient; or
(ii) The primary intent of the
communication is for service and/or
administrative announcements from the
sender to its existing users, subscribers or
customers; or
(iii) The following conditions are present:
(aa) The commercial electronic
communication contains a simple,
valid, and reliable way for the
recipient to reject receipt of further
commercial electronic messages
(opt-out) from the same source;
(bb) The commercial electronic
communication does not purposely
disguise the source of the electronic
message; and
(cc) The commercial electronic
communication does not purposely
include misleading information in
any part of the message in order to
induce the recipients to read the
message.
The above penalizes the transmission of unsolicited
commercial communications, also known as
"spam." The term "spam" surfaced in early internet
chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was
said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and Spam"
when reading options from a menu.35
The Government, represented by the Solicitor
General, points out that unsolicited commercial
communications or spams are a nuisance that
wastes the storage and network capacities of
internet service providers, reduces the efficiency of
commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters
the recipient’s domain without prior permission.
The OSG contends that commercial speech enjoys
less protection in law.
But, firstly, the government presents no basis for
holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people,
before the arrival of the age of computers, have
already been receiving such unsolicited ads by
mail. These have never been outlawed as nuisance
since people might have interest in such ads. What
matters is that the recipient has the option of not
opening or reading these mail ads. That is true with
spams. Their recipients always have the option to
delete or not to read them.
To prohibit the transmission of unsolicited ads
would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of
speech which is not accorded the same level of
protection as that given to other constitutionally
guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him
of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited
advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the
penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and
malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one
who is dead.
Art. 354. Requirement for publicity. — Every
defamatory imputation is presumed to be
malicious, even if it be true, if no good intention
and justifiable motive for making it is shown,
except in the following cases:
1. A private communication made by any
person to another in the performance of
any legal, moral or social duty; and
2. A fair and true report, made in good faith,
without any comments or remarks, of any
judicial, legislative or other official
proceedings which are not of confidential
nature, or of any statement, report or
speech delivered in said proceedings, or of
any other act performed by public officers
in the exercise of their functions.
Art. 355. Libel means by writings or similar means.
— A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished
by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos,
or both, in addition to the civil action which may be
brought by the offended party.
The libel provision of the cybercrime law, on the
other hand, merely incorporates to form part of it
the provisions of the RPC on libel. Thus Section
4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel
as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer
system or any other similar means which may be
devised in the future.
Petitioners lament that libel provisions of the penal
code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of
"presumed malice" even when the latest
jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring
"presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed
freedom of expression.
Petitioners would go further. They contend that
the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence
requiring "actual malice" could easily be
overturned as the Court has done in Fermin v.
People39 even where the offended parties
happened to be public figures.
The elements of libel are: (a) the allegation of a
discreditable act or condition concerning another;
(b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact 41 when
the offender makes the defamatory statement
with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The
reckless disregard standard used here requires a
high degree of awareness of probable falsity. There
must be sufficient evidence to permit the
conclusion that the accused in fact entertained
serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not
sufficient to establish actual malice. 43
The prosecution bears the burden of proving the
presence of actual malice in instances where such
element is required to establish guilt. The defense
of absence of actual malice, even when the
statement turns out to be false, is available where
the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First
National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a
defamatory statement where the offended party is
a public figure. Society’s interest and the
maintenance of good government demand a full
discussion of public affairs.44
Parenthetically, the Court cannot accept the
proposition that its ruling in Fermin disregarded
the higher standard of actual malice or malice in
fact when it found Cristinelli Fermin guilty of
committing libel against complainants who were
public figures. Actually, the Court found the
presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that
petitioner had the motive to make defamatory
imputations against complainants. Thus, petitioner
cannot, by simply making a general denial,
convince us that there was no malice on her part.
Verily, not only was there malice in law, the article
being malicious in itself, but there was also malice
in fact, as there was motive to talk ill against
complainants during the electoral campaign.
(Emphasis ours)
Indeed, the Court took into account the relatively
wide leeway given to utterances against public
figures in the above case, cinema and television
personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private
individual, the prosecution need not prove the
presence of malice. The law explicitly presumes its
existence (malice in law) from the defamatory
character of the assailed statement. 45 For his
defense, the accused must show that he has a
justifiable reason for the defamatory statement
even if it was in fact true.46
Petitioners peddle the view that both the penal
code and the Cybercrime Prevention Act violate
the country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the
Philippines,47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should
include the defense of truth.
But General Comment 34 does not say that the
truth of the defamatory statement should
constitute an all-encompassing defense. As it
happens, Article 361 recognizes truth as a defense
but under the condition that the accused has been
prompted in making the statement by good
motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal
prosecution for libel, the truth may be given in
evidence to the court and if it appears that the
matter charged as libelous is true, and, moreover,
that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or
omission not constituting a crime shall not be
admitted, unless the imputation shall have been
made against Government employees with respect
to facts related to the discharge of their official
duties.
In such cases if the defendant proves the truth of
the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the
Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle
freedom of expression.48 Indeed, the ICCPR states
that although everyone should enjoy freedom of
expression, its exercise carries with it special duties
and responsibilities. Free speech is not absolute. It
is subject to certain restrictions, as may be
necessary and as may be provided by law. 49
The Court agrees with the Solicitor General that
libel is not a constitutionally protected speech and
that the government has an obligation to protect
private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article
353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Court’s acquiescence goes only insofar as
the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with
it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture
associated with internet media is distinct from that
of print.
The internet is characterized as encouraging a
freewheeling, anything-goes writing style.50 In a
sense, they are a world apart in terms of quickness
of the reader’s reaction to defamatory statements
posted in cyberspace, facilitated by one-click reply
options offered by the networking site as well as by
the speed with which such reactions are
disseminated down the line to other internet users.
Whether these reactions to defamatory statement
posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime
law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall
also constitute an offense:
(a) Aiding or Abetting in the Commission of
Cybercrime. – Any person who willfully
abets or aids in the commission of any of
the offenses enumerated in this Act shall be
held liable.
(b) Attempt in the Commission of
Cybercrime. — Any person who willfully
attempts to commit any of the offenses
enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5
that renders criminally liable any person who
willfully abets or aids in the commission or
attempts to commit any of the offenses
enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent
effect on protected expression.
The Solicitor General contends, however, that the
current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of
expression of "netizens," the multitude that avail
themselves of the services of the internet. He
points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and
common usage is at times sufficient to guide law
enforcement agencies in enforcing the law. 51 The
legislature is not required to define every single
word contained in the laws they craft.
Aiding or abetting has of course well-defined
meaning and application in existing laws. When a
person aids or abets another in destroying a
forest,52 smuggling merchandise into the
country,53 or interfering in the peaceful picketing
of laborers,54 his action is essentially physical and
so is susceptible to easy assessment as criminal in
character. These forms of aiding or abetting lend
themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the
waters are muddier and the line of sight is
somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore
popular and unchallenged dogmas of cyberspace
use.
According to the 2011 Southeast Asia Digital
Consumer Report, 33% of Filipinos have accessed
the internet within a year, translating to about 31
million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged
countries for social networking. 56 Social
networking sites build social relations among
people who, for example, share interests,
activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are
Facebook and Twitter. As of late 2012, 1.2 billion
people with shared interests use Facebook to get
in touch.58 Users register at this site, create a
personal profile or an open book of who they are,
add other users as friends, and exchange
messages, including automatic notifications when
they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which
can be made visible to anyone, depending on the
user’s privacy settings.
If the post is made available to the public, meaning
to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s
screen such as "Like," "Comment," or "Share."
"Like" signifies that the reader likes the posting
while "Comment" enables him to post online his
feelings or views about the same, such as "This is
great!" When a Facebook user "Shares" a posting,
the original "posting" will appear on his own
Facebook profile, consequently making it visible to
his down-line Facebook Friends.
Twitter, on the other hand, is an internet social
networking and microblogging service that enables
its users to send and read short text-based
messages of up to 140 characters. These are known
as "Tweets." Microblogging is the practice of
posting small pieces of digital content—which
could be in the form of text, pictures, links, short
videos, or other media—on the internet. Instead of
friends, a Twitter user has "Followers," those who
subscribe to this particular user’s posts, enabling
them to read the same, and "Following," those
whom this particular user is subscribed to, enabling
him to read their posts. Like Facebook, a Twitter
user can make his tweets available only to his
Followers, or to the general public. If a post is
available to the public, any Twitter user can
"Retweet" a given posting. Retweeting is just
reposting or republishing another person’s tweet
without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the
blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d)
the internet café that may have provided the
computer used for posting the blog; e) the person
who makes a favorable comment on the blog; and
f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a
blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she
subscribes to Sun Broadband (Internet Service
Provider).
One day, Maria posts on her internet account the
statement that a certain married public official has
an illicit affair with a movie star. Linda, one of
Maria’s friends who sees this post, comments
online, "Yes, this is so true! They are so immoral."
Maria’s original post is then multiplied by her
friends and the latter’s friends, and down the line
to friends of friends almost ad infinitum. Nena, who
is a stranger to both Maria and Linda, comes across
this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter
account. Nena’s "Followers" then "Retweet" the
link to that blog site.
Pamela, a Twitter user, stumbles upon a random
person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately,
Pamela’s Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them
even press the Share button, resulting in the
further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking"
an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small
poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the
poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely
expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not
clear if aiding or abetting libel in the physical world
is a crime.
But suppose Nestor posts the blog, "Armand is a
thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of
any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And,
in the complex world of cyberspace expressions of
thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the
crime?
Except for the original author of the assailed
statement, the rest (those who pressed Like,
Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or
haphazardly of their response to the original
posting. Will they be liable for aiding or abetting?
And, considering the inherent impossibility of
joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to
be filed in court, who will make a choice as to who
should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional
form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such
law will tend to create a chilling effect on the
millions that use this new medium of
communication in violation of their
constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same
issue in Reno v. American Civil Liberties Union, 61 a
case involving the constitutionality of the
Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means
of a telecommunications device, of
"obscene or indecent" communications to any
recipient under 18 years of age; and (2) the
knowing use of an interactive computer service to
send to a specific person or persons under 18 years
of age or to display in a manner available to a
person under 18 years of age communications
that, in context, depict or describe, in terms
"patently offensive" as measured by contemporary
community standards, sexual or excretory
activities or organs.
Those who challenged the Act claim that the law
violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency
Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of
special concern for two reasons. First, the CDA is a
content-based regulation of speech. The
vagueness of such a regulation raises special U.S.
Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and
stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in
prison for each act of violation. The severity of
criminal sanctions may well cause speakers to
remain silent rather than communicate even
arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect,
coupled with the risk of discriminatory
enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those
implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA),
47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences
some speakers whose messages would be entitled
to constitutional protection. That danger provides
further reason for insisting that the statute not be
overly broad. The CDA’s burden on protected
speech cannot be justified if it could be avoided by
a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a
person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast
across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his
relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose,
which seeks to regulate the use of this cyberspace
communication technology to protect a person’s
reputation and peace of mind, cannot adopt means
that will unnecessarily and broadly sweep, invading
the area of protected freedoms. 62
If such means are adopted, self-inhibition borne of
fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and
discriminatory enforcement.63 The terms "aiding
or abetting" constitute broad sweep that generates
chilling effect on those who express themselves
through cyberspace posts, comments, and other
messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded on
the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained
in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the
Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are
used to mount ‘facial’ challenges to penal statutes
not involving free speech."
In an "as applied" challenge, the petitioner who
claims a violation of his constitutional right can
raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one
can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the
statute based solely on the violation of the rights of
third persons not before the court. This rule is also
known as the prohibition against third-party
standing.66
But this rule admits of exceptions. A petitioner may
for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no
violation of his own rights under the assailed
statute where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the
"chilling effect" on protected speech that comes
from statutes violating free speech. A person who
does not know whether his speech constitutes a
crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague
law thus chills him into silence.67
As already stated, the cyberspace is an
incomparable, pervasive medium of
communication. It is inevitable that any
government threat of punishment regarding
certain uses of the medium creates a chilling effect
on the constitutionally-protected freedom of
expression of the great masses that use it. In this
case, the particularly complex web of interaction
on social media websites would give law enforcers
such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who
boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the
court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while
another comment did not?
Of course, if the "Comment" does not merely react
to the original posting but creates an altogether
new defamatory story against Armand like "He
beats his wife and children," then that should be
considered an original posting published on the
internet. Both the penal code and the cybercrime
law clearly punish authors of defamatory
publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade
in the internet, it will destroy relationships and,
under certain circumstances, will generate enmity
and tension between social or economic groups,
races, or religions, exacerbating existing tension in
their relationships.
In regard to the crime that targets child
pornography, when "Google procures, stores, and
indexes child pornography and facilitates the
completion of transactions involving the
dissemination of child pornography," does this
make Google and its users aiders and abettors in
the commission of child pornography
crimes?68 Byars highlights a feature in the
American law on child pornography that the
Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive
computer service from civil liability for child
pornography as follows:
No provider or user of an interactive computer
service shall be treated as the publisher or speaker
of any information provided by another
information content provider and cannot be held
civilly liable for any action voluntarily taken in good
faith to restrict access to or availability of material
that the provider or user considers to be
obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child
pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a
willing accomplice to the distribution of child
pornography? When a user downloads the
Facebook mobile application, the user may give
consent to Facebook to access his contact details.
In this way, certain information is forwarded to
third parties and unsolicited commercial
communication could be disseminated on the basis
of this information.70 As the source of this
information, is the user aiding the distribution of
this communication? The legislature needs to
address this clearly to relieve users of annoying
fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is
unconstitutional. Its vagueness raises
apprehension on the part of internet users because
of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace
front in a fuzzy way. What is more, as the
petitioners point out, formal crimes such as libel
are not punishable unless consummated. 71 In the
absence of legislation tracing the interaction of
netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited
Commercial Communications, and Section 4(c)(2)
on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission
of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal
Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section
4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related
Identity Theft, and Section 4(c)(1) on Cybersex.
None of these offenses borders on the exercise of
the freedom of expression.
The crime of willfully attempting to commit any of
these offenses is for the same reason not
objectionable. A hacker may for instance have
done all that is necessary to illegally access another
party’s computer system but the security
employed by the system’s lawful owner could
frustrate his effort. Another hacker may have
gained access to usernames and passwords of
others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes
any person who willfully attempts to commit this
specific offense is not upheld, the owner of the
username and password could not file a complaint
against him for attempted hacking. But this is not
right. The hacker should not be freed from liability
simply because of the vigilance of a lawful owner
or his supervisor.
Petitioners of course claim that Section 5 lacks
positive limits and could cover the
innocent.73 While this may be true with respect to
cybercrimes that tend to sneak past the area of
free expression, any attempt to commit the other
acts specified in Section 4(a)(1), Section 4(a)(2),
Section 4(a)(3), Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1), Section 4(b)(2),
Section 4(b)(3), and Section 4(c)(1) as well as the
actors aiding and abetting the commission of such
acts can be identified with some reasonable
certainty through adroit tracking of their works.
Absent concrete proof of the same, the innocent
will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the
Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of
information and communications technologies
shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall
be one (1) degree higher than that provided for by
the Revised Penal Code, as amended, and special
laws, as the case may be.
Section 6 merely makes commission of existing
crimes through the internet a qualifying
circumstance. As the Solicitor General points out,
there exists a substantial distinction between
crimes committed through the use of information
and communications technology and similar crimes
committed using other means. In using the
technology in question, the offender often evades
identification and is able to reach far more victims
or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution
under this Act shall be without prejudice to any
liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7
merely expresses the settled doctrine that a single
set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and
the Revised Penal Code. When two different laws
define two crimes, prior jeopardy as to one does
not bar prosecution of the other although both
offenses arise from the same fact, if each crime
involves some important act which is not an
essential element of the other. 74 With the
exception of the crimes of online libel and online
child pornography, the Court would rather leave
the determination of the correct application of
Section 7 to actual cases.
Online libel is different. There should be no
question that if the published material on print,
said to be libelous, is again posted online or vice
versa, that identical material cannot be the subject
of two separate libels. The two offenses, one a
violation of Article 353 of the Revised Penal Code
and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and
are in fact one and the same offense. Indeed, the
OSG itself claims that online libel under Section
4(c)(4) is not a new crime but is one already
punished under Article 353. Section 4(c)(4) merely
establishes the computer system as another means
of publication.75 Charging the offender under both
laws would be a blatant violation of the
proscription against double jeopardy.76
The same is true with child pornography
committed online. Section 4(c)(2) merely expands
the ACPA’s scope so as to include identical
activities in cyberspace. As previously discussed,
ACPA’s definition of child pornography in fact
already covers the use of "electronic, mechanical,
digital, optical, magnetic or any other means."
Thus, charging the offender under both Section
4(c)(2) and ACPA would likewise be tantamount to
a violation of the constitutional prohibition against
double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any
of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph₱200,000.00) up
to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act
under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not
more than Five hundred thousand pesos
(Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed
against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred
thousand pesos (Ph₱500,000.00) up to maximum
amount commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or
a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million
pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree
higher than that provided for in Republic Act No.
9775, if committed through a computer system.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a
fine of at least Fifty thousand pesos (Ph₱50,000.00)
but not exceeding Two hundred fifty thousand
pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable
acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that
of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos
(Ph₱100,000.00) but not exceeding Five hundred
thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the
following crimes: Sections 4(a) on Offenses Against
the Confidentiality, Integrity and Availability of
Computer Data and Systems; 4(b) on Computer-
related Offenses; 4(a)(5) on Misuse of Devices;
when the crime punishable under 4(a) is
committed against critical infrastructure; 4(c)(1) on
Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the
Commission of Cybercrime.
The matter of fixing penalties for the commission
of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe
penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil
sought to be punished. The power to determine
penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act
or omission was but an element of another offense
or might just have been connected with another
crime.77 Judges and magistrates can only interpret
and apply them and have no authority to modify or
revise their range as determined by the legislative
department.
The courts should not encroach on this prerogative
of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law
enforcement authorities, with due cause, shall be
authorized to collect or record by technical or
electronic means traffic data in real-time
associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communication’s
origin, destination, route, time, date, size,
duration, or type of underlying service, but not
content, nor identities.
All other data to be collected or seized or disclosed
will require a court warrant.
Service providers are required to cooperate and
assist law enforcement authorities in the collection
or recording of the above-stated information.
The court warrant required under this section shall
only be issued or granted upon written application
and the examination under oath or affirmation of
the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable
grounds to believe that any of the crimes
enumerated hereinabove has been committed, or
is being committed, or is about to be committed;
(2) that there are reasonable grounds to believe
that evidence that will be obtained is essential to
the conviction of any person for, or to the solution
of, or to the prevention of, any such crimes; and (3)
that there are no other means readily available for
obtaining such evidence.
Petitioners assail the grant to law enforcement
agencies of the power to collect or record traffic
data in real time as tending to curtail civil liberties
or provide opportunities for official abuse. They
claim that data showing where digital messages
come from, what kind they are, and where they are
destined need not be incriminating to their senders
or recipients before they are to be protected.
Petitioners invoke the right of every individual to
privacy and to be protected from government
snooping into the messages or information that
they send to one another.
The first question is whether or not Section 12 has
a proper governmental purpose since a law may
require the disclosure of matters normally
considered private but then only upon showing
that such requirement has a rational relation to the
purpose of the law,79 that there is a compelling
State interest behind the law, and that the
provision itself is narrowly drawn. 80 In assessing
regulations affecting privacy rights, courts should
balance the legitimate concerns of the State
against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in
enacting the cybercrime law for there is a need to
put order to the tremendous activities in
cyberspace for public good.82 To do this, it is within
the realm of reason that the government should be
able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the
collection or recording of traffic data is a part, aims
to provide law enforcement authorities with the
power they need for spotting, preventing, and
investigating crimes committed in cyberspace.
Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory
countries to adopt legislative measures to
empower state authorities to collect or record
"traffic data, in real time, associated with specified
communications."83 And this is precisely what
Section 12 does. It empowers law enforcement
agencies in this country to collect or record such
data.
But is not evidence of yesterday’s traffic data, like
the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes
of accessing a computer system without
right,84 transmitting viruses,85 lasciviously
exhibiting sexual organs or sexual activity for favor
or consideration;86 and producing child
pornography87 could easily evade detection and
prosecution by simply moving the physical location
of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes
from virtually anywhere: from internet cafés, from
kindred places that provide free internet services,
and from unregistered mobile internet connectors.
Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do
not have listed addresses and can neither be
located nor identified. There are many ways the
cyber criminals can quickly erase their tracks.
Those who peddle child pornography could use
relays of computers to mislead law enforcement
authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection
or recording and a subsequent recourse to court-
issued search and seizure warrant that can succeed
in ferreting them out.
Petitioners of course point out that the provisions
of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries
and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc88 that certain
constitutional guarantees work together to create
zones of privacy wherein governmental powers
may not intrude, and that there exists an
independent constitutional right of privacy. Such
right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v.
Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves
the right to independence in making certain
important decisions, while informational privacy
refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to
informational privacy—that those who oppose
government collection or recording of traffic data
in real-time seek to protect.
Informational privacy has two aspects: the right not
to have private information disclosed, and the right
to live freely without surveillance and
intrusion.91 In determining whether or not a matter
is entitled to the right to privacy, this Court has laid
down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual
or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his
or her expectation of privacy must be one society
is prepared to accept as objectively reasonable. 92
Since the validity of the cybercrime law is being
challenged, not in relation to its application to a
particular person or group, petitioners’ challenge
to Section 12 applies to all information and
communications technology (ICT) users, meaning
the large segment of the population who use all
sorts of electronic devices to communicate with
one another. Consequently, the expectation of
privacy is to be measured from the general public’s
point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT
user who courses his communication through a
service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For
example, an ICT user who writes a text message
intended for another ICT user must furnish his
service provider with his cellphone number and the
cellphone number of his recipient, accompanying
the message sent. It is this information that creates
the traffic data. Transmitting communications is
akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through
the postal service. Those who post letters have no
expectations that no one will read the information
appearing outside the envelope.
Computer data—messages of all kinds—travel
across the internet in packets and in a way that may
be likened to parcels of letters or things that are
sent through the posts. When data is sent from any
one source, the content is broken up into packets
and around each of these packets is a wrapper or
header. This header contains the traffic data:
information that tells computers where the packet
originated, what kind of data is in the packet (SMS,
voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is
going, and how the packet fits together with other
packets.93 The difference is that traffic data sent
through the internet at times across the ocean do
not disclose the actual names and addresses
(residential or office) of the sender and the
recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer
system to another where their contents are pieced
back together.
Section 12 does not permit law enforcement
authorities to look into the contents of the
messages and uncover the identities of the sender
and the recipient.
For example, when one calls to speak to another
through his cellphone, the service provider’s
communication’s system will put his voice message
into packets and send them to the other person’s
cellphone where they are refitted together and
heard. The latter’s spoken reply is sent to the caller
in the same way. To be connected by the service
provider, the sender reveals his cellphone number
to the service provider when he puts his call
through. He also reveals the cellphone number to
the person he calls. The other ways of
communicating electronically follow the same
basic pattern.
In Smith v. Maryland,94 cited by the Solicitor
General, the United States Supreme Court
reasoned that telephone users in the ‘70s must
realize that they necessarily convey phone
numbers to the telephone company in order to
complete a call. That Court ruled that even if there
is an expectation that phone numbers one dials
should remain private, such expectation is not one
that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that
they cannot communicate or exchange data with
one another over cyberspace except through some
service providers to whom they must submit
certain traffic data that are needed for a successful
cyberspace communication. The conveyance of
this data takes them out of the private sphere,
making the expectation to privacy in regard to
them an expectation that society is not prepared to
recognize as reasonable.
The Court, however, agrees with Justices Carpio
and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together,
and analyzed, they reveal patterns of activities
which can then be used to create profiles of the
persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s
close associations, religious views, political
affiliations, even sexual preferences. Such
information is likely beyond what the public may
expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides
been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities,
"with due cause," to collect or record by technical
or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause"
has no precedent in law or jurisprudence and that
whether there is due cause or not is left to the
discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not
required to define the meaning of every word it
uses in drafting the law.
Indeed, courts are able to save vague provisions of
law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails
to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that
"due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the
Court cannot draw this meaning since Section 12
does not even bother to relate the collection of
data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying
a general gathering of data. It is akin to the use of
a general search warrant that the Constitution
prohibits.
Due cause is also not descriptive of the purpose for
which data collection will be used. Will the law
enforcement agencies use the traffic data to
identify the perpetrator of a cyber attack? Or will it
be used to build up a case against an identified
suspect? Can the data be used to prevent
cybercrimes from happening?
The authority that Section 12 gives law
enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection
should not disclose identities or content data, such
restraint is but an illusion. Admittedly, nothing can
prevent law enforcement agencies holding these
data in their hands from looking into the identity of
their sender or receiver and what the data
contains. This will unnecessarily expose the
citizenry to leaked information or, worse, to
extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of traffic
data to those "associated with specified
communications." But this supposed limitation is
no limitation at all since, evidently, it is the law
enforcement agencies that would specify the
target communications. The power is virtually
limitless, enabling law enforcement authorities to
engage in "fishing expedition," choosing whatever
specified communication they want. This evidently
threatens the right of individuals to privacy.
The Solicitor General points out that Section 12
needs to authorize collection of traffic data "in real
time" because it is not possible to get a court
warrant that would authorize the search of what is
akin to a "moving vehicle." But warrantless search
is associated with a police officer’s determination
of probable cause that a crime has been
committed, that there is no opportunity for getting
a warrant, and that unless the search is
immediately carried out, the thing to be searched
stands to be removed. These preconditions are not
provided in Section 12.
The Solicitor General is honest enough to admit
that Section 12 provides minimal protection to
internet users and that the procedure envisioned
by the law could be better served by providing for
more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough.
The grant of the power to track cyberspace
communications in real time and determine their
sources and destinations must be narrowly drawn
to preclude abuses.95
Petitioners also ask that the Court strike down
Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine.
These doctrines however, have been consistently
held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates
nor punishes any type of speech. Therefore, such
analysis is unnecessary.
This Court is mindful that advances in technology
allow the government and kindred institutions to
monitor individuals and place them under
surveillance in ways that have previously been
impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area
of privacy and facilitate intrusions into it. In
modern terms, the capacity to maintain and
support this enclave of private life marks the
difference between a democratic and a totalitarian
society."96 The Court must ensure that laws
seeking to take advantage of these technologies be
written with specificity and definiteness as to
ensure respect for the rights that the Constitution
guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The
integrity of traffic data and subscriber information
relating to communication services provided by a
service provider shall be preserved for a minimum
period of six (6) months from the date of the
transaction. Content data shall be similarly
preserved for six (6) months from the date of
receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time
extension for another six (6) months: Provided,
That once computer data preserved, transmitted
or stored by a service provider is used as evidence
in a case, the mere furnishing to such service
provider of the transmittal document to the Office
of the Prosecutor shall be deemed a notification to
preserve the computer data until the termination
of the case.
The service provider ordered to preserve computer
data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13
constitutes an undue deprivation of the right to
property. They liken the data preservation order
that law enforcement authorities are to issue as a
form of garnishment of personal property in civil
forfeiture proceedings. Such order prevents
internet users from accessing and disposing of
traffic data that essentially belong to them.
No doubt, the contents of materials sent or
received through the internet belong to their
authors or recipients and are to be considered
private communications. But it is not clear that a
service provider has an obligation to indefinitely
keep a copy of the same as they pass its system for
the benefit of users. By virtue of Section 13,
however, the law now requires service providers to
keep traffic data and subscriber information
relating to communication services for at least six
months from the date of the transaction and those
relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that
data when it crossed his computer if he was so
minded. The service provider has never assumed
responsibility for their loss or deletion while in its
keep.
At any rate, as the Solicitor General correctly points
out, the data that service providers preserve on
orders of law enforcement authorities are not
made inaccessible to users by reason of the
issuance of such orders. The process of preserving
data will not unduly hamper the normal
transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law
enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person
or service provider to disclose or submit
subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation
to a valid complaint officially docketed and
assigned for investigation and the disclosure is
necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being
likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a
judicial function. But it is well-settled that the
power to issue subpoenas is not exclusively a
judicial function. Executive agencies have the
power to issue subpoena as an adjunct of their
investigatory powers.98
Besides, what Section 14 envisions is merely the
enforcement of a duly issued court warrant, a
function usually lodged in the hands of law
enforcers to enable them to carry out their
executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search
or seizure nor would it violate the privacy of
communications and correspondence. Disclosure
can be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of
Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement
authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to
conduct interception, as defined in this Act, and:
(a) To secure a computer system or a
computer data storage medium;
(b) To make and retain a copy of those
computer data secured;
(c) To maintain the integrity of the relevant
stored computer data;
(d) To conduct forensic analysis or
examination of the computer data storage
medium; and
(e) To render inaccessible or remove those
computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities
may order any person who has knowledge about
the functioning of the computer system and the
measures to protect and preserve the computer
data therein to provide, as is reasonable, the
necessary information, to enable the undertaking
of the search, seizure and examination.
Law enforcement authorities may request for an
extension of time to complete the examination of
the computer data storage medium and to make a
return thereon but in no case for a period longer
than thirty (30) days from date of approval by the
court.
Petitioners challenge Section 15 on the assumption
that it will supplant established search and seizure
procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement
authorities that would ensure the proper
collection, preservation, and use of computer
system or data that have been seized by virtue of a
court warrant. The exercise of these duties do not
pose any threat on the rights of the person from
whom they were taken. Section 15 does not appear
to supersede existing search and seizure rules but
merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon
expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement
authorities, as the case may be, shall immediately
and completely destroy the computer data subject
of a preservation and examination.
Section 17 would have the computer data,
previous subject of preservation or examination,
destroyed or deleted upon the lapse of the
prescribed period. The Solicitor General justifies
this as necessary to clear up the service provider’s
storage systems and prevent overload. It would
also ensure that investigations are quickly
concluded.
Petitioners claim that such destruction of
computer data subject of previous preservation or
examination violates the user’s right against
deprivation of property without due process of
law. But, as already stated, it is unclear that the
user has a demandable right to require the service
provider to have that copy of the data saved
indefinitely for him in its storage system. If he
wanted them preserved, he should have saved
them in his computer when he generated the data
or received it. He could also request the service
provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to
restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer
Data.— When a computer data is prima facie found
to be in violation of the provisions of this Act, the
DOJ shall issue an order to restrict or block access
to such computer data.
Petitioners contest Section 19 in that it stifles
freedom of expression and violates the right
against unreasonable searches and seizures. The
Solicitor General concedes that this provision may
be unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must
satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Computer data99 may refer to entire programs or
lines of code, including malware, as well as files
that contain texts, images, audio, or video
recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it
is indisputable that computer data, produced or
created by their writers or authors may constitute
personal property. Consequently, they are
protected from unreasonable searches and
seizures, whether while stored in their personal
computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution
provides that the right to be secure in one’s papers
and effects against unreasonable searches and
seizures of whatever nature and for any purpose
shall be inviolable. Further, it states that no search
warrant shall issue except upon probable cause to
be determined personally by the judge. Here, the
Government, in effect, seizes and places the
computer data under its control and disposition
without a warrant. The Department of Justice
order cannot substitute for judicial search warrant.
The content of the computer data can also
constitute speech. In such a case, Section 19
operates as a restriction on the freedom of
expression over cyberspace. Certainly not all forms
of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to
seize content alleged to be unprotected without
any judicial warrant, it is not enough for him to be
of the opinion that such content violates some law,
for to do so would make him judge, jury, and
executioner all rolled into one.100
Not only does Section 19 preclude any judicial
intervention, but it also disregards jurisprudential
guidelines established to determine the validity of
restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination
of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and
present danger rule.101 Section 19, however,
merely requires that the data to be blocked be
found prima facie in violation of any provision of
the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in
relation to any penal provision. It does not take into
consideration any of the three tests mentioned
above.
The Court is therefore compelled to strike down
Section 19 for being violative of the constitutional
guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with
the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No.
1829 with imprisonment of prision correctional in
its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each
and every noncompliance with an order issued by
law enforcement authorities.
Petitioners challenge Section 20, alleging that it is
a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished
as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates
elements of the offense which are defined therein.
If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not
have had to make reference to any other statue or
provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its
maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of
criminal cases by committing any of the following
acts:
x x x.
Thus, the act of non-compliance, for it to be
punishable, must still be done "knowingly or
willfully." There must still be a judicial
determination of guilt, during which, as the
Solicitor General assumes, defense and
justifications for non-compliance may be raised.
Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down
by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating
Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-
agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC),
under the administrative supervision of the Office
of the President, for policy coordination among
concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall
have the following powers and functions:
(a) To formulate a national cybersecurity plan and
extend immediate assistance of real time
commission of cybercrime offenses through a
computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly
delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan
without any sufficient standards or parameters for
it to follow.
In order to determine whether there is undue
delegation of legislative power, the Court has
adopted two tests: the completeness test and the
sufficient standard test. Under the first test, the
law must be complete in all its terms and
conditions when it leaves the legislature such that
when it reaches the delegate, the only thing he will
have to do is to enforce it.1avvphi1 The second test
mandates adequate guidelines or limitations in the
law to determine the boundaries of the delegate’s
authority and prevent the delegation from running
riot.103
Here, the cybercrime law is complete in itself when
it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools,
policies, risk management approaches, actions,
training, best practices, assurance and
technologies that can be used to protect cyber
environment and organization and user’s
assets.104 This definition serves as the parameters
within which CICC should work in formulating the
cybersecurity plan.
Further, the formulation of the cybersecurity plan
is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating
their detection, investigation, and prosecution at
both the domestic and international levels, and by
providing arrangements for fast and reliable
international cooperation."105 This policy is clearly
adopted in the interest of law and order, which has
been considered as sufficient standard. 106 Hence,
Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act
10175 that penalizes posting of
unsolicited commercial
communications;
b. Section 12 that authorizes the
collection or recording of traffic
data in real-time; and
c. Section 19 of the same Act that
authorizes the Department of
Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes
accessing a computer system
without right;
b. Section 4(a)(3) that penalizes
data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes
cyber-squatting or acquiring
domain name over the internet in
bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes
identity theft or the use or misuse
of identifying information belonging
to another;
e. Section 4(c)(1) that penalizes
cybersex or the lascivious exhibition
of sexual organs or sexual activity
for favor or consideration;
f. Section 4(c)(2) that penalizes the
production of child pornography;
g. Section 6 that imposes penalties
one degree higher when crimes
defined under the Revised Penal
Code are committed with the use of
information and communications
technologies;
h. Section 8 that prescribes the
penalties for cybercrimes;
i. Section 13 that permits law
enforcement authorities to require
service providers to preserve traffic
data and subscriber information as
well as specified content data for six
months;
j. Section 14 that authorizes the
disclosure of computer data under
a court-issued warrant;
k. Section 15 that authorizes the
search, seizure, and examination of
computer data under a court-issued
warrant;
l. Section 17 that authorizes the
destruction of previously preserved
computer data after the expiration
of the prescribed holding periods;
m. Section 20 that penalizes
obstruction of justice in relation to
cybercrime investigations;
n. Section 24 that establishes a
Cybercrime Investigation and
Coordinating Center (CICC);
o. Section 26(a) that defines the
CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of
the Revised Penal Code that
penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel
as VALID and CONSTITUTIONAL with
respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with
respect to others who simply receive the
post and react to it; and
2. Section 5 that penalizes aiding or
abetting and attempt in the commission of
cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to
Section 4(a)(1) on Illegal Access, Section
4(a)(2) on Illegal Interception, Section
4(a)(3) on Data Interference, Section
4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section
4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections
4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on
online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE
DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the
offender under both the Revised Penal Code and
Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
1. Online libel as to which, charging the
offender under both Section 4(c)(4) of
Republic Act 10175 and Article 353 of the
Revised Penal Code constitutes a violation
 of the proscription against double
jeopardy; as well as
2. Child pornography committed online as
to which, charging the offender under both
Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child
Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in
respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.
[ G.R. No. 188760, June 30, 2020 ]
THE COMMISSION ON AUDIT, REPRESENTED BY ITS
CHAIRMAN, THE BUREAU OF INTERNAL REVENUE,
REPRESENTED BY ITS COMMISSIONER, AND THE
BUREAU OF CUSTOMS, REPRESENTED BY ITS
COMMISSIONER, PETITIONERS, VS. HON. SILVINO
T. PAMPILO, JR., IN HIS CAPACITY AS PRESIDING
JUDGE OF THE REGIONAL TRIAL COURT, MANILA,
BRANCH 26, SOCIAL JUSTICE SOCIETY AND
VLADIMIR ALARIQUE T. CABIGAO, RESPONDENTS;
PANGKALAHATANG SANGGUNIAN MANILA AND
SUBURBS DRIVER'S ASSOCIATION NATIONWIDE
(PASANG MASDA), INCORPORATED, RESPONDENT-
INTERVENOR;
PILIPINAS SHELL PETROLEUM CORPORATION,
CALTEX PHILIPPINES, INC., AND PETRON
CORPORATION, NECESSARY PARTIES.
[G.R. No. 189060
CHEVRON PHILIPPINES, INC., PETITIONER, VS.
HON. SILVINO T. PAMPILO, JR., PRESIDING JUDGE,
REGIONAL TRIAL COURT OF MANILA, BRANCH 26,
SOCIAL JUSTICE SOCIETY AND VLADIMIR ALARIQUE
T. CABIGAO, RESPONDENTS;
PANGKALAHATANG SANGGUNIAN MANILA AND
SUBURBS DRIVER'S ASSOCIATION NATIONWIDE
(PASANG MASDA), INCORPORATED, RESPONDENT-
INTERVENOR;
[G.R. No. 189333]
PETRON CORPORATION, PETITIONER, VS. HON.
SILVINO T. PAMPILO, JR., SOCIAL JUSTICE SOCIETY,
VLADIMIR ALARIQUE T. CABIGAO, AND
PANGKALAHATANG SANGGUNIAN MANILA AND
SUBURBS DRIVERS ASSOCIATION NATIONWIDE,
INC. (PASANG MASDA), RESPONDENTS.
DECISION
HERNANDO, J.:
Before this Court are Consolidated Petitions
for Certiorari1 filed under Rule 65 of the Rules of
Court assailing the Orders issued by the Regional
Trial Court (RTC) of Manila, Branch 26, in Civil Case
No. 03-106101, on the following dates: April 27,
2009,2 May 5, 2009,3 June 23, 20094 and July 7,
20095 (collectively referred to as the Assailed
Orders).
Factual Antecedents
The material and relevant facts are as follows:
On March 21, 2003, private respondent Social
Justice Society (SJS), a political parry duly
registered with the Commission of Elections, filed
with the RTC of Manila, a Petition for Declaratory
Relief,6 docketed as Civil Case No. 03-106101,
against Pilipinas Shell Petroleum Corporation
(Shell); Caltex Philippines, Inc. (Caltex), and Petron
Corporation (Petron), collectively referred to as the
"Big 3." In its Petition, private respondent SJS raised
as an issue the oil companies' business practice of
increasing the prices of their petroleum products
whenever the price of crude oil increases in the
world market despite that fact that they had
purchased their inventories at a much lower price
long before the increase. SJS argued that such
practice constitutes monopoly and combination in
restraint of trade, prohibited under Article 1867 of
the Revised Penal Code (RPC). SJS likewise
contended that the acts of these oil companies of
increasing the prices of its oil products whenever
their competitors increase their prices fall under
the term "combination or concerted action" used
in Section 11 (a)8 of Republic Act (RA) No. 8479,
otherwise known as the Downstream Oil Industry
Deregulation Act of 1998 (Approved on February
10, 1998). The Petition was later amended to
include private respondent Atty. Vladmir Alarique
T. Cabigao (Cabigao), a member of private
respondent SJS, as an additional petitioner to the
case.9
The Big 3 separately moved for the dismissal of the
case on the grounds of lack of legal standing, lack
of cause of action, lack of jurisdiction, and failure
to exhaust administrative remedies.10
On December 17, 2003, public respondent RTC
issued an Order11 denying the motions to dismiss
and directing the parties to refer the matter to the
Joint Task Force of the Department of Energy (DOE)
and Department of Justice (DOJ) pursuant to
Section 11 of RA 8479. In the meantime, public
respondent RTC ordered the suspension of the
proceedings.
Chevron sought reconsideration but public
respondent RTC denied the same in its June 30,
2004 Order.12
Thereafter, the DOE-DOJ Joint Task Force
submitted its Report13 finding no clear evidence
that the Big 3 violated Article 186 of the RPC or
Section 11 (a) of RA 8479. Based on the said report,
the Big 3 orally moved for the dismissal of the
case.14 Private respondents, on the other hand,
moved to open and examine the books of account
of the Big 3 to enable the court to determine
whether Section 11 (a) of RA 8479 had been
violated.15
Ruling of the Regional Trial Court
On April 27, 2009, public respondent RTC issued
the first assailed Order, which resolved to:
-1 deny the motions to dismiss of the Big 3;
-2 grant private respondents' motion to open and
examine the books of accounts of the Big 3; and
-3 order the Commission on Audit (COA), Bureau of
Internal Revenue (BIR), and the Bureau of Customs
(BOC) to open and examine the books of accounts
of the Big 3.
The dispositive portion of the Order reads:
IN VIEW OF THE FOREGOING, the Motion[s] to
Dismiss [are] hereby DENIED and Motion for the
Opening and Examination of the Books of Account
of the [Big 3 is hereby GRANTED. Accordingly, the
[COA], [BIR], and [BOC] are hereby ordered to open
and examine the cash receipts, cash disbursement
books, the purchase orders on the petroleum
products, delivery receipts, sales invoices and
other related documents on the purchases of the
petroleum products covering the period January
2003 to December 2003. The three government
agencies are hereby ordered to take necessary
actions to comply with the Order of this Court.
Furnish copy of this Order to the [COA], [BIR], and
[BOC].
SO ORDERED.16
The Big 3 separately sought
reconsideration.17 Private respondents, on the
other hand, moved18 for the production of records
and the inclusion of private respondent Cabigao as
part of the team that would open and examine the
books of accounts of the Big 3.
On May 5, 2009, public respondent RTC issued the
second assailed Order, directing the Chairman of
COA and the Commissioners of the BIR and the BOC
to form a panel of examiners to conduct an
examination of the books of a9counts of the Big 3
and to submit a report thereon within three (3)
months from receipt of the Order.19
Though not parties to the case, the COA, the BIR,
and the BOC, through the Office of the Solicitor
General (OSG), were constrained to file a Motion
for Reconsideration20 of the April 27 and May 5,
2009 Orders on the ground that the order of
examination is unwarranted and beyond their
respective jurisdictions.
Meanwhile, private respondent-
intervenor Pangkalahatang Sanggunian Manila and
Suburbs Drivers' Association Nationwide (Pasang
Masda), Inc. filed a Motion for Intervention with
attached Petition-in-Intervention,21 which the Big
3 opposed.
On June 23, 2009, public respondent RTC issued
the third assailed Order, granting Pasang
Masda's Motion for Intervention and thereby
admitting its Petition-in-Intervention.22
On July 7, 2009, the RTC issued the fourth assailed
Order denying the motions for reconsideration of
the Big 3 and the OSG and granting private
respondents' motion to include private respondent
Cabigao as part of the panel of examiners.23 Public
respondent RTC stood pat on its April 27, 2009
Order citing the doctrine of parens patriae.24
A few days later, on July 24, 2009, the RTC, acting
on the manifestation of private respondents that
the government agencies have not acted to comply
with its order, directed the COA, the BIR, and the
BOC to explain within 72 hours from notice why
they should not be cited in contempt for failure to
comply.25
After the lapse of the 72-hour period, private
respondents moved for the issuance of a warrant
of arrest against the Chairman of COA and the
Commissioners of the BIR and BOC for their refusal
to obey the orders of the RTC.26 Accordingly, the
RTC issued an Order27 giving the Chairman of COA
and the Commissioners of the BIR and BOC five (5)
days from receipt of the notice within which to file
a comment or opposition to the motion for the
issuance of a warrant of arrest against them.
Left with no other recourse, the COA, represented
by its Chairman, the BIR and the BOC, represented
by their respective Commissioners, through the
OSG, filed before this Court, on July 31, 2009, a
Petition for Certiorari with Application for
Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction,28 docketed as G.R. No.
188760, assailing the April 27 and May 5, 2009
Orders of the public respondent RTC. Direct resort
to this Court was made because the issues raised
were purely legal, which is an exception to the
doctrine of hierarchy of courts.
Finding the application for TRO meritorious, this
Court on August 4, 2009 issued a TRO,29 enjoining
the implementation of the April 27 and May 5,
2009 Orders of public respondent RTC.
Chevron and Petron followed suit and filed with
this Court their respective petitions for certiorari.
Chevron filed a Petition for Certiorari and
Prohibition with Application for TRO and/Writ of
Preliminary Injunction with Motion for
Consolidation,30 docketed as G.R. No. 189060,
assailing the April 27 and July 7, 2009 Orders while
Petron filed a Petition for Certiorari (with prayer
for issuance of TRO and/or Writ of Preliminary
Injunction),31 docketed as G.R. No. 189333,
assailing the April 27, June 23, and July 7, 2009
Orders of public respondent RTC. Both Petitions
were consolidated with G.R. No. 188760.32
Shell, on the other hand, filed with the Court of
Appeals (CA) a Petition for Certiorari with prayer
for the issuance of a TRO and/or a writ of
preliminary injunction, docketed as CA-G.R. SP No.
110050,33 assailing the April 27, June 23, and July
7, 2009 Orders of public respondent RTC.
On August 6, 2010, the CA rendered a
Decision34 on the Petition for Certiorari, docketed
as CA-G.R. SP No. 110050. Finding grave abuse of
discretion on the part of public respondent RTC,
the CA reversed and set aside the April 27, June 23,
and July 7, 2009 Orders, and ordered the dismissal
of the case for declaratory relief for lack of cause of
action. The appellate court, in essence, opined that
the issues raised by private respondents cannot be
made subject of an action for declaratory relief. As
to the propriety of the intervention of Pasang
Masda, it ruled that Pasang Masda had no legal
interest in the matter.
Aggrieved, private respondents sought to have the
August 6, 2010 Decision reconsidered. However,
having been informed of the existence of G.R. No.
188760 assailing the same Orders of public
respondent RTC, the CA resolved in its November
12, 2010 Resolution35 to defer any action on the
case.
On June 4, 2013, this Court issued a
Resolution36 directing the CA to resolve the
pending motion for reconsideration in CA-G.R. SP
No. 110050 with dispatch and to inform the Court
of whatever action in may take thereon.
In compliance with this Court's directive, on August
6, 2013, the CA issued a Resolution37 denying the
Motion for Reconsideration filed by private
respondents.
Issues
Hence, the instant consolidated Petitions, raising
the following issues:
In G.R. No. 188760, the OSG contends that public
respondent RTC gravely abused [its] discretion in
that:
I.
[It] ordered [the COA, the BIR, and the BOC] to do
a patently ultra vires act, directing COA to audit
beyond its constitutional mandate and directing
BIR and BOC to examine outside their statutory
powers.
II.
[It] invoked parens patriae and Rule 27 on
Production or Inspection of Documents in [its]
compulsory designation of COA, BIR and BOC as
anti-trust auditors while usurping the authority of
the [DOE-DOJ Joint] Task Force created by the Oil
Deregulation Law for anti-trust monitoring.
III.
[It] disregarded Due Process, to enforce [its] void
orders, by threatening COA, BIR, and BOC with
contempt despite lack of notice and being non-
parties to the case.38
In G.R. No. 189060, Chevron interposes the
following issues:
I. WHETHER [PRIVATE RESPONDENTS'] PETITION IN
CIVIL CASE NO. 03-106101:
(i) RAISES A JUSTICIABLE CONTROVERSY OR
ACTUAL CASE THAT IS RIPE FOR JUDICIAL
DETERMINATION; AND
(ii) REQUIRES EXERCISE OF POWER AND
AUTHORITY BEYOND THE SCOPE OF THE
"JUDICIAL POWER" OF COURTS AS
PROVIDED UNDER THE CONSTITUTION;
II. WHETHER THE [PUBLIC RESPONDENT RTC] OF
MANILA HAS JURISDICTION TO CONDUCT A
PRELIMINARY INVESTIGATION ON WHETHER
PLAYERS IN THE DOWNSTREAM OIL INDUSTRY
HAVE COMMITTED A VIOLATION OF THE ANTI-
TRUST SAFEGUARDS UNDER R.A. 8479.39
In G.R. No. 189333, Petron alleges that:
A.
[PUBLIC RESPONDENT RTC] COMMITTED GRAVE
ABUSE OF DISCRETION AMOUTING TO LACK OR
EXCESS OF JURISDICTION IN DENYING PETRON'S
MOTION TO DISMISS DESPITE THE FACT THAT
[PRIVATE RESPONDENT] SJS' AMENDED PETITION
FOR DECLARATORY RELIEF MERELY SEEKS AN
ADVISORY OPINION OF THE COURT ON WHETHER
X X X PETRON AND THE OTHER OIL COMPANIES,
PILIPINAS SHELL PETROLEUM CORPORATION AND
CHEVRON PHILIPPINES, INC. HAVE VIOLATED THE
LAWS AGAINST MONOPOLY, COMBINATIONS IN
RESTRAINT OF TRADE OR CARTELIZATION.
B.
[PUBLIC RESPONDENT RTC] COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN
[IT] DENIED PETRON'S MOTION TO DISMISS
[PRIVATE RESPONDENT] SJS' AMENDED PETITION
AFTER THE [DOE-DOJ] JOINT TASK FORCE TO
WHICH [PUBLIC RESPONDENT RTC] REFERRED THE
CASE "FOR THE SPEEDY DISPOSITION OF THE
PENDING CONTROVERSY," SUBMITTED ITS REPORT
DATED APRIL 17, 2008 THAT THERE IS NO
MONOPOLY OR COMBINATION IN RESTRAINT OF
TRADE OR CARTELIZATION COMMITTED BY
PETRON, SHELL AND CHEVRON.
C.
[PUBLIC RESPONDENT RTC] COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN [IT] ORDERED THE
INSPECTION AND EXAMINATION OF THE BOOKS OF
ACCOUNT OF PETRON, SHELL AND CHEVRON
NOTWITHSTANDING THAT THE SAME IS
EXCLUSIVELY COGNIZABLE BY THE [DOE-DOJ]
JOINT TASK FORCE CREATED UNDER R.A. 8479.
D.
[PUBLIC RESPONDENT RTC] COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION WHEN [IT] ADMITTED
PASANG MASDA'S PETITION-IN-INTERVENTION
DESPITE THE LATTER'S LACK OF MATERIAL, DIRECT
AND IMMEDIATE LEGAL INTEREST IN THE MATTER
OF LITIGATION BEFORE THE LOWER COURT.40
Simply put, the issues to be resolved are as follows:
(1) Whether public respondent RTC
committed grave abuse of discretion in not
 dismissing the Amended Petition for
Declaratory Relief;
(2) Whether public respondent RTC
committed grave abuse of discretion in
ordering the COA, the BIR, and the BOC to
examine the books of accounts of the Big 3
and in including private respondent
Cabigao as part of the "panel of examiners;"
and
(3) Whether public respondent RTC
committed grave abuse of discretion in
allowing Pasang Masda to intervene in the
case.
The Parties' Arguments
G.R. No. 188760
The OSG assails the April 27 and May 5, 2009
Orders of the RTC on the ground that it would be
legally impossible for the COA, the BIR, and the
BOC to comply with the said Orders because it is
beyond the mandates of these government
agencies to examine the books of accounts of the
Big 3.41 Also, the OSG asserts that the orders are
not sanctioned by the Rules of Court, specifically
Rule 27 on the Production or Inspection of
Documents or Things, and RA 8479.42 In fact,
under RA 8479, it is the DOE-DOJ Joint Task Force
which has the power and authority to monitor or
investigate oil companies, and initiate the filing of
a complaint, if necessary.43 In this case,
considering that public respondent RTC already
referred the case to the DOE-DOJ Joint Task Force
for investigation, there was no need for public
respondent RTC to issue said orders as it is bound
by the task force's finding that no violation was
committed by the Big 3 under the doctrine of
conclusive finality.44
Shell
Shell, impleaded as a necessary party, likewise
argues that public respondent RTC committed
grave abuse of discretion in ordering the opening
of the books of accounts of the Big 3 as this is
beyond the scope of a petition for declaratory
relief, which is only limited to the declaration of
legal rights.45 Shell claims that it is beyond the
mandates and statutory powers of the COA, the
BIR, and the BOC to examine the books of accounts
of the Big 3,46 and that such order is a violation of
the Big 3's right to due process.47
G.R. No. 189060
Chevron ascribes grave abuse of discretion on the
part of the RTC in issuing the April 27 and July 7,
2009 Orders. Chevron argues that the Amended
Petition for Declaratory Relief filed by private
respondents failed to raise a justiciable
controversy and to establish a cause of action for a
declaratory relief.48 Chevron points out that there
is no factual allegation in the Petition that private
respondents' rights are being threatened or that
there is an imminent violation thereof that should
be prevented by the declaratory relief
sought.49 Instead, from the allegations, it appears
that private respondents want public respondent
RTC to investigate and render an opinion on
whether the Big 3 violated Article 186 of the RPC or
Section 11 of RA 8479.50 This, however, is not the
function of the court.51 Rather, it is the DOE-DOJ
Joint Task Force that has primary jurisdiction to
investigate whether there was a violation of
Section 11 of RA 8479.52 Thus, the RTC exceeded
its power or authority when it created its own
procedure, ordering the government agencies to
investigate the Big 3 and allowing private
respondent Cabigao to become part of the panel of
examiners.53 To justify its orders, the RTC cites the
doctrine of parens patriae. Chevron, however,
avers that this doctrine is inapplicable as this only
applies to measures taken by the State to protect
those who cannot protect themselves such as
minors, insane, and incompetent persons.54
G.R. No. 189333
Petron imputes grave abuse of discretion on the
part of the public respondent trial court in issuing
the April 27, June 23 and July 7, 2009 Orders.
Echoing the arguments of Chevron, Petron posits
that a petition for declaratory relief is not available
in the instant case because the requisites for an
action for declaratory relief are not present,
specifically there is no justiciable controversy, and
that a reading of the petition readily shows that
private respondents are merely asking for an
advisory opinion, which courts are proscribed from
rendering.55 Neither do private respondents have
a cause of action in view of the factual findings of
the DOE-DOJ Joint Task Force that the Big 3 did not
commit any violation of Section 11 of RA 8479 and
Article 186 of the RPC.56 Also, public respondent
RTC exceeded its authority when it ordered the
COA, the BIR, and the BOC to inspect and examine
the books of accounts of the Big 3 because under
RA 8479, it is the DOE-DOJ Joint Task Force which
has the primary jurisdiction to monitor, investigate,
and file the necessary cases in court against any
person or entity in the oil industry.57 Moreover,
public respondent RTC cannot use the doctrine
of parens patriae to justify its order because the
doctrine only refers to the inherent power of the
State to provide protection to those who lack the
legal capacity to act on their own behalf.58 With
regard to the June 23, 2009 Order, Petron
contends that public respondent RTC committed
grave abuse of discretion in allowing Pasang
Masda to intervene despite the fact that it lacked
legal interest in the subject matter of
litigation.59 Furthermore, Petron claims that
the Pasang Masda's Petition-in-Intervention was
filed beyond the time allowed by the rules as the
parties have already pleaded their respective
positions and the DOE-DOJ Joint Task Force had
already submitted its Report.60
Private respondents' arguments
Private respondents, on the other hand, assert that
they availed of the proper recourse and that all the
requisites for a declaratory relief are
present.61 They maintain that the RTC has
jurisdiction over their Petition and that the rule on
primary jurisdiction invoked by the Big 3 is not a
hard-and-fast rule.62 They insist that the
jurisdiction of the DOE-DOJ Joint Task Force is not
exclusive and that its findings are not
conclusive.63 As regards the order of public
respondent RTC to open and examine the books of
accounts of the Big 3, private respondents opine
that this is in accordance with the principles of
social justice and Article 24 of the Civil Code, which
grants power to the court to issue such order to
protect the consuming public.64
Pasang Masda's arguments
Similarly, Pasang Masda banks on the social justice
provisions of the Constitution as legal basis for the
orders of public respondent RTC.65 It avers that
the auditing powers of the COA is not limited to
government entities because as a member of the
United Nations Board of Auditors (UNBOA), it was
previously deployed as part of the auditing team of
17 UN agencies.66 In addition, Pasang Masda cites
the case of Manila Electric Company (MERALCO) v.
Lualhati,67 where the COA was tasked by the
Energy Regulatory Commission to audit MERALCO,
as precedent for the orders of public respondent
RTC.68 It also posits that the creation of the DOE-
DOJ Joint Task Force cannot divest the court of its
judicial power over the instant case and that its
findings are merely recommendatory.69 Regarding
its intervention, Pasang Masda claims that there
had been cases where the court allowed a party to
intervene despite the fact that the parties have
already submitted a compromise agreement as
long as the intervenor had an interest in the
case.70 In this case, it insists that it has an interest
in the outcome of the case as consumers of oil
products.71
Ruling
The Petitions are meritorious.
An action for declaratory relief is not the proper
remedy.
A petition for declaratory relief is an action
instituted by a person interested in a deed, will,
contract or other written instrument, executive
order or resolution, to determine any question of
construction or validity arising from the
instrument, executive order or regulation, or
statute and for a declaration of his rights and duties
thereunder.72 It must be filed before the breach or
violation of the statute, deed or contract to which
it refers; otherwise, the court can no longer
assume jurisdiction over the action.73 Thus, "[t]he
only issue that may be raised in such [an action] is
the question of construction or validity of
provisions in an instrument or statute."74
In the instant case, private respondents, in their
Amended Petition, alleged that "[the Big 3 now and
then increase the price of their petroleum
products" and that "an increase in prices declared
by one of them is inevitably followed by increases
by the others."75 Private respondents, thus,
interposed the following issues:
 (A) WHETHER X X X THE ACT OF OIL
COMPANIES, INCLUDING [THE BIG 3, IN
INCREASING THE PRICE OF THEIR OIL
PRODUCTS WHENEVER THE PRICE OF
CRUDE OIL IN THE WORLD MARKET
INCREASES, DESPITE THE FACT THAT THEY
HAD PURCHASED THEIR INVENTORY OF
CRUDE OIL LONG BEFORE SUCH INCREASE
IN WORLD MARKET PRICE AND AT A MUCH
LOWER PRICE, IS VIOLATIVE OF THE
FOREGOING LEGAL PROVISIONS.
(B) WHETHER X X X THE ACT OF AN OIL
COMPANY IN INCREASING THE PRICES OF
ITS OIL PRODUCTS WHENEVER ITS
PROPOSED COMPETITORS INCREASE THEIR
PRICES FALLS UNDER THE TERM
'COMBINATION OR CONCERTED ACTIONS'
USED IN SECTION 11 (A) OF [RA] 8479.76
Based on the foregoing, the core issue involved in
the Amended Petition is whether the business
practice of the Big 3 violates the RPC and RA 8479.
This, however, cannot be made the subject matter
of a declaratory relief.
Private respondents filed their Amended Petition
based on acts already committed or being
committed by the Big 3, which they believe are in
violation of the RPC and RA 8479. It appears
therefore that the filing of the Amended Petition
was done on the assumption that there was
already a breach or violation on the part of the Big
3, which cannot be the subject of a declaratory
relief. It must be stressed that an action for
declaratory relief presupposes that there has been
no actual breach as such action is filed only for the
purpose of securing an authoritative statement of
the rights and obligations of the parties under a
contract, deed or statute.77 It cannot be availed of
if the statute, deed or contract has been breached
or violated because, in such a case, the remedy is
for the aggrieved party to file the appropriate
ordinary civil action in court.78 Thus, the Court has
consistently ruled that "[i]f adequate relief is
available through another form or action or
proceeding, the other action must be preferred
over an action for declaratory relief."79
Worth mentioning at this point is the ruling
in Sarmiento v. Hon. Capapas,80 where the Court
explained that:
x x x if an action for declaratory relief were to be
allowed in this case, after a breach of the statute,
the decision of the court in the action for
declaratory relief would prejudge the action for
violation of the barter law.
The institution of an action for declaratory relief
after a breach of contract or statute, is
objectionable on various grounds, among which is
that it violates the rule on multiplicity of suits. If the
case at bar were allowed for a declaratory relief,
the judgment therein notwithstanding, another
action would still lie against the importer
respondent for violation of the barter law. So,
instead of one case only before the courts in which
all issues would be decided, two cases will be
allowed, one being the present action for
declaratory relief and a subsequent one for the
confiscation of the importations as a consequence
of the breach of the barter law.
The impropriety of allowing an action for
declaratory relief, after a breach of the law, can be
seen in the very decision of the court itself, which
is now subject of the appeal. Whereas the case at
bar was purported to bring about a simple
declaration of the rights of the parties to the
action, the judgment goes further than said
declaration and decrees that the importation by
the respondent corporation violates the law, and
further directs that the legal importation be
confiscated under the provisions of the law
(Section 1 (e), R.A. No. 1194). This confiscation
directed by the court lies clearly beyond the scope
and nature of an action for declaratory relief, as the
judgment of confiscation goes beyond the issues
expressly raised, and to that extent it is null and
void.81
Similarly, in this case, an action for declaratory
relief may no longer be allowed considering that
private respondents are not merely asking for a
declaration of their rights but are actually asking
public respondent RTC to determine whether there
was a violation of Section 11 of RA 8479, for which
the Big 3 may be prosecuted and found criminally
liable. And since there is already an alleged breach,
it cannot be the subject of a declaratory relief.
Public respondent RTC therefore committed grave
abuse of discretion in not dismissing the Amended
Petition.
The DOE-DOJ Joint Task Force is duly authorized by
law to investigate and to order the prosecution of
cartelization.
Moreover, the determination of such issue lies
with the DOE-DOJ Joint Task Force. Section 13 of
RA 8479 pertinently provides:
SEC. 13. Remedies. -
a) Government Action - Whenever it is
determined by the Joint Task Force created
under Section 14 (d) of this Act, that there
is a threatened, imminent or actual
violation of Section 11 of this Act, it shall
direct the provincial or city prosecutors
having jurisdiction to institute an action to
prevent or restrain such violation with the
Regional Trial Court of the place where the
defendant or any of the defendants reside
or has his place of business. Pending
hearing of the complaint and before final
judgment, the court may at any time issue
a [TRO] or an order of injunction as shall be
deemed just within the premises, under the
same conditions and principles as
injunctive relief is granted under the Rules
of Court.
Whenever it is determined by the Joint Task
Force that the Government or any of its
instrumentalities or agencies, including
government-owned or controlled
corporations, shall suffer loss or damage in
its business or property by reason of
violation of Section 11 of this Act, such
instrumentality, agency or corporation may
file an action to recover damages and the
costs of suit with the Regional Trial Court
which has jurisdiction as provided above.
b) Private Complaint. - Any person or entity
shall report any violation of Section 11 of
this Act to the Joint Task Force. The Joint
Task Force shall investigate such reports in
aid of which the DOE Secretary may
exercise the powers granted under Section
15 of this Act. The Joint Task Force shall
prepare a report embodying its findings
and recommendations as a result of any
such investigation, and the report shall be
made public at the discretion of the Joint
Task Force. In the event that the Joint Task
Force determines that there has been a
violation of Section 11 of this Act, the
private person or entity shall be entitled to
sue for and obtain injunctive relief, as well
as damages, in the Regional Trial Court
having jurisdiction over any of the parties,
under the same conditions and principles
as injunctive relief is granted under the
Rules of Court.
Corollarily, DOE Department Circular No.
98-03-004 or the Rules and Regulations
Implementing [RA] 8479, "Downstream Oil
Industry Deregulation Act of 1998"
provides in Section 17 thereof, viz.:
SECTION 17. Remedies
The DOE-DOJ Task Force, created under Section 14
(d) of the Act, shall take the following remedial
measures:
a. investigate and act upon complaints or
reports from any person of an
unreasonable rise in the prices of
petroleum products and may motu proprio,
investigate and/or file the necessary
complaint with the proper court or agency;
b. investigate and act upon complaints or
reports of commission of the prohibited
acts under Section 11 of the Act, and after
determination of such violation endorse
the same to the provincial or city
prosecutor having jurisdiction for
institution of the appropriate action;
c. prepare and submit a report to the
Secretary of Energy and Secretary of Justice
embodying its findings and
recommendations as a result of its
investigation of the alleged violation of
Section 11 of the Act;
d. investigate and act upon a complaint by
any instrumentality or agency of the
Government including government-owned
or -controlled corporations, that loss or
damage has been suffered or incurred by
such instrumentality, agency or
 government corporation by reason of
violation of Section 11 of the Act; and
e. perform such other functions as may
jointly be assigned by the Secretary of
Energy and the Secretary of Justice.
In Cong. Garcia v. Hon. Corona,82 the Court made
it clear that it is the DOE-DOJ Task Force which has
the power to investigate and cause the prosecution
of violators. It ruled that:
Article 186 of the [RPC], as amended, punishes as a
felony the creation of monopolies and
combinations in restraint of trade. The Solicitor
General, on the other hand, cites provisions of RA
8479 intended to prevent competition from being
corrupted or manipulated. Section 11, "Anti-Trust
Safeguards," defines and prohibits cartelization
and predatory pricing. It penalizes the persons and
officers involved with imprisonment of three (3) to
seven (7) years and fines ranging from One Million
to Two million pesos. For this purpose, a Joint Task
Force from the [DOE] and [DOJ] is created under
Section 14 to investigate and order the prosecution
of violations.
xxxx
Section 13 of the Act provides for "Remedies,"
under which the filing of actions by government
prosecutors and the investigation of private
complainants by the Task Force is provided.
Sections 14 and 15 provide how the [DOE] shall
monitor .and prevent the occurrence of collusive
pricing in the industry.
It can be seen, therefore, that instead of the price
controls advocated by the petitioner, Congress .has
enacted anti-trust measures which it believes will
promote free and fair competition. Upon the other
hand, the disciplined, determined, consistent and
faithful execution of the law is the function of the
President. As stated by public respondents, the
remedy against unreasonable price increases is not
the nullification of Section 19 of R.A. 8479 but the
setting into motion of its various other
provisions.83
Again, in Congressman Garcia v. The Executive
Secretary, et al.,84 the Court declared that:
x x x The remedy against the perceived failure of
the Oil Deregulation Law to combat cartelization is
not to declare it invalid, but to set in motion its anti-
trust safeguards under Sections 11, 12, and 13.
xxxx
x x x R.A. No. 8479, x x x does not condone these
acts; indeed, Section 11 (a) of the law expressly
prohibits and punishes cartelization, which is
defined in the same section as "any agreement,
combination or concerted action by refiners,
importers and/or dealers, or their
representatives, to fix prices, restrict outputs or
divide markets, either by products or by areas, or
allocate markets, either by products or by areas, in
restraint of trade or free competition, including any
contractual stipulation which prescribes pricing
levels and profit margins." This definition is broad
enough to include the alleged acts of overpricing or
price-fixing by the Big 3. R.A. No. 8479 has
provided, aside from prosecution for cartelization,
several other anti-trust mechanisms, including the
enlarged scope of the [DOE's] monitoring power
and the creation of a Joint Task Force to
immediately act on complaints against
unreasonable rise in the price of petroleum
products. Petitioner Garcia's failure is that he failed
to show that he resorted to these measures before
filing the instant petition. His belief that these
oversight mechanisms are unrealistic and
insufficient does not permit disregard of these
remedies.85
Here, the RTC initially resolved to refer the instant
case to the DOE-DOJ Joint Task Force for
investigation and determination of whether the Big
3 were in violation of Section 11 of RA 8479.
However, upon receipt of the report of the DOE-
DOJ Joint Task Force that there was no violation
committed by the Big 3, the RTC, instead of
dismissing the case, ordered the COA, the BIR, and
the BOC to open and examine the books of
accounts of the Big 3 and even allowed private
respondent Cabigao to be part of the panel of
examiners. In doing so, the trial court divested the
DOE-DOJ Joint Task Force of its power and
authority and vested the same to the COA, the BIR,
the BOC and private respondent Cabigao.
To justify its orders, the public respondent trial
court invokes the doctrine of parens patriae.
Under the doctrine of parens patriae (father of his
country), the judiciary, as an agency of the State,
has the supreme power and authority to intervene
and to provide protection to persons non sui juris -
those who because of their age or incapacity are
unable to care and fend for
themselves.86 In Maynilad Water Services, Inc. v.
Secretary of the Department of Environment and
Natural Resources,87 this Court even went further
and ruled that "Filipino consumers have become
such persons of disability deserving protection by
the State, as their welfare are being increasingly
downplayed, endangered, and overwhelmed by
business pursuits."
This doctrine, however, cannot be applied in this
case considering that Congress by enacting RA
8479 has already provided for the mechanism to
protect the interest of the Filipino consumers.
Public respondent RTC, therefore, cannot create a
new panel of examiners to replace the DOE-DOJ
Joint Task Force as this goes against RA 8479.
It is beyond the mandates of the COA, the BIR, and
the BOC to open and examine the books of
accounts of the Big 3 in the instant case.
Besides, it is beyond the mandates of the COA, the
BIR, and the BOC to open and examine the books
of accounts of the Big 3.
In Fernando v. [COA],88 the Court explained the
audit jurisdiction of the COA:
Section 2, Article IX-D of the 1987 Constitution
provides for the COA's audit jurisdiction:
SECTION 2. (1) The [COA] shall have the power,
authority, and duty to examine, audit, and settle all
accounts pertaining to the revenue and receipts of,
and expenditures or uses of funds and property,
owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or
controlled corporations with original charters, and
on a post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted
fiscal autonomy under this Constitution; (b)
autonomous state colleges and universities; (c)
other government-owned or controlled
corporations and their subsidiaries; and (d) such
nongovernmental entities receiving subsidy or
equity, directly or indirectly, from or through the
Government, which are required by law or the
granting institution to submit to such audit as a
condition of subsidy or equity. However, where the
internal control system of the audited agencies is
inadequate, the Commission may adopt such
measures, including temporary or special pre-
audit, as are necessary and appropriate to correct
the deficiencies. It shall keep the general accounts
of the Government and, for such period as may be
provided by law, preserve the vouchers and other
supporting papers pertaining thereto.
The COA was envisioned by our Constitutional
framers to be a dynamic, effective, efficient and
independent watchdog of the Government. It
granted the COA the authority to determine
whether government entities comply with laws and
regulations in disbursing government funds, and to
disallow illegal or irregular disbursements of
government funds.
In the case of Funa v. Manila Economic and Cultural
Office, et al., this Court enumerated and clarified
the COA's jurisdiction over various governmental
entities. In that case, this Court stated that the
COA's audit jurisdiction extends to the following
entities:
1. The government, or any of its
subdivisions, agencies and
instrumentalities;
2. GOCCs with original charters;
3. GOCCs without original charters;
4. Constitutional bodies, commissions and
offices that have been granted fiscal
autonomy under the Constitution; and
5. Non-governmental entities receiving
subsidy or equity, directly or indirectly,
from or through the government, which are
required by law or the granting institution
to submit to the COA for audit as a
condition of subsidy or equity.
COA's authority to examine and audit the accounts
of government and, to a certain extent, non-
governmental entities, is consistent with Section
(Sec.) 29 (1) of Presidential Decree (P.D.) No. 1445
otherwise known as the Auditing Code of the
Philippines, which grants the COA visitorial
authority over the following non-governmental
entities:
1. Non-governmental entities "subsidized
by the government;"
2. Non-governmental entities "required to
pay levy or government share;"
3. Non-governmental entities that have
"received counterpart funds from the
government;" and
4. Non-governmental entities "partly
funded by donations through the
government."
COA's audit jurisdiction is also laid down in Section
11, Chapter 4, Subtitle B, Title I, Book V of the
Administrative Code of 1987:
SECTION 11. General Jurisdiction. (1) The
Commission on Audit shall have the power,
authority, and duty to examine, audit, and settle all
accounts pertaining to the revenue and receipts of,
and expenditures or uses of funds and property,
owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or
controlled corporations with original charters, and
on a post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted
fiscal autonomy under this Constitution; (b)
autonomous state colleges and universities; (c)
other government-owned or controlled
corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the
Government, which are required by law or the
granting institution to submit to such audit as a
condition of subsidy or equity. However, where the
internal control system of the audited agencies is
inadequate, the Commission may adopt such
measures, including temporary or special pre-
audit, as are necessary and appropriate to correct
the deficiencies. It shall keep the general accounts
of the Government and, for such period as may be
provided by law, preserve the vouchers and other
supporting papers pertaining thereto.
xxx xxx xxx
As can be gleaned from the foregoing, the COA's
audit jurisdiction generally covers public entities.
However, its authority to audit extends even to
non-governmental entities insofar as the latter
receives financial aid from the government. Thus,
it is clear that the determination of COA's
jurisdiction over a specific entity does not merely
require an examination of the nature of the entity.
Should the entity be found to be non-
governmental, further determination must be had
as to the source of its funds or the nature of the
account sought to be audited by the COA.
In the analysis of an entity's nature, this Court, in
prior cases, examined the statutory origin, the
charter, purpose and the relations that a particular
entity has with the State.
In Phil. Society for the Prevention of Cruelty to
Animals v. [COA], this Court clarified that totality of
an entity's relations with the State must be
considered. If the corporation is created by the
State as the latter's own agency or instrumentality
to help it in carrying out its governmental
functions, then that corporation is considered
public; otherwise, it is private. This Court examined
the charter of therein petitioner, Philippine Society
for the Prevention of Cruelty to Animals, its
employees' membership to social insurance
system, and the presence of x x x government
officials in its board, among others. In that case,
this Court ruled that the mere public purpose of an
entity's existence does not, per se, make it a public
corporation:
Fourth. The respondents contend that the
petitioner is a "body politic" because its primary
purpose is to secure the protection and welfare of
animals which, in turn, redounds to the public
good.
This argument, is, at best, specious. The fact that a
certain juridical entity is impressed with public
interest does not, by that circumstance alone,
make the entity a public corporation, inasmuch as
a corporation may be private although its charter
contains provisions of a public character,
incorporated solely for the public good. This class
of corporations may be considered quasi-public
corporations, which are private corporations that
render public service, supply public wants or
pursue other eleemosynary objectives. While
purposely organized for the gain or benefit of its
members, they are required by law to discharge
functions for the public benefit. Examples of these
corporations are utility, railroad, warehouse,
telegraph, telephone, water supply corporations
and transportation companies. It must be stressed
that a quasi-public corporation is a species of
private corporations, but the qualifying factor is
the type of service the former renders to the
public: if it performs a public service, then it
becomes a quasi-public corporation.
Authorities are of the view that the purpose alone
of the corporation cannot be taken as a safe guide,
for the fact is that almost all corporations are
nowadays created to promote the interest, good,
or convenience of the public. A bank, for example,
is a private corporation; yet, it is created for a
public benefit. Private schools and universities are
likewise private corporations; and yet, they are
rendering public service. Private hospitals and
wards are charged with heavy social
responsibilities. More so with all common carriers.
On the other hand, there may exist a public
corporation even if it is endowed with gifts or
donations from private individuals.
Meanwhile, in Engr. Feliciano v. [COA], this Court
ruled that regardless of the nature of the
corporation, the determining factor of COA's audit
jurisdiction is government ownership or control of
the corporation. In this case, the Court found that
local water districts (LWDs), are owned and
controlled by the government, as evidenced from
the fact that "there [was] no private party involved
in their creation, ownership of the national or local
government of their assets, the manner of
appointment of their board of directors and their
employees' being subject to civil service laws." The
Court also noted as an indication of the
government's control, the latter's power to
appoint LWD directors, to provide for their
compensation, as well as the Local Water Utilities
Administration's power to require LWDs to merge
or consolidate their facilities or operations.
In Boy Scouts of the Philippines v. [COA], the Court,
in arriving at the conclusion that BSP is subject to
the COA's audit jurisdiction, examined its charter,
Commonwealth Act No. 111, and the provisions of
the same concerning BSP's governing body, its
classification and relationship with the National
Government, specifically as an attached agency of
then Department of Education, Culture and Sports
(DECS), as well as its sources of funds.
Without a doubt, the case of the Big 3 would not
fall under the audit jurisdiction of COA. They are
not public entities nor are they non governmental
entities receiving financial aid from the
government.
As to Pasang Masda's reliance on the case
of Meralco v. Lualhati,89 this is misplaced. That
case involves a situation different from the present
case as what was in issue therein was the authority
of the COA under Section 22 of the Administrative
Code of 1987 to examine the books, records and
accounts of public utilities in connection with the
fixing of rates for the purpose of determining
franchise taxes. Thus, it cannot be used as
precedent to justify the orders of public
respondent RTC.
With respect to the BIR, its Commissioner is
authorized to examine books, paper, record, or
other data of taxpayers but only to ascertain the
correctness of any return, or in making a return
when none was made, or in determining the
liability of any person for any internal revenue tax,
or in collecting such liability, or evaluating the
person's tax compliance.90 The BOC, on the other
hand, is authorized to audit or examine all books,
records, and documents of importers necessary or
relevant for the purpose of collecting the proper
duties and taxes.91 Since there are no taxes or
duties involved in this case, the BIR and the BOC
likewise have no power and authority to open and
examine the books of accounts of the Big 3.
As previously discussed, it is the DOE-DOJ Joint
Task Force that has the sole power and authority to
monitor, investigate, and endorse the filing of
complaints, if necessary, against oil companies.
And considering that the remedy against
cartelization is already provided by law, the public
respondent trial court exceeded its jurisdiction and
gravely abused its discretion when it ordered the
COA, the BIR, and the BOC to open and examine
the books of account of the Big 3 and allowed
private respondent Cabigao, a certified public
accountant, to become part of the panel of
examiners. Clearly, the RTC not only failed to WHEREFORE, the Consolidated Petitions are
uphold the law but worse, he contravened the law. hereby GRANTED. The April 27, 2009, May 5, 2009,
June 23, 2009, and July 7, 2009 Orders of the
Pasang Masda failed to satisfy all the requirements Regional Trial Court of Manila, Branch 26, in Civil
for intervention. Case No. 03-106101 are hereby REVERSED and SET
ASIDE. The Temporary Restraining Order dated
As regards the issue of intervention, Section August 4, 2009 is hereby made PERMANENT.
1,92 Rule 19 of the Rules of Court requires that: (1) Accordingly, the Petition for Declaratory Relief is
the movant must have a legal interest in the matter ordered DISMISSED.
being litigated; (2) the intervention must not
unduly delay or prejudice the adjudication of the SO ORDERED.
rights of the parties; and (3) the claim of the
intervenor must not be capable of being properly
decided in a separate proceeding. The right to
intervene, however, is not an absolute right as the
granting of a motion to intervene is addressed to
the sound discretion of the court and may only be
allowed if the movant is able to satisfy all the
requirements.93

In this case, Pasang Masda's allegation that its

members consume petroleum products is not
sufficient to show that they have legal interest in
the matter being litigated considering that there
are other oil players in the market aside from the
Big 3. Jurisprudence mandates that legal interest
must be actual, substantial, material, direct and
immediate, and not simply contingent or
expectant.94 Such is not the situation in this case.
In fact, there is no showing that Pasang Masda has
something to gain or lose in the outcome of the
case. Thus, it was grave abuse of discretion on the
part of public respondent RTC in allowing Pasang
Masda to intervene despite its failure to comply
with the first requirement.

Besides, even if the Court relaxes the definition of

"legal interest" in the instant case, the granting of
the motion to intervene would still be improper
because the subject matter of the petition-in-
intervention, just like the petition, cannot be the
subject of an action for declaratory relief Since an
intervention is not an independent action but is
ancillary and supplement to the main case, the
dismissal of the main case would necessarily
include the dismissal of the ancillary case.95

All told, the Court finds grave abuse of discretion

on the part of public respondent RTC as to its
issuance of the Assailed Orders.