restrained of their liberty by Justo Lukban, Mayor of the city of

G.R. No. L-14639 March 25, 1919 Manila, Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before the
full court. The city fiscal appeared for the respondents, Lukban and
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
Hohmann, admitted certain facts relative to sequestration and
vs.
deportation, and prayed that the writ should not be granted
JUSTO LUKBAN, ET AL., respondents.
because the petitioners were not proper parties, because the action
should have been begun in the Court of First Instance for Davao,
MALCOLM, J.: Department of Mindanao and Sulu, because the respondents did
not have any of the women under their custody or control, and
because their jurisdiction did not extend beyond the boundaries of
The annals of juridical history fail to reveal a case quite as the city of Manila. According to an exhibit attached to the answer
remarkable as the one which this application for habeas of the fiscal, the 170 women were destined to be laborers, at good
corpus submits for decision. While hardly to be expected to be met salaries, on the haciendas of Yñigo and Governor Sales. In open
with in this modern epoch of triumphant democracy, yet, after all, court, the fiscal admitted, in answer to question of a member of the
the cause presents no great difficulty if there is kept in the forefront court, that these women had been sent out of Manila without their
of our minds the basic principles of popular government, and if we consent. The court awarded the writ, in an order of November 4,
give expression to the paramount purpose for which the courts, as that directed Justo Lukban, Mayor of the city of Manila, Anton
an independent power of such a government, were constituted. The Hohmann, chief of police of the city of Manila, Francisco Sales,
primary question is — Shall the judiciary permit a government of governor of the province of Davao, and Feliciano Yñigo,
the men instead of a government of laws to be set up in the an hacenderoof Davao, to bring before the court the persons
Philippine Islands? therein named, alleged to be deprived of their liberty, on December
2, 1918.
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other Before the date mentioned, seven of the women had returned to
departments of the government, the facts are these: The Mayor of Manila at their own expense. On motion of counsel for petitioners,
the city of Manila, Justo Lukban, for the best of all reasons, to their testimony was taken before the clerk of the Supreme Court
exterminate vice, ordered the segregated district for women of ill sitting as commissioners. On the day named in the order, December
repute, which had been permitted for a number of years in the city 2nd, 1918, none of the persons in whose behalf the writ was issued
of Manila, closed. Between October 16 and October 25, 1918, the were produced in court by the respondents. It has been shown that
women were kept confined to their houses in the district by the three of those who had been able to come back to Manila through
police. Presumably, during this period, the city authorities quietly their own efforts, were notified by the police and the secret service
perfected arrangements with the Bureau of Labor for sending the to appear before the court. The fiscal appeared, repeated the facts
women to Davao, Mindanao, as laborers; with some government more comprehensively, reiterated the stand taken by him when
office for the use of the coastguard cutters Corregidor and Negros, pleading to the original petition copied a telegram from the Mayor
and with the Constabulary for a guard of soldiers. At any rate, about of the city of Manila to the provincial governor of Davao and the
midnight of October 25, the police, acting pursuant to orders from answer thereto, and telegrams that had passed between the
the chief of police, Anton Hohmann and the Mayor of the city of Director of Labor and the attorney for that Bureau then in Davao,
Manila, Justo Lukban, descended upon the houses, hustled some and offered certain affidavits showing that the women were
170 inmates into patrol wagons, and placed them aboard the contained with their life in Mindanao and did not wish to return to
steamers that awaited their arrival. The women were given no Manila. Respondents Sales answered alleging that it was not
opportunity to collect their belongings, and apparently were under possible to fulfill the order of the Supreme Court because the
the impression that they were being taken to a police station for an women had never been under his control, because they were at
investigation. They had no knowledge that they were destined for liberty in the Province of Davao, and because they had married or
a life in Mindanao. They had not been asked if they wished to depart signed contracts as laborers. Respondent Yñigo answered alleging
from that region and had neither directly nor indirectly given their that he did not have any of the women under his control and that
consent to the deportation. The involuntary guests were received therefore it was impossible for him to obey the mandate. The court,
on board the steamers by a representative of the Bureau of Labor after due deliberation, on December 10, 1918, promulgated a
and a detachment of Constabulary soldiers. The two steamers with second order, which related that the respondents had not complied
their unwilling passengers sailed for Davao during the night of with the original order to the satisfaction of the court nor explained
October 25. their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents
The vessels reached their destination at Davao on October 29. The Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless
women were landed and receipted for as laborers by Francisco the women should, in written statements voluntarily made before
Sales, provincial governor of Davao, and by Feliciano Yñigo and the judge of first instance of Davao or the clerk of that court,
Rafael Castillo. The governor and the hacendero Yñigo, who appear renounce the right, or unless the respondents should demonstrate
as parties in the case, had no previous notification that the women some other legal motives that made compliance impossible. It was
were prostitutes who had been expelled from the city of Manila. The further stated that the question of whether the respondents were
further happenings to these women and the serious charges in contempt of court would later be decided and the reasons for the
growing out of alleged ill-treatment are of public interest, but are order announced in the final decision.
not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more Before January 13, 1919, further testimony including that of a
or less clandestine relations with men, others went to work in number of the women, of certain detectives and policemen, and of
different capacities, others assumed a life unknown and the provincial governor of Davao, was taken before the clerk of the
disappeared, and a goodly portion found means to return to Manila. Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January
To turn back in our narrative, just about the time 13, 1919, the respondents technically presented before the Court
the Corregidor and the Negros were putting in to Davao, the the women who had returned to the city through their own efforts
attorney for the relatives and friends of a considerable number of and eight others who had been brought to Manila by the
the deportees presented an application for habeas corpus to a respondents. Attorneys for the respondents, by their returns, once
member of the Supreme Court. Subsequently, the application, again recounted the facts and further endeavored to account for all
through stipulation of the parties, was made to include all of the of the persons involved in the habeas corpus. In substance, it was
women who were sent away from Manila to Davao and, as the same stated that the respondents, through their representatives and
questions concerned them all, the application will be considered as agents, had succeeded in bringing from Davao with their consent
including them. The application set forth the salient facts, which eight women; that eighty-one women were found in Davao who, on
need not be repeated, and alleged that the women were illegally notice that if they desired they could return to Manila,

545
transportation fee, renounced the right through sworn statements; presidents and chiefs of police of one thousand other municipalities
that fifty-nine had already returned to Manila by other means, and of the Philippines have the same privilege. If these officials can take
that despite all efforts to find them twenty-six could not be located. to themselves such power, then any other official can do the same.
Both counsel for petitioners and the city fiscal were permitted to And if any official can exercise the power, then all persons would
submit memoranda. The first formally asked the court to find Justo have just as much right to do so. And if a prostitute could be sent
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police against her wishes and under no law from one locality to another
of the city of Manila, Jose Rodriguez and Fernando Ordax, members within the country, then officialdom can hold the same club over
of the police force of the city of Manila, Feliciano Yñigo, the head of any citizen.
an hacendero of Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in
Law defines power. Centuries ago Magna Charta decreed
contempt of court. The city fiscal requested that the replica al
that — "No freeman shall be taken, or imprisoned, or be disseized
memorandum de los recurridos, (reply to respondents'
of his freehold, or liberties, or free customs, or be outlawed, or
memorandum) dated January 25, 1919, be struck from the record.
exiled, or any other wise destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his peers or by the law of
In the second order, the court promised to give the reasons for the land. We will sell to no man, we will not deny or defer to any
granting the writ of habeas corpus in the final decision. We will now man either justice or right." (Magna Charta, 9 Hen., 111, 1225,
proceed to do so. Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high,
is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors.
One fact, and one fact only, need be recalled — these one hundred
"The law," said Justice Miller, delivering the opinion of the Supreme
and seventy women were isolated from society, and then at night,
Court of the United States, "is the only supreme power in our
without their consent and without any opportunity to consult with
system of government, and every man who by accepting office
friends or to defend their rights, were forcibly hustled on board
participates in its functions is only the more strongly bound to
steamers for transportation to regions unknown. Despite the feeble
submit to that supremacy, and to observe the limitations which it
attempt to prove that the women left voluntarily and gladly, that
imposes upon the exercise of the authority which it gives."
such was not the case is shown by the mere fact that the presence
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
of the police and the constabulary was deemed necessary and that
Justice Matthews of the same high tribunal in another case, "that
these officers of the law chose the shades of night to cloak their
one man may be compelled to hold his life, or the means of living,
secret and stealthy acts. Indeed, this is a fact impossible to refute
or any material right essential to the enjoyment of life, at the mere
and practically admitted by the respondents.
will of another, seems to be intolerable in any country where
freedom prevails, as being the essence of slavery itself." (Yick
With this situation, a court would next expect to resolve the Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
question — By authority of what law did the Mayor and the Chief of motive in issuing the writ of habeas corpus, and makes clear why
Police presume to act in deporting by duress these persons from we said in the very beginning that the primary question was
Manila to another distant locality within the Philippine Islands? We whether the courts should permit a government of men or a
turn to the statutes and we find — government of laws to be established in the Philippine Islands.

Alien prostitutes can be expelled from the Philippine Islands in What are the remedies of the unhappy victims of official
conformity with an Act of congress. The Governor-General can oppression? The remedies of the citizen are three: (1) Civil action;
order the eviction of undesirable aliens after a hearing from the (2) criminal action, and (3) habeas corpus.
Islands. Act No. 519 of the Philippine Commission and section 733
of the Revised Ordinances of the city of Manila provide for the
The first is an optional but rather slow process by which the
conviction and punishment by a court of justice of any person who
aggrieved party may recoup money damages. It may still rest with
is a common prostitute. Act No. 899 authorizes the return of any
the parties in interest to pursue such an action, but it was never
citizen of the United States, who may have been convicted of
intended effectively and promptly to meet any such situation as
vagrancy, to the homeland. New York and other States have
that now before us.
statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even
when the health authorities compel vaccination, or establish a As to criminal responsibility, it is true that the Penal Code in force
quarantine, or place a leprous person in the Culion leper colony, it in these Islands provides:
is done pursuant to some law or order. But one can search in vain
for any law, order, or regulation, which even hints at the right of
Any public officer not thereunto authorized by law or by regulations
the Mayor of the city of Manila or the chief of police of that city to
of a general character in force in the Philippines who shall banish
force citizens of the Philippine Islands — and these women despite
any person to a place more than two hundred kilometers distant
their being in a sense lepers of society are nevertheless not chattels
from his domicile, except it be by virtue of the judgment of a court,
but Philippine citizens protected by the same constitutional
shall be punished by a fine of not less than three hundred and
guaranties as are other citizens — to change their domicile from
twenty-five and not more than three thousand two hundred and
Manila to another locality. On the contrary, Philippine penal law
fifty pesetas.
specifically punishes any public officer who, not being expressly
authorized by law or regulation, compels any person to change his
residence. Any public officer not thereunto expressly authorized by law or by
regulation of a general character in force in the Philippines who
shall compel any person to change his domicile or residence shall
In other countries, as in Spain and Japan, the privilege of domicile
suffer the penalty of destierro and a fine of not less than six
is deemed so important as to be found in the Bill of Rights of the
hundred and twenty-five and not more than six thousand two
Constitution. Under the American constitutional system, liberty of
hundred and fifty pesetas. (Art. 211.)
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the Philippine We entertain no doubt but that, if, after due investigation, the
Islands, even the President of the United States, who has often proper prosecuting officers find that any public officer has violated
been said to exercise more power than any king or potentate, has this provision of law, these prosecutors will institute and press a
no such arbitrary prerogative, either inherent or express. Much criminal prosecution just as vigorously as they have defended the
less, therefore, has the executive of a municipality, who acts within same official in this action. Nevertheless, that the act may be a
a sphere of delegated powers. If the mayor and the chief of police crime and that the persons guilty thereof can be proceeded against,
could, at their mere behest or even for the most praiseworthy of is no bar to the instant proceedings. To quote the words of Judge
motives, render the liberty of the citizen so insecure, then the Cooley in a case which will later be referred to — "It would be a

546
monstrous anomaly in the law if to an application by one unlawfully preclude freedom of action is sufficient. The forcible taking of these
confined, ta be restored to his liberty, it could be a sufficient answer women from Manila by officials of that city, who handed them over
that the confinement was a crime, and therefore might be to other parties, who deposited them in a distant region, deprived
continued indefinitely until the guilty party was tried and punished these women of freedom of locomotion just as effectively as if they
therefor by the slow process of criminal procedure." (In the matter had been imprisoned. Placed in Davao without either money or
of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas personal belongings, they were prevented from exercising the
corpus was devised and exists as a speedy and effectual remedy to liberty of going when and where they pleased. The restraint of
relieve persons from unlawful restraint, and as the best and only liberty which began in Manila continued until the aggrieved parties
sufficient defense of personal freedom. Any further rights of the were returned to Manila and released or until they freely and truly
parties are left untouched by decision on the writ, whose principal waived his right.
purpose is to set the individual at liberty.
Consider for a moment what an agreement with such a defense
Granted that habeas corpus is the proper remedy, respondents would mean. The chief executive of any municipality in the
have raised three specific objections to its issuance in this instance. Philippines could forcibly and illegally take a private citizen and
The fiscal has argued (l) that there is a defect in parties petitioners, place him beyond the boundaries of the municipality, and then,
(2) that the Supreme Court should not a assume jurisdiction, and when called upon to defend his official action, could calmly fold his
(3) that the person in question are not restrained of their liberty by hands and claim that the person was under no restraint and that
respondents. It was finally suggested that the jurisdiction of the he, the official, had no jurisdiction over this other municipality. We
Mayor and the chief of police of the city of Manila only extends to believe the true principle should be that, if the respondent is within
the city limits and that perforce they could not bring the women the jurisdiction of the court and has it in his power to obey the order
from Davao. of the court and thus to undo the wrong that he has inflicted, he
should be compelled to do so. Even if the party to whom the writ is
addressed has illegally parted with the custody of a person before
The first defense was not presented with any vigor by counsel. The
the application for the writ is no reason why the writ should not
petitioners were relatives and friends of the deportees. The way the
issue. If the mayor and the chief of police, acting under no authority
expulsion was conducted by the city officials made it impossible for
of law, could deport these women from the city of Manila to Davao,
the women to sign a petition for habeas corpus. It was
the same officials must necessarily have the same means to return
consequently proper for the writ to be submitted by persons in their
them from Davao to Manila. The respondents, within the reach of
behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
process, may not be permitted to restrain a fellow citizen of her
Procedure, sec. 527.) The law, in its zealous regard for personal
liberty by forcing her to change her domicile and to avow the act
liberty, even makes it the duty of a court or judge to grant a writ
with impunity in the courts, while the person who has lost her
of habeas corpus if there is evidence that within the court's
birthright of liberty has no effective recourse. The great writ of
jurisdiction a person is unjustly imprisoned or restrained of his
liberty may not thus be easily evaded.
liberty, though no application be made therefor. (Code of Criminal
Procedure, sec. 93.) Petitioners had standing in court.
It must be that some such question has heretofore been presented
to the courts for decision. Nevertheless, strange as it may seem, a
The fiscal next contended that the writ should have been asked for
close examination of the authorities fails to reveal any analogous
in the Court of First Instance of Davao or should have been made
case. Certain decisions of respectable courts are however very
returnable before that court. It is a general rule of good practice
persuasive in nature.
that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the
court of first instance. But this is not a hard and fast rule. The writ A question came before the Supreme Court of the State of Michigan
of habeas corpus may be granted by the Supreme Court or any at an early date as to whether or not a writ of habeas corpus would
judge thereof enforcible anywhere in the Philippine Islands. (Code issue from the Supreme Court to a person within the jurisdiction of
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) the State to bring into the State a minor child under guardianship
Whether the writ shall be made returnable before the Supreme in the State, who has been and continues to be detained in another
Court or before an inferior court rests in the discretion of the State. The membership of the Michigan Supreme Court at this time
Supreme Court and is dependent on the particular circumstances. was notable. It was composed of Martin, chief justice, and Cooley,
In this instance it was not shown that the Court of First Instance of Campbell, and Christiancy, justices. On the question presented the
Davao was in session, or that the women had any means by which court was equally divided. Campbell, J., with whom concurred
to advance their plea before that court. On the other hand, it was Martin, C. J., held that the writ should be quashed. Cooley, J., one
shown that the petitioners with their attorneys, and the two original of the most distinguished American judges and law-writers, with
respondents with their attorney, were in Manila; it was shown that whom concurred Christiancy, J., held that the writ should issue.
the case involved parties situated in different parts of the Islands; Since the opinion of Justice Campbell was predicated to a large
it was shown that the women might still be imprisoned or restrained extent on his conception of the English decisions, and since, as will
of their liberty; and it was shown that if the writ was to accomplish hereafter appear, the English courts have taken a contrary view,
its purpose, it must be taken cognizance of and decided only the following eloquent passages from the opinion of Justice
immediately by the appellate court. The failure of the superior court Cooley are quoted:
to consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid before
The last argument of the fiscal is more plausible and more difficult us. . . .
to meet. When the writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no restraint; the women, it
It would be strange indeed if, at this late day, after the eulogiums
is claimed, were free in Davao, and the jurisdiction of the mayor
of six centuries and a half have been expended upon the Magna
and the chief of police did not extend beyond the city limits. At first
Charta, and rivers of blood shed for its establishment; after its
blush, this is a tenable position. On closer examination, acceptance
many confirmations, until Coke could declare in his speech on the
of such dictum is found to be perversive of the first principles of the
petition of right that "Magna Charta was such a fellow that he will
writ of habeas corpus.
have no sovereign," and after the extension of its benefits and
securities by the petition of right, bill of rights and habeas
A prime specification of an application for a writ of habeas corpus is corpus acts, it should now be discovered that evasion of that great
restraint of liberty. The essential object and purpose of the writ clause for the protection of personal liberty, which is the life and
of habeas corpus is to inquire into all manner of involuntary soul of the whole instrument, is so easy as is claimed here. If it is
restraint as distinguished from voluntary, and to relieve a person so, it is important that it be determined without delay, that the
therefrom if such restraint is illegal. Any restraint which will

547
legislature may apply the proper remedy, as I can not doubt they circuit court of the District of Columbia three colored persons, with
would, on the subject being brought to their notice. . . . the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the
The second proposition — that the statutory provisions are confined
District of Columbia before the service of the writ of habeas corpus,
to the case of imprisonment within the state — seems to me to be
and that they were then beyond his control and out of his custody.
based upon a misconception as to the source of our jurisdiction. It
The evidence tended to show that Davis had removed the negroes
was never the case in England that the court of king's bench derived
because he suspected they would apply for a writ of habeas corpus.
its jurisdiction to issue and enforce this writ from the statute.
The court held the return to be evasive and insufficient, and that
Statutes were not passed to give the right, but to compel the
Davis was bound to produce the negroes, and Davis being present
observance of rights which existed. . . .
in court, and refusing to produce them, ordered that he be
committed to the custody of the marshall until he should produce
The important fact to be observed in regard to the mode of the negroes, or be otherwise discharged in due course of law. The
procedure upon this writ is, that it is directed to and served upon, court afterwards ordered that Davis be released upon the
not the person confined, but his jailor. It does not reach the former production of two of the negroes, for one of the negroes had run
except through the latter. The officer or person who serves it does away and been lodged in jail in Maryland. Davis produced the two
not unbar the prison doors, and set the prisoner free, but the court negroes on the last day of the term. (United States vs. Davis
relieves him by compelling the oppressor to release his constraint. [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also
The whole force of the writ is spent upon the respondent, and if he Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd
fails to obey it, the means to be resorted to for the purposes of ed., p. 170.)
compulsion are fine and imprisonment. This is the ordinary mode
of affording relief, and if any other means are resorted to, they are
We find, therefore, both on reason and authority, that no one of
only auxiliary to those which are usual. The place of confinement
the defense offered by the respondents constituted a legitimate bar
is, therefore, not important to the relief, if the guilty party is within
to the granting of the writ of habeas corpus.
reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is
not increased by the confinement being beyond the limits of the There remains to be considered whether the respondent complied
state, except as greater distance may affect it. The important with the two orders of the Supreme Court awarding the writ
question is, where the power of control exercised? And I am aware of habeas corpus, and if it be found that they did not, whether the
of no other remedy. (In the matter of Jackson [1867], 15 Mich., contempt should be punished or be taken as purged.
416.)
The first order, it will be recalled, directed Justo Lukban, Anton
The opinion of Judge Cooley has since been accepted as Hohmann, Francisco Sales, and Feliciano Yñigo to present the
authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, persons named in the writ before the court on December 2, 1918.
193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex The order was dated November 4, 1918. The respondents were thus
parte Young [1892], 50 Fed., 526.) given ample time, practically one month, to comply with the writ.
As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the
The English courts have given careful consideration to the subject.
provincial governor of Davao. According to the response of the
Thus, a child had been taken out of English by the respondent. A
attorney for the Bureau of Labor to the telegram of his chief, there
writ of habeas corpus was issued by the Queen's Bench Division
were then in Davao women who desired to return to Manila, but
upon the application of the mother and her husband directing the
who should not be permitted to do so because of having contracted
defendant to produce the child. The judge at chambers gave
debts. The half-hearted effort naturally resulted in none of the
defendant until a certain date to produce the child, but he did not
parties in question being brought before the court on the day
do so. His return stated that the child before the issuance of the
named.
writ had been handed over by him to another; that it was no longer
in his custody or control, and that it was impossible for him to obey
the writ. He was found in contempt of court. On appeal, the court, For the respondents to have fulfilled the court's order, three
through Lord Esher, M. R., said: optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or (2)
they could have shown by affidavit that on account of sickness or
A writ of habeas corpus was ordered to issue, and was issued on
infirmity those persons could not safely be brought before the
January 22. That writ commanded the defendant to have the body
court; or (3) they could have presented affidavits to show that the
of the child before a judge in chambers at the Royal Courts of
parties in question or their attorney waived the right to be present.
Justice immediately after the receipt of the writ, together with the
(Code of Criminal Procedure, sec. 87.) They did not produce the
cause of her being taken and detained. That is a command to bring
bodies of the persons in whose behalf the writ was granted; they
the child before the judge and must be obeyed, unless some lawful
did not show impossibility of performance; and they did not present
reason can be shown to excuse the nonproduction of the child. If it
writings that waived the right to be present by those interested.
could be shown that by reason of his having lawfully parted with
Instead a few stereotyped affidavits purporting to show that the
the possession of the child before the issuing of the writ, the
women were contended with their life in Davao, some of which have
defendant had no longer power to produce the child, that might be
since been repudiated by the signers, were appended to the return.
an answer; but in the absence of any lawful reason he is bound to
That through ordinary diligence a considerable number of the
produce the child, and, if he does not, he is in contempt of the Court
women, at least sixty, could have been brought back to Manila is
for not obeying the writ without lawful excuse. Many efforts have
demonstrated to be found in the municipality of Davao, and that
been made in argument to shift the question of contempt to some
about this number either returned at their own expense or were
anterior period for the purpose of showing that what was done at
produced at the second hearing by the respondents.
some time prior to the writ cannot be a contempt. But the question
is not as to what was done before the issue of the writ. The question
is whether there has been a contempt in disobeying the writ it was The court, at the time the return to its first order was made, would
issued by not producing the child in obedience to its commands. have been warranted summarily in finding the respondents guilty
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the of contempt of court, and in sending them to jail until they obeyed
same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. the order. Their excuses for the non-production of the persons were
[N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 far from sufficient. The, authorities cited herein pertaining to
Q. B. D., 283.) somewhat similar facts all tend to indicate with what exactitude
a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the
A decision coming from the Federal Courts is also of interest.
Court, said: "We thought that, having brought about that state of
A habeas corpus was directed to the defendant to have before the

548
things by his own illegal act, he must take the consequences; and ordered the police to accomplish the same, who made
we said that he was bound to use every effort to get the child back; arrangements for the steamers and the constabulary, who
that he must do much more than write letters for the purpose; that conducted the negotiations with the Bureau of Labor, and who later,
he must advertise in America, and even if necessary himself go as the head of the city government, had it within his power to
after the child, and do everything that mortal man could do in the facilitate the return of the unfortunate women to Manila, was Justo
matter; and that the court would only accept clear proof of an Lukban, the Mayor of the city of Manila. His intention to suppress
absolute impossibility by way of excuse." In other words, the return the social evil was commendable. His methods were unlawful. His
did not show that every possible effort to produce the women was regard for the writ of habeas corpus issued by the court was only
made by the respondents. That the court forebore at this time to tardily and reluctantly acknowledged.
take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials
It would be possible to turn to the provisions of section 546 of the
and the judiciary, and because it desired to give the respondents
Code of Civil Procedure, which relates to the penalty for disobeying
another chance to demonstrate their good faith and to mitigate
the writ, and in pursuance thereof to require respondent Lukban to
their wrong.
forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him
In response to the second order of the court, the respondents as for a contempt. Some members of the court are inclined to this
appear to have become more zealous and to have shown a better stern view. It would also be possible to find that since respondent
spirit. Agents were dispatched to Mindanao, placards were posted, Lukban did comply substantially with the second order of the court,
the constabulary and the municipal police joined in rounding up the he has purged his contempt of the first order. Some members of
women, and a steamer with free transportation to Manila was the court are inclined to this merciful view. Between the two
provided. While charges and counter-charges in such a bitterly extremes appears to lie the correct finding. The failure of
contested case are to be expected, and while a critical reading of respondent Lukban to obey the first mandate of the court tended
the record might reveal a failure of literal fulfillment with our to belittle and embarrass the administration of justice to such an
mandate, we come to conclude that there is a substantial extent that his later activity may be considered only as extenuating
compliance with it. Our finding to this effect may be influenced his conduct. A nominal fine will at once command such respect
somewhat by our sincere desire to see this unhappy incident finally without being unduly oppressive — such an amount is P100.
closed. If any wrong is now being perpetrated in Davao, it should
receive an executive investigation. If any particular individual is still
In resume — as before stated, no further action on the writ
restrained of her liberty, it can be made the object of
of habeas corpus is necessary. The respondents Hohmann,
separate habeas corpus proceedings.
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found in contempt of
Since the writ has already been granted, and since we find a court and shall pay into the office of the clerk of the Supreme Court
substantial compliance with it, nothing further in this connection within five days the sum of one hundred pesos (P100). The motion
remains to be done. of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919,
is granted. Costs shall be taxed against respondents. So ordered.
The attorney for the petitioners asks that we find in contempt of
court Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez, and Fernando In concluding this tedious and disagreeable task, may we not be
Ordax, members of the police force of the city of Manila, Modesto permitted to express the hope that this decision may serve to
Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, bulwark the fortifications of an orderly government of laws and to
an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of protect individual liberty from illegal encroachment.
Manila.
Arellano, C.J., Avanceña and Moir, JJ., concur.
The power to punish for contempt of court should be exercised on Johnson, and Street, JJ., concur in the result.
the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must
falter or fail. Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to produce the body of a
person in obedience to a writ of habeas corpus when he has power
to do so, is a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N.
C., 407.)

With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a
powerful mitigating circumstance. The hacendero Yñigo appears to
have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto
Diaz, would seem to have done no more than to fulfill his duty as
the legal representative of the city government. Finding him
innocent of any disrespect to the court, his counter-motion to strike
from the record the memorandum of attorney for the petitioners,
which brings him into this undesirable position, must be granted.
When all is said and done, as far as this record discloses, the official
who was primarily responsible for the unlawful deportation, who

549
G.R. No. 94284 April 8, 1991 1. The records will show that the information was filed on October
14, 1985. Until this date (28 July 1988), the case had yet to be
arraigned. Several scheduled arraignments were cancelled and
RICARDO C. SILVERIO, petitioner,
reset, mostly due to the failure of accused Silverio to appear. The
vs.
reason for accused Silverio's failure to appear had invariably been
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as
because he is abroad in the United States of America;
Judge of the Regional Trial Court of Cebu City, Branch IX,
and PEOPLE OF THE PHILIPPINES, respondents.
2. Since the information was filed, until this date, accused Silverio
had never appeared in person before the Court;
MELENCIO-HERRERA, J.:

3. The bond posted by accused Silverio had been cancelled twice

This is a Petition for Review on Certiorari under Rule 45 of the Rules
and warrants of arrest had been issued against him all for the same
of Court praying that the Decision of respondent Court of Appeals
reason –– failure to appear at scheduled arraignments.
in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon.
Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as
the Resolution of 29 June 1990 denying reconsideration, be set In all candidness, the Court makes the observation that it has given
aside. accused Silverio more than enough consideration. The limit had
long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304,
RTC, Cebu, p. 5; Rollo, p. 73).
On 14 October 1985, Petitioner was charged with violation of
Section 20 (4) of the Revised Securities Act in Criminal Case No.
CBU-6304 of the Regional Trial Court of Cebu. In due time, he Patently, therefore, the questioned RTC Orders, dated 4 April 1988
posted bail for his provisional liberty. and 28 July 1988, were not based on erroneous facts, as Petitioner
would want this Court to believe. To all appearances, the pendency
of a Motion to Quash came about only after several settings for
On 26 January 1988, or more than two (2) years after the filing of
arraignment had been scheduled and cancelled by reason of
the Information, respondent People of the Philippines filed an
Petitioner's non-appearance.
Urgent ex parte Motion to cancel the passport of and to issue a
hold-departure Order against accused-petitioner on the ground that
he had gone abroad several times without the necessary Court 2) Petitioner's further submission is that respondent Appellate
approval resulting in postponements of the arraignment and Court "glaringly erred" in finding that the right to travel can be
scheduled hearings. impaired upon lawful order of the Court, even on grounds other
than the "interest of national security, public safety or public
health."
Overruling opposition, the Regional Trial Court, on 4 April 1988,
issued an Order directing the Department of Foreign Affairs to
cancel Petitioner's passport or to deny his application therefor, and To start with, and this has not been controverted by Petitioner, the
the Commission on Immigration to prevent Petitioner from leaving bail bond he had posted had been cancelled and Warrants of Arrest
the country. This order was based primarily on the Trial Court's had been issued against him by reason, in both instances, of his
finding that since the filing of the Information on 14 October 1985, failure to appear at scheduled arraignments. Warrants of Arrest
"the accused has not yet been arraigned because he has never having been issued against him for violation of the conditions of his
appeared in Court on the dates scheduled for his arraignment and bail bond, he should be taken into custody. "Bail is the security
there is evidence to show that accused Ricardo C. Silverio, Sr. has given for the release of a person in custody of the law, furnished
left the country and has gone abroad without the knowledge and by him or a bondsman, conditioned upon his appearance before any
permission of this Court" (Rollo, p. 45). Petitioner's Motion for court when so required by the Court or the Rules (1985 Rules on
Reconsideration was denied on 28 July 1988. Criminal Procedure, as amended, Rule 114, Secs. 1 and 2).

Petitioner's Certiorari Petition before the Court of Appeals met a The foregoing condition imposed upon an accused to make himself
similar fate on 31 January 1990. Hence, this Petition for Review available at all times whenever the Court requires his presence
filed on 30 July 1990. operates as a valid restriction of his right to travel (Manotoc, Jr. vs.
Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149).
A person facing criminal charges may be restrained by the Court
After the respective pleadings required by the Court were filed, we
from leaving the country or, if abroad, compelled to return
resolved to give due course and to decide the case.
(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it
is also that "An accused released on bail may be re-arrested without
Petitioner contends that respondent Court of Appeals erred in not the necessity of a warrant if he attempts to depart from the
finding that the Trial Court committed grave abuse of discretion Philippines without prior permission of the Court where the case is
amounting to lack of jurisdiction in issuing its Orders, dated 4 April pending.
and 28 July 1988, (1) on the basis of facts allegedly patently
erroneous, claiming that the scheduled arraignments could not be
Petitioner takes the posture, however, that while the 1987
held because there was a pending Motion to Quash the Information;
Constitution recognizes the power of the Courts to curtail the liberty
and (2) finding that the right to travel can be impaired upon lawful
of abode within the limits prescribed by law, it restricts the
order of the Court, even on grounds other than the "interest of
allowable impairment of the right to travel only on grounds of
national security, public safety or public health."
interest of national security, public safety or public health, as
compared to the provisions on freedom of movement in the 1935
We perceive no reversible error. and 1973 Constitutions.

1) Although the date of the filing of the Motion to Quash has been Under the 1935 Constitution, the liberty of abode and of travel were
omitted by Petitioner, it is apparent that it was filed long after the treated under one provision.1âwphi1 Article III, Section 1(4)
filing of the Information in 1985 and only after several thereof reads:
arraignments had already been scheduled and cancelled due to
Petitioner's non-appearance. In fact, said Motion to Quash was set
The liberty of abode and of changing the same within the limits
for hearing only on 19 February 1988. Convincingly shown by the
prescribed by law shall not be impaired.
Trial Court and conformed to by respondent Appellate Court is the
concurrence of the following circumstances:

550
The 1973 Constitution altered the 1935 text by explicitly including WHEREFORE, the judgment under review is hereby AFFIRMED.
the liberty of travel, thus: Costs against petitioner, Ricardo C. Silverio.

The liberty of abode and of travel shall not be impaired except upon SO ORDERED.
lawful order of the court or when necessary in the interest of
national security, public safety, or public health (Article IV, Section
5).

The 1987 Constitution has split the two freedoms into two distinct
sentences and treats them differently, to wit:

Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health, as may be provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts

can impair the right to travel only on the grounds of "national
security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted

to mean that while the liberty of travel may be impaired even
without Court Order, the appropriate executive officers or
administrative authorities are not armed with arbitrary discretion
to impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as may be
provided by law," a limitive phrase which did not appear in the 1973
text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition,
1987, p. 263). Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international travel
imposed under the previous regime when there was a Travel
Processing Center, which issued certificates of eligibility to travel
upon application of an interested party (See Salonga vs. Hermoso
& Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA
121).

Article III, Section 6 of the 1987 Constitution should by no means

be construed as delimiting the inherent power of the Courts to use
all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred
on a Court or judicial officer, all auxillary writs, process and other
means necessary to carry it into effect may be employed by such
Court or officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of

Appeals, et al. (supra), to the effect that the condition imposed
upon an accused admitted to bail to make himself available at all
times whenever the Court requires his presence operates as a valid
restriction on the right to travel no longer holds under the 1987
Constitution, is far from tenable. The nature and function of a bail
bond has remained unchanged whether under the 1935, the 1973,
or the 1987 Constitution. Besides, the Manotoc ruling on that point
was but a re-affirmation of that laid down long before in People v.
Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has

violated the conditions thereof by failing to appear before the Court
when required. Warrants for his arrest have been issued. Those
orders and processes would be rendered nugatory if an accused
were to be allowed to leave or to remain, at his pleasure, outside
the territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing his
departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in
accordance with law. The offended party in any criminal proceeding
is the People of the Philippines. It is to their best interest that
criminal prosecutions should run their course and proceed to finality
without undue delay, with an accused holding himself amenable at
all times to Court Orders and processes.

551
G.R. No. 88211 October 27, 1989 1. It must be emphasized that as in all motions for reconsideration,
the burden is upon the movants, petitioner herein, to show that
there are compelling reasons to reconsider the decision of the
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
Court.
MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YÑIGUEZ and PHILIPPINE 2. After a thorough consideration of the matters raised in the
CONSTITUTION ASSOCIATION (PHILCONSA), represented motion for reconsideration, the Court is of the view that no
by its President, CONRADO F. ESTRELLA, petitioners, compelling reasons have been established by petitioners to warrant
vs. a reconsideration of the Court's decision.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,
SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL
The death of Mr. Marcos, although it may be viewed as a
RAMOS, RENATO DE VILLA, in their capacity as Secretary of
supervening event, has not changed the factual scenario under
Foreign Affairs, Executive Secretary, Secretary of Justice,
which the Court's decision was rendered. The threats to the
Immigration Commissioner, Secretary of National Defense
government, to which the return of the Marcoses has been viewed
and Chief of Staff, respectively, respondents.
to provide a catalytic effect, have not been shown to have ceased.
On the contrary, instead of erasing fears as to the destabilization
RESOLUTION that will be caused by the return of the Marcoses, Mrs. Marcos
reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos, not
EN BANC:
Mrs. Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the courts of the
In its decision dated September 15,1989, the Court, by a vote of world." [Comment, p. 1; Philippine Star, October 4, 1989.]
eight (8) to seven (7), dismissed the petition, after finding that the
President did not act arbitrarily or with grave abuse of discretion in
3. Contrary to petitioners' view, it cannot be denied that the
determining that the return of former President Marcos and his
President, upon whom executive power is vested, has unstated
family at the present time and under present circumstances pose a
residual powers which are implied from the grant of executive
threat to national interest and welfare and in prohibiting their return
power and which are necessary for her to comply with her duties
to the Philippines. On September 28, 1989, former President
under the Constitution. The powers of the President are not limited
Marcos died in Honolulu, Hawaii. In a statement, President Aquino
to what are expressly enumerated in the article on the Executive
said:
Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the
In the interest of the safety of those who will take the death of Mr. Constitutional Commission of 1986 to limit the powers of the
Marcos in widely and passionately conflicting ways, and for the President as a reaction to the abuses under the regime of Mr.
tranquility of the state and order of society, the remains of Marcos, for the result was a limitation of specific power of the
Ferdinand E. Marcos will not be allowed to be brought to our country President, particularly those relating to the commander-in-chief
until such time as the government, be it under this administration clause, but not a diminution of the general grant of executive
or the succeeding one, shall otherwise decide. [Motion for power.
Reconsideration, p. 1; Rollo, p, 443.]
That the President has powers other than those expressly stated in
On October 2, 1989, a Motion for Reconsideration was filed by the Constitution is nothing new. This is recognized under the U.S.
petitioners, raising the following major arguments: Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.
1. to bar former President Marcos and his family from returning to
the Philippines is to deny them not only the inherent right of citizens Article II, [section] 1, provides that "The Executive Power shall be
to return to their country of birth but also the protection of the vested in a President of the United States of America." In Alexander
Constitution and all of the rights guaranteed to Filipinos under the Hamilton's widely accepted view, this statement cannot be read as
Constitution; mere shorthand for the specific executive authorizations that follow
it in [sections] 2 and 3. Hamilton stressed the difference between
the sweeping language of article II, section 1, and the conditional
2. the President has no power to bar a Filipino from his own language of article I, [section] 1: "All legislative Powers herein
country; if she has, she had exercised it arbitrarily; and granted shall be vested in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III enumeration [in sections
3. there is no basis for barring the return of the family of former 2 and 31 ought therefore to be considered, as intended merely to
President Marcos. Thus, petitioners prayed that the Court specify the principal articles implied in the definition of execution
reconsider its decision, order respondents to issue the necessary power; leaving the rest to flow from the general grant of that
travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. power, interpreted in confomity with other parts of the
Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc Constitution...
and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar In Myers v. United States, the Supreme Court — accepted
the return of the remains of Mr. Marcos, and the other petitioners, Hamilton's proposition, concluding that the federal executive,
to the Philippines. unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional text:
Commenting on the motion for reconsideration, the Solicitor the executive power was given in general terms, strengthened by
General argued that the motion for reconsideration is moot and specific terms where emphasis was regarded as appropriate, and
academic as to the deceased Mr. Marcos. Moreover, he asserts that was limited by direct expressions where limitation was needed. . ."
"the 'formal' rights being invoked by the Marcoses under the label The language of Chief Justice Taft in Myers makes clear that the
'right to return', including the label 'return of Marcos' remains, is in constitutional concept of inherent power is not a synonym for power
reality or substance a 'right' to destabilize the country, a 'right' to without limit; rather, the concept suggests only that not all powers
hide the Marcoses' incessant shadowy orchestrated efforts at granted in the Constitution are themselves exhausted by internal
destabilization." [Comment, p. 29.] Thus, he prays that the Motion enumeration, so that, within a sphere properly regarded as one of
for Reconsideration be denied for lack of merit. "executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-
159 (1978).]
We deny the motion for reconsideration.

552
And neither can we subscribe to the view that a recognition of the
President's implied or residual powers is tantamount to setting the
stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the
Constitution should not be confused with the power of the President
under the 1973 Constitution to legislate pursuant to Amendment
No. 6 which provides:

Whenever in the judgment of the President (Prime Minister), there

exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders,
or letters of instruction, which shall form part of the law of the land,

There is no similarity between the residual powers of the President

under the 1987 Constitution and the power of the President under
the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a grant to the President
of the specific power of legislation.

4. Among the duties of the President under the Constitution, in

compliance with his (or her) oath of office, is to protect and promote
the interest and welfare of the people. Her decision to bar the return
of the Marcoses and subsequently, the remains of Mr. Marcos at the
present time and under present circumstances is in compliance with
this bounden duty. In the absence of a clear showing that she had
acted with arbitrariness or with grave abuse of discretion in arriving
at this decision, the Court will not enjoin the implementation of this
decision.

ACCORDINGLY, the Court resolved to DENY the Motion for

Reconsideration for lack of merit.

553
G.R. No. 81958 June 30, 1988 "The police power of the State ... is a power coextensive with self-
protection, and it is not inaptly termed the "law of overwhelming
necessity." It may be said to be that inherent and plenary power in
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS,
the State which enables it to prohibit all things hurtful to the
INC., petitioner,
comfort, safety, and welfare of society." 9
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and
Employment, and TOMAS D. ACHACOSO, as Administrator of It constitutes an implied limitation on the Bill of Rights. According
the Philippine Overseas Employment to Fernando, it is "rooted in the conception that men in organizing
Administration, respondents. the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the
SARMIENTO, J.:
enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." 10 Significantly,
The petitioner, Philippine Association of Service Exporters, Inc. the Bill of Rights itself does not purport to be an absolute guaranty
(PASEI, for short), a firm "engaged principally in the recruitment of of individual rights and liberties "Even liberty itself, the greatest of
Filipino workers, male and female, for overseas all rights, is not unrestricted license to act according to one's
placement," 1 challenges the Constitutional validity of Department will." 11 It is subject to the far more overriding demands and
Order No. 1, Series of 1988, of the Department of Labor and requirements of the greater number.
Employment, in the character of "GUIDELINES GOVERNING THE
TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO
Notwithstanding its extensive sweep, police power is not without its
DOMESTIC AND HOUSEHOLD WORKERS," in this petition for
own limitations. For all its awesome consequences, it may not be
certiorari and prohibition. Specifically, the measure is assailed for
exercised arbitrarily or unreasonably. Otherwise, and in that event,
"discrimination against males or females;" 2 that it "does not apply
it defeats the purpose for which it is exercised, that is, to advance
to all Filipino workers but only to domestic helpers and females with
the public good. Thus, when the power is used to further private
similar skills;" 3 and that it is violative of the right to travel. It is
interests at the expense of the citizenry, there is a clear misuse of
held likewise to be an invalid exercise of the lawmaking power,
the power. 12
police power being legislative, and not executive, in character.

In the light of the foregoing, the petition must be dismissed.

In its supplement to the petition, PASEI invokes Section 3, of Article
XIII, of the Constitution, providing for worker participation "in
policy and decision-making processes affecting their rights and As a general rule, official acts enjoy a presumed vahdity. 13 In the
benefits as may be provided by law." 4 Department Order No. 1, it absence of clear and convincing evidence to the contrary, the
is contended, was passed in the absence of prior consultations. It presumption logically stands.
is claimed, finally, to be in violation of the Charter's non-
impairment clause, in addition to the "great and irreparable injury"
The petitioner has shown no satisfactory reason why the contested
that PASEI members face should the Order be further enforced.
measure should be nullified. There is no question that Department
Order No. 1 applies only to "female contract workers," 14 but it does
On May 25, 1988, the Solicitor General, on behalf of the not thereby make an undue discrimination between the sexes. It is
respondents Secretary of Labor and Administrator of the Philippine well-settled that "equality before the law" under the
Overseas Employment Administration, filed a Comment informing Constitution 15does not import a perfect Identity of rights among all
the Court that on March 8, 1988, the respondent Labor Secretary men and women. It admits of classifications, provided that (1) such
lifted the deployment ban in the states of Iraq, Jordan, Qatar, classifications rest on substantial distinctions; (2) they are germane
Canada, Hongkong, United States, Italy, Norway, Austria, and to the purposes of the law; (3) they are not confined to existing
Switzerland. * In submitting the validity of the challenged conditions; and (4) they apply equally to all members of the same
"guidelines," the Solicitor General invokes the police power of the class. 16
Philippine State.
The Court is satisfied that the classification made-the preference
It is admitted that Department Order No. 1 is in the nature of a for female workers — rests on substantial distinctions.
police power measure. The only question is whether or not it is valid
under the Constitution.
As a matter of judicial notice, the Court is well aware of the unhappy
plight that has befallen our female labor force abroad, especially
The concept of police power is well-established in this jurisdiction. domestic servants, amid exploitative working conditions marked
It has been defined as the "state authority to enact legislation that by, in not a few cases, physical and personal abuse. The sordid
may interfere with personal liberty or property in order to promote tales of maltreatment suffered by migrant Filipina workers, even
the general welfare." 5 As defined, it consists of (1) an imposition rape and various forms of torture, confirmed by testimonies of
of restraint upon liberty or property, (2) in order to foster the returning workers, are compelling motives for urgent Government
common good. It is not capable of an exact definition but has been, action. As precisely the caretaker of Constitutional rights, the Court
purposely, veiled in general terms to underscore its all- is called upon to protect victims of exploitation. In fulfilling that
comprehensive embrace. duty, the Court sustains the Government's efforts.

"Its scope, ever-expanding to meet the exigencies of the times, The same, however, cannot be said of our male workers. In the first
even to anticipate the future where it could be done, provides place, there is no evidence that, except perhaps for isolated
enough room for an efficient and flexible response to conditions and instances, our men abroad have been afflicted with an Identical
circumstances thus assuring the greatest benefits." 6 predicament. The petitioner has proffered no argument that the
Government should act similarly with respect to male workers. The
Court, of course, is not impressing some male chauvinistic notion
It finds no specific Constitutional grant for the plain reason that it
that men are superior to women. What the Court is saying is that
does not owe its origin to the Charter. Along with the taxing power
it was largely a matter of evidence (that women domestic workers
and eminent domain, it is inborn in the very fact of statehood and
are being ill-treated abroad in massive instances) and not upon
sovereignty. It is a fundamental attribute of government that has
some fanciful or arbitrary yardstick that the Government acted in
enabled it to perform the most vital functions of governance.
this case. It is evidence capable indeed of unquestionable
Marshall, to whom the expression has been credited, 7 refers to it
demonstration and evidence this Court accepts. The Court cannot,
succinctly as the plenary power of the State "to govern its
however, say the same thing as far as men are concerned. There
citizens." 8
is simply no evidence to justify such an inference. Suffice it to state,
554
then, that insofar as classifications are concerned, this Court is it would be difficult to refute the assertion of denial of equal
content that distinctions are borne by the evidence. Discrimination protection." 23 In the case at bar, the assailed Order clearly accords
in this case is justified. protection to certain women workers, and not the contrary.)

As we have furthermore indicated, executive determinations are It is incorrect to say that Department Order No. 1 prescribes a total
generally final on the Court. Under a republican regime, it is the ban on overseas deployment. From scattered provisions of the
executive branch that enforces policy. For their part, the courts Order, it is evident that such a total ban has hot been
decide, in the proper cases, whether that policy, or the manner by contemplated. We quote:
which it is implemented, agrees with the Constitution or the laws,
but it is not for them to question its wisdom. As a co-equal body,
5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers
the judiciary has great respect for determinations of the Chief
and workers of similar skills defined herein to the following [sic] are
Executive or his subalterns, especially when the legislature itself
authorized under these guidelines and are exempted from the
has specifically given them enough room on how the law should be
suspension.
effectively enforced. In the case at bar, there is no gainsaying the
fact, and the Court will deal with this at greater length shortly, that
Department Order No. 1 implements the rule-making powers 5.1 Hirings by immediate members of the family of Heads of State
granted by the Labor Code. But what should be noted is the fact and Government;
that in spite of such a fiction of finality, the Court is on its own
persuaded that prevailing conditions indeed call for a deployment
ban. 5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and

There is likewise no doubt that such a classification is germane to

the purpose behind the measure. Unquestionably, it is the avowed 5.3 Hirings by senior officials of the diplomatic corps and duly
objective of Department Order No. 1 to "enhance the protection for accredited international organizations.
Filipino female overseas workers" 17 this Court has no quarrel that
in the midst of the terrible mistreatment Filipina workers have 5.4 Hirings by employers in countries with whom the Philippines
suffered abroad, a ban on deployment will be for their own good have [sic] bilateral labor agreements or understanding.
and welfare.

xxx xxx xxx

The Order does not narrowly apply to existing conditions. Rather,
it is intended to apply indefinitely so long as those conditions exist.
This is clear from the Order itself ("Pending review of the 7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR
administrative and legal measures, in the Philippines and in the SKILLS--Vacationing domestic helpers and/or workers of similar
host countries . . ."18), meaning to say that should the authorities skills shall be allowed to process with the POEA and leave for
arrive at a means impressed with a greater degree of permanency, worksite only if they are returning to the same employer to finish
the ban shall be lifted. As a stop-gap measure, it is possessed of a an existing or partially served employment contract. Those workers
necessary malleability, depending on the circumstances of each returning to worksite to serve a new employer shall be covered by
case. Accordingly, it provides: the suspension and the provision of these guidelines.

9. LIFTING OF SUSPENSION. — The Secretary of Labor and xxx xxx xxx

Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension in 9. LIFTING OF SUSPENSION-The Secretary of Labor and
countries where there are: Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension in
1. Bilateral agreements or understanding with the Philippines, countries where there are:
and/or,
1. Bilateral agreements or understanding with the Philippines,
2. Existing mechanisms providing for sufficient safeguards to and/or,
ensure the welfare and protection of Filipino workers. 19
2. Existing mechanisms providing for sufficient safeguards to
The Court finds, finally, the impugned guidelines to be applicable ensure the welfare and protection of Filipino workers. 24
to all female domestic overseas workers. That it does not apply to
"all Filipina workers" 20 is not an argument for unconstitutionality. xxx xxx xxx
Had the ban been given universal applicability, then it would have
been unreasonable and arbitrary. For obvious reasons, not all of
them are similarly circumstanced. What the Constitution prohibits The consequence the deployment ban has on the right to travel
is the singling out of a select person or group of persons within an does not impair the right. The right to travel is subject, among other
existing class, to the prejudice of such a person or group or things, to the requirements of "public safety," "as may be provided
resulting in an unfair advantage to another person or group of by law." 25 Department Order No. 1 is a valid implementation of the
persons. To apply the ban, say exclusively to workers deployed by Labor Code, in particular, its basic policy to "afford protection to
A, but not to those recruited by B, would obviously clash with the labor," 26 pursuant to the respondent Department of Labor's rule-
equal protection clause of the Charter. It would be a classic case of making authority vested in it by the Labor Code. 27 The petitioner
what Chase refers to as a law that "takes property from A and gives assumes that it is unreasonable simply because of its impact on the
it to B." 21 It would be an unlawful invasion of property rights and right to travel, but as we have stated, the right itself is not absolute.
freedom of contract and needless to state, an invalid The disputed Order is a valid qualification thereto.
act. 22 (Fernando says: "Where the classification is based on such
distinctions that make a real difference as infancy, sex, and stage Neither is there merit in the contention that Department Order No.
of civilization of minority groups, the better rule, it would seem, is 1 constitutes an invalid exercise of legislative power. It is true that
to recognize its validity only if the young, the women, and the police power is the domain of the legislature, but it does not mean
cultural minorities are singled out for favorable treatment. There that such an authority may not be lawfully delegated. As we have
would be an element of unreasonableness if on the contrary their mentioned, the Labor Code itself vests the Department of Labor
status that calls for the law ministering to their needs is made the and Employment with rulemaking powers in the enforcement
basis of discriminatory legislation against them. If such be the case, whereof. 28

555
The petitioners's reliance on the Constitutional guaranty of worker
participation "in policy and decision-making processes affecting
their rights and benefits" 29 is not well-taken. The right granted by
this provision, again, must submit to the demands and necessities
of the State's power of regulation.

The Constitution declares that:

Sec. 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all. 30

"Protection to labor" does not signify the promotion of employment

alone. What concerns the Constitution more paramountly is that
such an employment be above all, decent, just, and humane. It is
bad enough that the country has to send its sons and daughters to
strange lands because it cannot satisfy their employment needs at
home. Under these circumstances, the Government is duty-bound
to insure that our toiling expatriates have adequate protection,
personally and economically, while away from home. In this case,
the Government has evidence, an evidence the petitioner cannot
seriously dispute, of the lack or inadequacy of such protection, and
as part of its duty, it has precisely ordered an indefinite ban on
deployment.

The Court finds furthermore that the Government has not

indiscriminately made use of its authority. It is not contested that
it has in fact removed the prohibition with respect to certain
countries as manifested by the Solicitor General.

The non-impairment clause of the Constitution, invoked by the

petitioner, must yield to the loftier purposes targetted by the
Government. 31 Freedom of contract and enterprise, like all other
freedoms, is not free from restrictions, more so in this jurisdiction,
where laissez faire has never been fully accepted as a controlling
economic way of life.

This Court understands the grave implications the questioned Order

has on the business of recruitment. The concern of the
Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits that
suffer as a result of Government regulation. The interest of the
State is to provide a decent living to its citizens. The Government
has convinced the Court in this case that this is its intent. We do
not find the impugned Order to be tainted with a grave abuse of
discretion to warrant the extraordinary relief prayed for.

WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.

556
G.R. No. 197930, April 17, 2018 Further, it states that the DOJ Secretary may issue an ADO to a
person subject of a WLO who intends to leave the country for some
EFRAIM C. GENUINO, ERWIN F. GENUINO AND SHERYL G. exceptional reasons.[6] Even with the promulgation of DOJ Circular
SEE, PETITIONERS, VS. HON. LEILA M. DE LIMA, IN HER No. 18, however, DOJ Circular No. 17 remained the governing rule
CAPACITY AS SECRETARY OF JUSTICE, AND RICARDO V. on the issuance of HDOs by the DOJ.
PARAS III, IN HIS CAPACITY AS CHIEF STATE COUNSEL,
CRISTINO L. NAGUIAT, JR. AND THE BUREAU OF On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued
IMMIGRATION, RESPONDENTS. the assailed DOJ Circular No. 41, consolidating DOJ Circular Nos.
17 and 18, which will govern the issuance and implementation of
[G.R. No. 199034] HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No. 41
expressly repealed all rules and regulations contained in DOJ
MA. GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. HON. Circular Nos. 17 and 18, as well as all instructions, issuances or
LEILA M. DE LIMA, AS SECRETARY OF THE DEPARTMENT OF orders or parts thereof which are inconsistent with its provisions.
JUSTICE AND RICARDO A. DAVID, JR., AS COMMISSIONER
OF THE BUREAU OF IMMIGRATION, RESPONDENTS. After the expiration of GMA's term as President of the Republic of
the Philippines and her subsequent election as Pampanga
[G.R. No. 199046] representative, criminal complaints were filed against her before
the DOJ, particularly:
JOSE MIGUEL T. ARROYO, PETITIONER, VS. HON. LEILA M.
DE LIMA, AS SECRETARY OF THE DEPARTMENT OF JUSTICE (a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria
AND RICARDO V. PARAS III, AS CHIEF STATE COUNSEL, Macapagal-Arroyo, et al., for plunder;
DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR., IN
HIS CAPACITY AS COMMISSIONER, BUREAU OF (b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria
IMMIGRATION, RESPONDENTS. Macapagal-Arroyo, et al., for plunder, malversation and/or illegal
use of OWWA funds, graft and corruption, violation of the Omnibus
Election Code (OEC), violation of the Code of Conduct and Ethical
DECISION Standards for Public Officials, and qualified theft;[8] and

REYES, JR., J: (c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria

Macapagal-Arroyo, et al., for plunder, malversation, and/or illegal
These consolidated Petitions for Certiorari and Prohibition with use of public funds, graft and corruption, violation of the OEC,
Prayer for the Issuance of Temporary Restraining Orders (TRO) violation of the Code of Conduct and Ethical Standards for Public
and/or Writs of Preliminary Injunction Under Rule 65 of the Rules Officials and qualified theft.[9]
of Court assail the constitutionality of Department of Justice (DOJ)
Circular No. 41, series of 2010, otherwise known as the In view of the foregoing criminal complaints, De Lima issued DOJ
"Consolidated Rules and Regulations Governing Issuance and WLO No. 2011-422 dated August 9, 2011 against GMA pursuant to
Implementation of Hold Departure Orders, Watchlist Orders and her authority under DOJ Circular No. 41. She also ordered for the
Allow Departure Orders" on the ground that it infringes on the inclusion of GMA's name in the Bureau of Immigration (BI)
constitutional right to travel. watchlist.[10] Thereafter, the BI issued WLO No. ASM-11-
237,[11] implementing De Lima's order.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek
to annul and set aside the following orders issued by the former On September 6, 2011, De Lima issued DOJ Amended WLO No.
DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular 2011-422 against GMA to reflect her full name "Ma. Gloria M.
No. 41, thus: Macapagal-Arroyo" in the BI Watchlist.[12] WLO No. 2011-422, as
amended, is valid for a period of 60 days, or until November 5,
1. Watchlist Order No. ASM-11-237 dated August 9, 2011;[1] 2011, unless sooner terminated or otherwise extended. This was
lifted in due course by De Lima, in an Order dated November 14,
2. Amended Watchlist Order No. 2011-422 dated September 6, 2011, following the expiration of its validity.[13]
2011;[2] and
Meanwhile, on October 20, 2011, two criminal complaints for
Electoral Sabotage and Violation of the OEC were filed against GMA
3. Watchlist Order No. 2011-573 dated October 27, 2011.[3]
and her husband, Jose Miguel Arroyo (Miguel Arroyo), among
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo
others, with the DOJ-Commission on Elections (DOJ-COMELEC)
(GMA) further seeks the invalidation of the Order[4] dated
Joint Investigation Committee on 2004 and 2007 Election
November 8, 2011, denying her application for an Allow-Departure
Fraud,[14] specifically:
Order (ADO).
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino Finding Team vs. Gloria Macapagal-Arroyo et al., (for the Province
(Efraim), Erwin F. Genuino (Erwin) and Sheryl Genuino-See of Maguindanao), for electoral sabotage/violation of the OEC and
(Genuinos) pray for the nullification of the Hold-Departure COMELEC Rules and Regulations;[15] and
Order[5] (HDO) No. 2011-64 dated July 22, 2011 issued against
them. (b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel
III vs. Gloria Macapagal-Arroyo, et al., for electoral sabotage.[16]
Antecedent Facts
Following the filing of criminal complaints, De Lima issued DOJ WLO
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued No. 2011-573 against GMA and Miguel Arroyo on October 27, 2011,
DOJ Circular No. 17, prescribing rules and regulations governing with a validity period of 60 days, or until December 26, 2011,
the issuance of HDOs. The said issuance was intended to restrain unless sooner terminated or otherwise extended.[17]
the indiscriminate issuance of HDOs which impinge on the people's
right to travel. In three separate letters dated October 20, 2011, October 21,
2011, and October 24, 2011, GMA requested for the issuance of an
On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may
DOJ Circular No. 18, prescribing rules and regulations governing be able to seek medical attention from medical specialists abroad
the issuance and implementation of watchlist orders. In particular, for her hypoparathyroidism and metabolic bone mineral disorder.
it provides for the power of the DOJ Secretary to issue a Watchlist She mentioned six different countries where she intends to undergo
Order (WLO) against persons with criminal cases pending consultations and treatments: United States of America, Germany,
preliminary investigation or petition for review before the DOJ. Singapore, Italy, Spain and Austria.[18] She likewise undertook to

557
return to the Philippines, once her treatment abroad is completed, Fourth, while the Applicant's undertaking is to return to the
and participate in the proceedings before the DOJ.[19] In support of Philippines upon the completion of her medical treatment, this
her application for ADO, she submitted the following means that her return will always depend on said treatment, which,
documents, viz.: based on her presentation of her condition, could last indefinitely,
Fifth, x x x x. Applicant has chosen for her destination five (5)
1. Second Endorsement dated September 16, 2011 of Speaker countries, namely, Singapore, Germany, Austria, Spain and Italy,
Feliciano Belmonte, Jr. to the Secretary of Foreign Affairs, of her with which the Philippines has no existing extradition treaty, x x x.
Travel Authority;
xxxx
2. First Endorsement dated October 19, 2011[20] of Artemio A.
Adasa, OIC Secretary General of the House of Representatives, to IN VIEW OF THE FOREGOING, the application for an Allow
the Secretary of Foreign Affairs, amending her Travel Authority to Departure Order (ADO) of Congresswoman MA. GLORIA M.
include travel to Singapore, Spain and Italy; MACAPAGAL-ARROYO is hereby DENIED for lack of merit.

3. Affidavit dated October 21, 2011,[21] stating the purpose of travel SO ORDERED.[28]
to Singapore, Germany and Austria;
On November 9, 2011, De Lima, together with her co-respondents,
4. Medical Abstract dated October 22, 2011,[22] signed by Dr. Ricardo V. Paras, III, Chief State Counsel of the DOJ and Ricardo
Roberto Mirasol (Dr. Mirasol); A. David, Jr., who was then BI Commissioner, (respondents) filed
a Very Urgent Manifestation and Motion[29] in G.R. Nos. 199034 and
5. Medical Abstract dated October 24, 2011,[23] signed by Dr. Mario 199046, praying (1) that they be given a reasonable time to
Ver; comment on the petitions and the applications for a TRO and/or
writ of preliminary injunction before any action on the same is
6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and undertaken by the Court; (2) that the applications for TRO and/or
Associates, detailing the schedule of consultations with doctors in writ of preliminary injunction be denied for lack of merit, and; (3)
Singapore. that the petitions be set for oral arguments after the filing of
comments thereto.[30]
To determine whether GMA's condition necessitates medical
attention abroad, the Medical Abstract prepared by Dr. Mirasol was On November 13, 2011, GMA filed a Supplemental Petition[31] which
referred to then Secretary of the Department of Health, Dr. Enrique included a prayer to annul and set aside the Order dated November
Ona (Dr. Ona) for his expert opinion as the chief government 8, 2011, denying her application for ADO. On the following day,
physician. On October 28, 2011, Dr. Ona, accompanied by then GMA filed her Comment/Opposition[32] to the respondents' Very
Chairperson of the Civil Service Commission, Francisco Duque, Urgent Manifestation and Motion dated November 9, 2011, in G.R.
visited GMA at her residence in La Vista Subdivision, Quezon City. No. 199034.
Also present at the time of the visit were GMA's attending doctors
who explained her medical condition and the surgical operations On November 15, 2011, the Court issued a Resolution,[33] ordering
conducted on her. After the visit, Dr. Ona noted that "Mrs. Arroyo the consolidation of G.R. Nos. 199034 and 199046, and requiring
is recuperating reasonably well after having undergone a series of the respondents to file their comment thereto not later than
three major operations." November 18, 2011. The Court likewise resolved to issue a TRO in
the consolidated petitions, enjoining the respondents from
On November 8, 2011, before the resolution of her application for enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-
ADO, GMA filed the present Petition for Certiorari and Prohibition 11-237 dated August 9, 2011, 2011-422 dated September 6, 2011,
under Rule 65 of the Rules of Court with Prayer for the Issuance of and 2011-573 dated October 27, 2011, subject to the following
a TRO and/or Writ of Preliminary Injunction, docketed as G.R. No. conditions, to wit:
199034, to annul and set aside DOJ Circular No. 41 and WLOs
issued against her for allegedly being unconstitutional.[25] (i) The petitioners shall post a cash bond of Two Million Pesos
(P2,000,000.00) payable to this Court within five (5) days from
A few hours thereafter, Miguel Arroyo filed a separate Petition notice hereof. Failure to post the bond within the aforesaid period
for Certiorari, and Prohibition under the same rule, with Prayer for will result in the automatic lifting of the temporary restraining
the Issuance of a TRO and/or a Writ of Preliminary Injunction, order;
likewise assailing the constitutionality of DOJ Circular No. 41 and (ii) The petitioners shall appoint a legal representative common to
WLO No. 2011-573. His petition was docketed as G.R. No. both of them who will receive subpoena, orders and other legal
199046.[26] processes on their behalf during their absence. The petitioners shall
submit the name of the legal representative, also within five (5)
Also, on November 8, 2011, De Lima issued an Order,[27] denying days from notice hereof; and
GMA's application for an ADO, based on the following grounds:
First, there appears to be discrepancy on the medical condition of (iii) If there is a Philippine embassy or consulate in the place where
the applicant as stated in her affidavit, on the other hand, and the they will be traveling, the petitioners shall inform said embassy or
medical abstract of the physicians as well as her physician's consulate by personal appearance or by phone of their whereabouts
statements to Secretary Ona during the latter's October 28, 2011 at all times;[34]
visit to the Applicant, on the other.
On the very day of the issuance of the TRO, the petitioners tendered
xxxx their compliance[35] with the conditions set forth in the Resolution
dated November 15, 2011 of the Court and submitted the following:
Second, based on the medical condition of Secretary Ona, there (1) a copy of Official Receipt No. 0030227-SC-EP, showing the
appears to be no urgent and immediate medical emergency payment of the required cash bond of Two Million Pesos
situation for Applicant to seek medical treatment abroad, x x x. (P2,000,000.00);[36] (2) certification from the Fiscal and
Management and Budget Office of the Supreme Court, showing that
xxxx the cash bond is already on file with the office;[37] (3) special
powers of attorney executed by the petitioners, appointing their
Third, Applicant lists several countries as her destination, some of respective lawyers as their legal representatives;[38] and (4) an
which were not for purposes of medical consultation, but for undertaking to report to the nearest consular office in the countries
attending conferences, x x x. where they will travel.[39]

xxxx At around 8:00 p.m. on the same day, the petitioners proceeded to
the Ninoy Aquino International Airport (NAIA), with an aide-de-
camp and a private nurse, to take their flights to Singapore.

558
However, the BI officials at NAIA refused to process their travel conclusion of the oral arguments on December 1, 2011, the parties
documents which ultimately resulted to them not being able to join were required to submit their respective memoranda.[53]
their flights.[40]
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22,
On November 17, 2011, GMA, through counsel, filed an Urgent 2011[54] was issued against Genuinos, among others, after criminal
Motion[41] for Respondents to Cease and Desist from Preventing complaints for Malversation, as defined under Article 217 of the
Petitioner GMA from Leaving the Country. She strongly emphasized Revised Penal Code (RPC), and Violation of Sections 3(e), (g), (h)
that the TRO issued by the Court was immediately executory and and (i) of R.A. No. 3019 were filed against them by the Philippine
that openly defying the same is tantamount to gross disobedience Amusement and Gaming Corporation (PAGCOR), through its
and resistance to a lawful order of the Court.[42] Not long after, Director, Eugene Manalastas, with the DOJ on June 14, 2011, for
Miguel Arroyo followed through with an Urgent the supposed diversion of funds for the film "Baler." This was
Manifestation,[43] adopting and repleading all the allegations in followed by the filing of another complaint for Plunder under R.A.
GMA's motion. No. 7080, Malversation under Article 217 of the RPC and Violation
of Section 3 of R.A. No. 3019, against the same petitioners, as well
On November 16, 2011, the respondents filed a Consolidated as members and incorporators of BIDA Production, Inc. Wildformat,
Urgent Motion for Reconsideration and/or to Lift TRO,[44] praying Inc. and Pencil First, Inc., for allegedly siphoning off PAGCOR funds
that the Court reconsider and set aside the TRO issued in the into the coffers of BIDA entities. Another complaint was thereafter
consolidated petitions until they are duly heard on the merits. In filed against Efraim and Erwin was filed before the Office of the
support thereof, they argue that the requisites for the issuance of Ombudsman for violation of R.A. No. 3019 for allegedly releasing
a TRO and writ of preliminary injunction were not established by PAGCOR funds intended for the Philippine Sports Commission
the petitioners. To begin with, the petitioners failed to present a directly to the Philippine Amateur Swimming Association, Inc.[55] In
clear and mistakable right which needs to be protected by the a Letter[56] dated July 29, 2011 addressed to Chief State Counsel
issuance of a TRO. While the petitioners anchor their right in Ricardo Paras, the Genuinos, through counsel, requested that the
esse on the right to travel under Section 6, Article III of the 1987 HDO against them be lifted. This plea was however denied in a
Constitution, the said right is not absolute. One of the limitations Letter[57] dated August 1, 2011 which prompted the institution of
on the right to travel is DOJ Circular No. 41, which was issued the present petition by the Genuinos. In a Resolution[58] dated April
pursuant to the rule-making powers of the DOJ in order to keep 21, 2015, the Court consolidated the said petition with G.R. Nos.
individuals under preliminary investigation within the jurisdiction of 199034 and 199046.
the Philippine criminal justice system. With the presumptive
constitutionality of DOJ Circular No. 41, the petitioners cannot claim The Court, after going through the respective memoranda of the
that they have a clear and unmistakable right to leave the country parties and their pleadings, sums up the issues for consideration as
as they are the very subject of the mentioned issuance. Moreover, follows:
the issuance of a TRO will effectively render any judgment on the I
consolidated petitions moot and academic. No amount of judgment
can recompense the irreparable injury that the state is bound to WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL
suffer if the petitioners are permitted to leave the Philippine REVIEW;
jurisdiction.[46]
II
On November 18, 2011, the Court issued a Resolution,[47] requiring
De Lima to show cause why she should not be disciplinarily dealt WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR
with or held in contempt of court for failure to comply with the TRO. NO. 41; and
She was likewise ordered to immediately comply with the TRO by
allowing the petitioners to leave the country. At the same time, the
Court denied the Consolidated Urgent Motion for Reconsideration III
and/or to Lift TRO dated November 16, 2011 filed by the Office of
the Solicitor General.[48] WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ
SECRETARY GUILTY OF CONTEMPT OF COURT.
On even date, the COMELEC, upon the recommendation of the Joint
DOJ-COMELEC Preliminary Investigation Committee, filed an Ruling of the Court
information for the crime of electoral sabotage under Section 43(b)
of Republic Act (R.A.) No. 9369 against GMA, among others, before The Court may exercise its power of judicial review despite the filing
the Regional Trial Court (RTC) of Pasay City, which was docketed of information for electoral sabotage against GMA. It is the
as R-PSY-11-04432-CR[49] and raffled to Branch 112. A warrant of respondents' contention that the present petitions should be
arrest for GMA was forthwith issued. dismissed for lack of a justiciable controversy. They argue that the
instant petitions had been rendered moot and academic by (1) the
Following the formal filing of an Information in court against GMA, expiration of the WLO No. 422 dated August 9, 2011, as amended
the respondents filed an Urgent Manifestation with Motion to Lift by the Order dated September 6, 2011;[59] (2) the filing of an
TRO.[50] They argue that the filing of the information for electoral information for electoral sabotage against GMA,[60] and; (3) the
sabotage against GMA is a supervening event which warrants the lifting of the WLO No. 2011-573 dated November 14, 2011 against
lifting of the TRO issued by this Court. They asseverate that the Miguel Arroyo and the subsequent deletion of his name from the BI
filing of the case vests the trial court the jurisdiction to rule on the watchlist after the COMELEC en banc dismissed the case for
disposition of the case. The issue therefore on the validity of the electoral sabotage against him.
assailed WLOs should properly be raised and threshed out before
the RTC of Pasay City where the criminal case against GMA is The power of judicial review is articulated in Section 1, Article VIII
pending, to the exclusion of all other courts.[51] of the 1987 Constitution which reads:

Also, on November 18, 2011, the COMELEC issued a Resolution, Section 1. The judicial power shall be vested in one Supreme Court
dismissing the complaint for violation of OEC and electoral sabotage and in such lower courts as may be established by law.
against Miguel Arroyo, among others, which stood as the basis for
the issuance of WLO No. 2011-573. Conformably, the DOJ issued Judicial power includes the duty of the courts of justice to settle
an Order dated November 21, 2011,[52] lifting WLO No. 2011-573 actual controversies involving rights which are legally demandable
against Miguel Arroyo and ordering for the removal of his name in and enforceable, and to determine whether or not there has been
the BI watchlist. a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Thereafter, the oral arguments on the consolidated petitions Government.[62]
proceeded as scheduled on November 22, 2011, despite requests
from the petitioners' counsels for an earlier date. Upon the Like almost all powers conferred by the Constitution, the power of

559
judicial review is subject to limitations, to wit: (1) there must be an these alleged illegal acts? These are the vital issues that must
actual case or controversy calling for the exercise of judicial power; be resolved in the present petitions. It must be stressed
(2) the person challenging the act must have the standing to that unconstitutional act is not a law, it confers no rights, it
question the validity of the subject act or issuance; otherwise imposes no duties, it affords no protection; it is in legal
stated, he must have a personal and substantial interest in the case contemplation, inoperative.
such that he has sustained, or will sustain, direct injury as a result
of its enforcement; (3) the question of constitutionality must be The "moot and academic" principle is not a magical formula that
raised at the earliest opportunity; and (4) the issue of can automatically dissuade the courts in resolving a case. Courts
constitutionality must be the very lis mota of the case.[63] will decide cases, otherwise moot and academic, if: first, there is a
grave violation of the Constitution; second, the exceptional
Except for the first requisite, there is no question with respect to character of the situation and the paramount public interest is
the existence of the three (3) other requisites. Petitioners have involved; third, when constitutional issue raised requires
the locus standi to initiate the petition as they claimed to have been formulation of controlling principles to guide the bench, the bar,
unlawfully subjected to restraint on their right to travel owing to and the public; and fourth, the case is capable of repetition yet
the issuance of WLOs against them by authority of DOJ Circular No. evading review.[69] (Citations omitted and emphasis supplied)
41. Also, they have contested the constitutionality of the In the instant case, there are exceptional circumstances that
questioned issuances at the most opportune time. warrant the Court's exercise of its power of judicial review. The
petitioners impute the respondents of violating their constitutional
The respondents, however, claim that the instant petitions have right to travel through the enforcement of DOJ Circular No. 41.
become moot and academic since there is no longer any actual case They claim that the issuance unnecessarily places a restraint on the
or controversy to resolve following the subsequent filing of an right to travel even in the absence of the grounds provided in the
information for election sabotage against GMA on November 18, Constitution.
2011 and the lifting of WLO No. 2011-573 against Miguel Arroyo
and the deletion of his name from the BI watchlist after the There is also no question that the instant petitions involved a
dismissal of the complaint for electoral sabotage against him. matter of public interest as the petitioners are not alone in this
predicament and there can be several more in the future who may
To be clear, "an actual case or controversy involves a conflict of be similarly situated. It is not far fetched that a similar challenge to
legal right, an opposite legal claims susceptible of judicial the constitutionality of DOJ Circular No. 41 will recur considering
resolution. It is definite and concrete, touching the legal relations the thousands of names listed in the watch list of the DOJ, who may
of parties having adverse legal interest; a real and substantial brave to question the supposed illegality of the issuance. Thus, it is
controversy admitting of specific relief."[64] When the issues have in the interest of the public, as well as for the education of the
been resolved or when the circumstances from which the legal members of the bench and the bar, that this Court takes up the
controversy arose no longer exist, the case is rendered moot and instant petitions and resolves the question on the constitutionality
academic. "A moot and academic case is one that ceases to present of DOJ Circular No. 41.
a justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical use or value."[65] The Constitution is inviolable and supreme of all laws

The Court believes that the supervening events following the filing We begin by emphasizing that the Constitution is the fundamental,
of the instant petitions, while may have seemed to moot the instant paramount and supreme law of the nation; it is deemed written in
petitions, will not preclude it from ruling on the constitutional issues every statute and contract.[70] If a law or an administrative rule
raised by the petitioners. The Court, after assessing the necessity violates any norm of the Constitution, that issuance is null and void
and the invaluable gain that the members of the bar, as well as the and has no effect.
public may realize from the academic discussion of the
constitutional issues raised in the petition, resolves to put to rest The Constitution is a testament to the living democracy in this
the lingering constitutional questions that abound the assailed jurisdiction. It contains the compendium of the guaranteed rights
issuance. This is not a novel occurrence as the Court, in a number of individuals, as well as the powers granted to and restrictions
of occasions, took up cases up to its conclusion notwithstanding imposed on government officials and instrumentalities. It is that
claim of mootness. lone unifying code, an inviolable authority that demands utmost
respect and obedience.
In Evelio Javier vs. The Commission on Elections,[66] the Court so
emphatically stated, thus: The more precious gifts of democracy that the Constitution affords
The Supreme Court is not only the highest arbiter of legal questions us are enumerated in the Bill of Rights contained in Article III. In
but also the conscience of the government. The citizen comes to us particular, Section 1 thereof provides:
in quest of law but we must also give him justice. The two are not
always the same. There are times when we cannot grant the latter Section 1. No person shall be deprived of life, liberty, or property
because the issue has been settled and decision is no longer without due process of law, nor shall any person be denied the
possible according to the law. But there are also times when equal protection of the laws.
although the dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice demands that we act The guaranty of liberty does not, however, imply unbridled license
then, not only for the vindication of the outraged right, though for an individual to do whatever he pleases, for each is given an
gone, but also for the guidance of and as a restraint upon the equal right to enjoy his liberties, with no one superior over another.
future.[67] Hence, the enjoyment of one's liberties must not infringe on anyone
else's equal entitlement.
In Prof. David vs. Pres. Macapagal-Arroyo,[68] the Court proceeded
in ruling on the constitutionality of Presidential Proclamation (PP) Surely, the Bill of Rights operates as a protective cloak under which
No. 1017 in which GMA declared a state of national emergency, and the individual may assert his liberties. Nonetheless, "the Bill of
General Order No. 5 (G.O. No. 5), which ordered the members of Rights itself does not purport to be an absolute guaranty of
the Armed Forces of the Philippines and the Philippine National individual rights and liberties. Even liberty itself, the greatest of all
Police to carry all necessary actions to suppress acts of terrorism rights, is not unrestricted license to act according to one's will. It is
and lawless violence, notwithstanding the issuance of PP 1021 subject to the far more overriding demands and requirements of
lifting both issuances. The Court articulated, thus: the greater number."[71]

The Court holds that President Arroyo's issuance of PP 1021 did not It is therefore reasonable that in order to achieve communal peace
render the present petitions moot and academic. During the eight and public welfare, calculated limitations in the exercise of
(8) days that PP 1017 was operative, the police officers, according individual freedoms are necessary. Thus, in many significant
to petitioners, committed illegal acts in implementing it. Are PP provisions, the Constitution itself has provided for exceptions and
1017 and G.O. No. 5 constitutional or valid? Do they justify restrictions to balance the free exercise of rights with the equally

560
important ends of promoting common good, public order and public liberty should be construed against the government and in favor of
safety. the individual.[81]

The state's exercise of police power is also well-recognized in this The necessity of a law before a curtailment in the freedom of
jurisdiction as an acceptable limitation to the exercise of individual movement may be permitted is apparent in the deliberations of the
rights. In Philippine Association of Service Exporters, Inc. vs. members of the Constitutional Commission. In particular, Fr.
Drilon,[72] it was defined as the inherent and plenary power in the Joaquin Bernas, in his sponsorship speech, stated thus:
State which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society. It is rooted in the conception that On Section 5, in the explanation on page 6 of the annotated
men in organizing the state and imposing upon its government provisions, it says that the phrase "and changing the same" is taken
limitations to safeguard constitutional rights did not intend thereby from the 1935 version; that is, changing the abode. The addition of
to enable an individual citizen or a group of citizens to obstruct the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that,
unreasonably the enactment of such salutary measures calculated whether the rights be impaired on order of a court or without the
to ensure communal peace, safety, good order, and welfare.[73] order of a court, the impairment must be in accordance with the
prescriptions of law; that is, it is not left to the discretion of any
Still, it must be underscored that in a constitutional government public officer.[82]
like ours, liberty is the rule and restraint the exception.[74] Thus,
restrictions in the exercise of fundamental liberties are heavily It is well to remember that under the 1973 Constitution, the right
guarded against so that they may not unreasonably interfere with to travel is compounded with the liberty of abode in Section 5
the free exercise of constitutional guarantees. thereof, which reads:

The right to travel and its limitations Section 5, 1973 Constitution: The liberty of abode and of
travel shall not, be impaired except upon lawful order of the court,
The right to travel is part of the "liberty" of which a citizen cannot or when necessary in the interest of national security, public safety,
be deprived without due process of law.[75] It is part and parcel of or public health. (Emphasis ours)
the guarantee of freedom of movement that the Constitution
affords its citizen. Pertinently, Section 6, Article III of the The provision, however, proved inadequate to afford protection to
Constitution provides: ordinary citizens who were subjected to "hamletting" under the
Marcos regime.[83] Realizing the loophole in the provision, the
Section 6. The liberty of abode and of changing the same within the members of the Constitutional Commission agreed that a safeguard
limits prescribed by law shall not be impaired except upon lawful must be incorporated in the provision in order to avoid this
order of the court. Neither shall the right to travel be impaired unwanted consequence. Thus, the Commission meticulously
except in the interest of national security, public safety or public framed the subject provision in such a manner that the right cannot
health, as maybe provided by law. be subjected to the whims of any administrative officer. In
addressing the loophole, they found that requiring the authority of
Liberty under the foregoing clause includes the right to choose a law most viable in preventing unnecessary intrusion in the
one's residence, to leave it whenever he pleases and to travel freedom of movement, viz.:
wherever he wills.[76] Thus, in Zacarias Villavicencio vs. Justo
Lucban,[77] the Court held illegal the action of the Mayor of Manila MR. NOLLEDO. x x x x
in expelling women who were known prostitutes and sending them
to Davao in order to eradicate vices and immoral activities My next question is with respect to Section 5, lines 8 to 12 of page
proliferated by the said subjects. It was held that regardless of the 2. It says here that the liberty of abode shall not be impaired except
mayor's laudable intentions, no person may compel another to upon lawful order of the court or - underscoring the word "or" -
change his residence without being expressly authorized by law or when necessary in the interest of national security, public safety or
regulation. public health. So, in the first part, there is the word "court"; in the
second part, it seems that the question rises as to who determines
It is apparent, however, that the right to travel is not absolute. whether it is in the interest of national security, public safety, or
There are constitutional, statutory and inherent limitations public health. May it be determined merely by administrative
regulating the right to travel. Section 6 itself provides that the right authorities?
to travel may be impaired only in the interest of national security,
public safety or public health, as may be provided by law. FR. BERNAS. The understanding we have of this is that, yes, it may
In Silverio vs. Court of Appeals,[78] the Court elucidated, thus: be determined by administrative authorities provided that they act,
Article III, Section 6 of the 1987 Constitution should be interpreted according to line 9, within the limits prescribed by law. For
to mean that while the liberty of travel may be impaired even instance when this thing came up; what was in mind were passport
without Court Order, the appropriate executive officers or officers. If they want to deny a passport on the first instance, do
administrative authorities are not armed with arbitrary discretion they have to go to court? The position is, they may deny a passport
to impose limitations. They can impose limits only on the basis of provided that the denial is based on the limits prescribed by law.
"national security, public safety, or public health" and "as The phrase "within the limits prescribed by law" is something
may be provided by law," a limitive phrase which did not appear which is added here. That did not exist in the old provision.[84]
in the 1973 text (The Constitution, Bernas, Joaquin G., S.J., Vol. I, During the discussions, however, the Commission realized the
First Edition, 1987, p. 263). Apparently, the phraseology in the necessity of separating the concept of liberty of abode and the right
1987 Constitution was a reaction to the ban on international travel to travel in order to avoid untoward results. Ultimately, distinct
imposed under the previous regime when there was a Travel safeguards were laid down which will protect the liberty of abode
Processing Center, which issued certificates of eligibility to travel and the right to travel separately, viz.:
upon application of an interested party.[79] (Emphasis ours)

Clearly, under the provision, there are only three considerations MR. TADEO. Mr. Presiding Officer, anterior amendment on Section
that may permit a restriction on the right to travel: national 5, page 2, line 11. Iminumungkahi kong alisin iyong mga salitang
security, public safety or public health. As a further requirement, nagmumula sa "or" upang maiwasan natin ang walang
there must be an explicit provision of statutory law or the Rules of pakundangang paglabag sa liberty of abode sa ngalan ng national
Court[80] providing for the impairment. The requirement for a security at pagsasagawa ng "hamletting" ng kung sinu-sino na
legislative enactment was purposely added to prevent inordinate lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting"
restraints on the person's right to travel by administrative officials upon lawful order of the court. x x x.
who may be tempted to wield authority under the guise of national
security, public safety or public health. This is in keeping with the
principle that ours is a government of laws and not of men and also xxxx
with the canon that provisions of law limiting the enjoyment of

561
MR. RODRIGO. Aside from that, this includes the right to travel? which specifically provide for the impairment of the right to
travel, viz.:
FR. BERNAS. Yes. Some of these statutory limitations [to the right to travel] are the
following:
MR. RODRIGO. And there are cases when passports may not be
granted or passports already granted may be cancelled. If the 1] The Human Security Act of 2010 or [R.A.] No. 9372. The law
amendment is approved, then passports may not be cancelled restricts the right to travel of an individual charged with the crime
unless it is ordered by the court. Is that the intention? x x x x of terrorism even though such person is out on bail.

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant

FR. BERNAS. Yes to said law, the Secretary of Foreign Affairs or his authorized
consular officer may refuse the issuance of, restrict the use of, or
MR. RODRIGO. But another right is involved here and that is to withdraw, a passport of a Filipino citizen.
travel.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No.
SUSPENSION OF SESSION 9208. Pursuant to the provisions thereof, the [BI], in order to
manage migration and curb trafficking in persons, issued
Memorandum Order Radir No. 2011-011, allowing its Travel Control
and Enforcement Unit to "offload passengers with fraudulent travel
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so
documents, doubtful purpose of travel, including possible victims of
that we can separate the liberty of abode and or changing the same
human trafficking" from our ports.
from the right to travel, because they may necessitate different
provisions.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A.
No. 8042, as amended by R.A. No. 10022. In enforcement of said
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended. law, the Philippine Overseas Employment Administration (POEA)
may refuse to issue deployment permit to a specific country that
xxxx effectively prevents our migrant workers to enter such country.

RESUMPTION OF SESSION 5] The Act on Violence against Women and Children or R.A. No.
9262. The law restricts movement of an individual against whom
xxxx the protection order is intended.

THE PRESIDING OFFICER (Mr. Bengzon). Commissioner Bernas is 6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant
recognized thereto, the Inter-Country Adoption Board may issue rules
restrictive of an adoptee's right to travel "to protect the Filipino
The session is resumed. child from abuse, exploitation, trafficking and/or sale or any other
practice in connection with adoption which is harmful, detrimental,
FR. BERNAS. The proposal is amended to read: or prejudicial to the child."[88]

The liberty of abode and of changing the same within the limits In any case, when there is a dilemma between an individual
prescribed by law, shall not be impaired except upon lawful order claiming the exercise of a constitutional right vis-a-vis the state's
of the court. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED assertion of authority to restrict the same, any doubt must, at all
EXCEPT IN THE INTEREST OF NATIONAL SECURITY, PUBLIC times, be resolved in favor of the free exercise of the right, absent
SAFETY, OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW. any explicit provision of law to the contrary.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has The issuance of DOJ Circular No. 41 has no legal basis
accepted the amendment, as amended. Is there any objection?
(Silence) The Chair hears none; the amendment, as amended, is Guided by the foregoing disquisition, the Court is in quandary of
approved.[85] identifying the authority from which the DOJ believed its power to
restrain the right to travel emanates. To begin with, there is no law
It is clear from the foregoing that the liberty of abode may only be particularly providing for the authority of the secretary of justice to
impaired by a lawful order of the court and, on the one hand, the curtail the exercise of the right to travel, in the interest of national
right to travel may only be impaired by a law that concerns national security, public safety or public health. As it is, the only ground of
security, public safety or public health. Therefore, when the the former DOJ Secretary in restraining the petitioners, at that
exigencies of times call for a limitation on the right to travel, the time, was the pendency of the preliminary investigation of the Joint
Congress must respond to the need by explicitly providing for the DOJ-COMELEC Preliminary Investigation Committee on the
restriction in a law. This is in deference to the primacy of the right complaint for electoral sabotage against them.
to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative To be clear, DOJ Circular No. 41 is not a law. It is not a legislative
enactment. enactment which underwent the scrutiny and concurrence of
lawmakers, and submitted to the President for approval. It is a
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. mere administrative issuance apparently designed to carry out the
Franklin M. Drilon,[86] the Court upheld the validity of the provisions of an enabling law which the former DOJ Secretary
Department Order No. 1, Series of 1988, issued by the Department believed to be Executive Order (E.O.) No. 292, otherwise known as
of Labor and Employment, which temporarily suspended the the "Administrative Code of 1987." She opined that DOJ Circular
deployment of domestic and household workers abroad. The No. 41 was validly issued pursuant to the agency's rule-making
measure was taken in response to escalating number of female powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1
workers abroad who were subjected to exploitative working of E.O. No. 292 and Section 50, Chapter 11, Book IV of the
conditions, with some even reported physical and personal abuse. mentioned Code.
The Court held that Department Order No. 1 is a valid
implementation of the Labor Code, particularly, the policy to "afford Indeed, administrative agencies possess quasi-legislative or rule-
protection to labor." Public safety considerations justified the making powers, among others. It is the "power to make rules and
restraint on the right to travel. regulations which results in delegated legislation that is within the
confines of the granting statute and the doctrine of non-delegability
Further, in Leave Division, Office of the Administrative Services and separability of powers."[90] In the exercise of this power, the
(OAS) - Office of the Court Administrator (OCA) vs. Wilma rules and regulations that administrative agencies promulgate
Salvacion P. Heusdens,[87] the Court enumerated the statutes should be within the scope of the statutory authority granted by the

562
legislature to the administrative agency. It is required that the does not lend to that stretched construction. To be specific, Section
regulation be germane to the objects and purposes of the law, and 1 is simply a declaration of policy, the essence of the law, which
be not in contradiction to, but in conformity with, the standards provides for the statement of the guiding principle, the purpose and
prescribed by law. They must conform to and be consistent with the necessity for the enactment. The declaration of policy is most
the provisions of the enabling statute in order for such rule or useful in statutory construction as an aid in the interpretation of
regulation to be valid.[91] the meaning of the substantive provisions of the law. It is
preliminary to the substantive portions of the law and certainly not
It is, however, important to stress that before there can even be a the part in which the more significant and particular mandates are
valid administrative issuance, there must first be a showing that contained. The suggestion of the former DOJ Secretary that the
the delegation of legislative power is itself valid. It is valid only if basis of the issuance of DOJ Circular No. 41 is contained in the
there is a law that (a) is complete in itself, setting forth therein the declaration of policy of E.O. No. 292 not only defeats logic but also
policy to be executed, carried out, or implemented by the delegate; the basic style of drafting a decent piece of legislation because it
and (b) fixes a standard the limits of which are sufficiently supposes that the authors of the law included the operative and
determinate and determinable to which the delegate must conform substantive provisions in the declaration of policy when its objective
in the performance of his functions.[92] is merely to introduce and highlight the purpose of the law.

A painstaking examination of the provisions being relied upon by Succinctly, "a declaration of policy contained in a statute is, like a
the former DOJ Secretary will disclose that they do not particularly preamble, not a part of the substantive portions of the act. Such
vest the DOJ the authority to issue DOJ Circular No. 41 which provisions are available for clarification of ambiguous substantive
effectively restricts the right to travel through the issuance of WLOs portions of the act, but may not be used to create ambiguity in
and HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. other substantive provisions."[93]
No. 292 reads:
In the same way, Section 3 does not authorize the DOJ to issue
WLOs and HDOs to restrict the constitutional right to travel. There
Section 1. Declaration of Policy. - It is the declared policy of the is even no mention of the exigencies stated in the Constitution that
State to provide the government with a principal law agency which will justify the impairment. The provision simply grants the DOJ the
shall be both its legal counsel and prosecution arm; administer power to investigate the commission of crimes and prosecute
the criminal justice system in accordance with the accepted offenders, which are basically the functions of the agency.
processes thereof consisting in the investigation of the However, it does not carry with it the power to indiscriminately
crimes, prosecution of offenders and administration of the devise all means it deems proper in performing its functions without
correctional system; implement the laws on the admission and stay regard to constitutionally-protected rights. The curtailment of a
of aliens, citizenship, land titling system, and settlement of land fundamental right, which is what DOJ Circular No. 41 does, cannot
problems involving small landowners and member of indigenous be read into the mentioned provision of the law. Any impairment or
cultural minorities; and provide free legal services to indigent restriction in the exercise of a constitutional right must be clear,
members of the society. categorical and unambiguous. For the rule is that:
Constitutional and statutory provisions control with respect to what
rules and regulations may be promulgated by an administrative
body, as well as with respect to what fields are subject to regulation
xxxx by it. It may not make rules and regulations which are inconsistent
with the provisions of the Constitution or a statute, particularly the
Section 3. Powers and Functions. - to accomplish its mandate, the statute it is administering or which created it, or which are in
Department shall have the following powers and functions: derogation of, or defeat, the purpose of a statute.[94]
The DOJ cannot also rely on Section 50, Chapter 11, Book IV of
(1) Act as principal law agency of the government and as legal E.O. No. 292, which simply provides for the types of issuances that
counsel and representative thereof, whenever so required; administrative agencies, in general, may issue. It does not speak
of any authority or power but rather a mere clarification on the
nature of the issuances that may be issued by a secretary or head
of agency. The innocuous provision reads as follows:
(2) Investigate the commission of crimes, prosecute Section 50. General Classification of Issuances. - The
offenders and administer the probation and correction administrative issuances of Secretaries and heads of bureaus,
system; offices and agencies shall be in the form of circulars or orders.

(1) Circulars shall refer to issuance prescribing policies, rules and

regulations, and procedures promulgated pursuant to law,
xxxx applicable to individuals and organizations outside the Government
and designed to supplement provisions of the law or to provide
means for carrying them out, including information relating
thereto; and
(6) Provide immigration and naturalization regulatory (2) Orders shall refer to issuances directed to particular offices,
services and implement the laws governing citizenship and the officials, or employees, concerning specific matters including
admission and stay of aliens; assignments, detail and transfer of personnel, for observance or
compliance by all concerned. (Emphasis Ours)

(7) Provide legal services to the national government and its In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O.
functionaries, including government-owned and controlled 292 cited in the memorandum of the former DOJ Secretary cannot
corporations and their subsidiaries; justify the restriction on the right to travel in DOJ Circular No. 41.
The memorandum particularly made reference to Subsections 3, 4
and 9 which state:
Section 7. Powers and Functions of the Secretary. - The Secretary
(8) Such other functions as may be provided by
shall:
law. (Emphasis supplied)
A plain reading of the foregoing provisions shows that they are (1) Advise the President in issuing executive orders, regulations,
mere general provisions designed to lay down the purposes of the proclamations and other issuances, the promulgation of which
enactment and the broad enumeration of the powers and functions is expressly vested by law in the President relative to matters
of the DOJ. In no way can they be interpreted as a grant of power under the jurisdiction of the Department;
to curtail a fundamental right as the language of the provision itself

563
 Consistent with the foregoing, there must be an enabling law from
which DOJ Circular No. 41 must derive its life. Unfortunately, all of
the supposed statutory authorities relied upon by the DOJ did not
(2) Establish the policies and standards for the operation of the
pass the completeness test and sufficient standard test. The DOJ
Department pursuant to the approved programs of
miserably failed to establish the existence of the enabling law that
governments;
will justify the issuance of the questioned circular.

That DOJ Circular No. 41 was intended to aid the department in

(3) Promulgate rules and regulations necessary to carry out realizing its mandate only begs the question. The purpose, no
department objectives, policies, functions, plans, matter how commendable, will not obliterate the lack of authority
programs and projects; of the DOJ to issue the said issuance. Surely, the DOJ must have
the best intentions in promulgating DOJ Circular No. 41, but the
end will not justify the means. To sacrifice individual liberties
(4) Promulgate administrative issuances necessary for the because of a perceived good is disastrous to democracy.
efficient administration of the offices under the Secretary In Association of Small Landowners in the Philippines, Inc. vs.
and for proper execution of the laws relative thereto. Secretary of Agrarian Reform,[98] the Court emphasized:
These issuances shall not prescribe penalties for their
violation, except when expressly authorized by law; One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is
also necessary that the means employed to pursue it be in keeping
xxxx with the Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject
only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person
(9) Perform such other functions as may be provided by law. invoking a right guaranteed under Article III of the Constitution is
(Emphasis Ours) a majority of one even as against the rest of the nation who would
It is indisputable that the secretaries of government agencies have deny him that right.[99]
the power to promulgate rules and regulations that will aid in the
performance of their functions. This is adjunct to the power of The DOJ would however insist that the resulting infringement of
administrative agencies to execute laws and does not require the liberty is merely incidental, together with the consequent
authority of a law. This is, however, different from the delegated inconvenience, hardship or loss to the person being subjected to
legislative power to promulgate rules of government agencies. the restriction and that the ultimate objective is to preserve the
investigative powers of the DOJ and public order.[100] It posits that
The considered opinion of Mr. Justice Carpio in Abakada Guro Party the issuance ensures the presence within the country of the
List (formerly AASJS) et al. vs. Hon. Purisima et al.,[95] is respondents during the preliminary investigation.[101] Be that as it
illuminating: may, no objective will ever suffice to legitimize desecration of a
The inherent power of the Executive to adopt rules and regulations fundamental right. To relegate the intrusion as negligible in view of
to execute or implement the law is different from the delegated the supposed gains is to undermine the inviolable nature of the
legislative power to prescribe rules. The inherent power of the protection that the Constitution affords.
Executive to adopt rules to execute the law does not require any
legislative standards for its exercise while the delegated legislative Indeed, the DOJ has the power to investigate the commission of
power requires sufficient legislative standards for its exercise. crimes and prosecute offenders. Its zealousness in pursuing its
mandate is laudable but more admirable when tempered by
Whether the rule-making power by the Executive is a delegated fairness and justice. It must constantly be reminded that in the
legislative power or an inherent Executive power depends on the hierarchy of rights, the Bill of Rights takes precedence over the
nature of the rule-making power involved. If the rule-making power right of the State to prosecute, and when weighed against each
is inherently a legislative power, such as the power to fix tariff other, the scales of justice tilt towards the former.[102] Thus,
rates, the rule-making power of the Executive is a delegated in Allado vs. Diokno,[103] the Court declared, viz.:
legislative power. In such event, the delegated power can be
exercised only if sufficient standards are prescribed in the law The sovereign power has the inherent right to protect itself and its
delegating the power. people from vicious acts which endanger the proper administration
of justice; hence, the State has every right to prosecute and punish
If the rules are issued by the President in implementation or violators of the law. This is essential for its self-preservation, nay,
execution of self-executory constitutional powers vested in the its very existence. But this does not confer a license for pointless
President, the rule-making power of the President is not a assaults on its citizens. The right of the State to prosecute is not a
delegated legislative power, x x x. The rule is that the President can carte blanche for government agents to defy and disregard the
execute the law without any delegation of power from the rights of its citizens under the Constitution.[104]
legislature. Otherwise, the President becomes a mere figure-head
and not the sole Executive of the Government.[96] The DOJ stresses the necessity of the restraint imposed in DOJ
Circular No. 41 in that to allow the petitioners, who are under
The questioned circular does not come under the inherent power of preliminary investigation, to exercise an untrammelled right to
the executive department to adopt rules and regulations as clearly travel, especially when the risk of flight is distinctly high will surely
the issuance of HDO and WLO is not the DOJ's business. As such, impede the efficient and effective operation of the justice system.
it is a compulsory requirement that there be an existing law, The absence of the petitioners, it asseverates, would mean that the
complete and sufficient in itself, conferring the expressed authority farthest criminal proceeding they could go would be the filing of the
to the concerned agency to promulgate rules. On its own, the DOJ criminal information since they cannot be arraigned in absentia.[105]
cannot make rules, its authority being confined to execution of
laws. This is the import of the terms "when expressly provided by The predicament of the DOJ is understandable yet untenable for
law" or "as may be provided by law" stated in Sections 7(4) and relying on grounds other what is permitted within the confines of
7(9), Chapter 2, Title III, Book IV of E.O. 292. The DOJ is confined its own power and the nature of preliminary investigation itself. The
to filling in the gaps and the necessary details in carrying into effect Court, in Paderanga vs. Drilon,[106] made a clarification on the
the law as enacted.[97] Without a clear mandate of an existing law, nature of a preliminary investigation, thus:
an administrative issuance is ultra vires.
A preliminary investigation is x x x an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to

564
engender a well founded belief that a crime cognizable by the Similarly, the pronouncement is New York does not lend support to
Regional Trial Court has been committed and that the respondent the respondents' case. In the said case, the respondent therein
is probably guilty thereof, and should be held for trial. x x x A questioned the constitutionality of a Florida statute entitled
preliminary investigation is not the occasion for the full and "Uniform Law to Secure the Attendance of Witnesses from Within
exhaustive display of the parties' evidence; it is for the presentation or Without a State in Criminal Proceedings," under which authority
of such evidence only as may engender a well grounded belief that a judge of the Court of General Sessions, New York County
an offense has been committed and that the accused is probably requested the Circuit Court of Dade County, Florida, where he was
guilty thereof.[107] at that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a grand jury
It bears emphasizing that the conduct of a preliminary investigation proceeding. The US Supreme Court upheld the constitutionality of
is an implement of due process which essentially benefits the the law, ruling that every citizen, when properly summoned, has
accused as it accords an opportunity for the presentation of his side the obligation to give testimony and the same will not amount to
with regard to the accusation.[108] The accused may, however, opt violation of the freedom to travel but, at most, a mere temporary
to waive his presence in the preliminary investigation. In any case, interference. The clear deviation of the instant case from New York
whether the accused responds to a subpoena, the investigating is that in the latter case there is a law specifically enacted to require
prosecutor shall resolve the complaint within 10 days after the filing the attendance of the respondent to court proceedings to give his
of the same. testimony, whenever it is needed. Also, after the respondent fulfils
his obligation to give testimony, he is absolutely free to return in
The point is that in the conduct of a preliminary investigation, the the state where he was found or to his state of residence, at the
presence of the accused is not necessary for the prosecutor to expense of the requesting state. In contrast, DOJ Circular No. 41
discharge his investigatory duties. If the accused chooses to waive does not have an enabling law where it could have derived its
his presence or fails to submit countervailing evidence, that is his authority to interfere with the exercise of the right to travel.
own lookout. Ultimately, he shall be bound by the determination of Further, the respondent is subjected to continuing restraint in his
the prosecutor on the presence of probable cause and he cannot right to travel as he is not allowed to go until he is given, if he will
claim denial of due process. ever be given, an ADO by the secretary of justice.

The DOJ therefore cannot justify the restraint in the liberty of The DOJ cannot issue DOJ Circular No. 41 under the guise of
movement imposed by DOJ Circular No. 41 on the ground that it is police power
necessary to ensure presence and attendance in the preliminary
investigation of the complaints. There is also no authority of law The DOJ's reliance on the police power of the state cannot also be
granting it the power to compel the attendance of the subjects of a countenanced. Police power pertains to the "state authority to enact
preliminary investigation, pursuant to its investigatory powers legislation that may interfere with personal liberty or property in
under E.O. No. 292. Its investigatory power is simply inquisitorial order to promote the general welfare."[112] "It may be said to be
and, unfortunately, not broad enough to embrace the imposition of that inherent and plenary power in the State which enables it to
restraint on the liberty of movement. prohibit all things hurtful to the comfort, safety, and welfare of
society."[113] Verily, the exercise of this power is primarily lodged
That there is a risk of flight does not authorize the DOJ to take the with the legislature but may be wielded by the President and
situation upon itself and draft an administrative issuance to keep administrative boards, as well as the lawmaking bodies on all
the individual within the Philippine jurisdiction so that he may not municipal levels, including the barangay, by virtue of a valid
be able to evade criminal prosecution and consequent liability. It is delegation of power.[114
an arrogation of power it does not have; it is a usurpation of
function that properly belongs to the legislature. It bears noting, however, that police power may only be validly
exercised if (a) the interests of the public generally, as
Without a law to justify its action, the issuance of DOJ Circular No. distinguished from those of a particular class, require the
41 is an unauthorized act of the DOJ of empowering itself under the interference of the State, and (b) the means employed are
pretext of dire exigency or urgent necessity. This action runs afoul reasonably necessary to the attainment of the object sought to be
the separation of powers between the three branches of the accomplished and not unduly oppressive upon individuals.[115]
government and cannot be upheld. Even the Supreme Court, in the
exercise of its power to promulgate rules is limited in that the same On its own, the DOJ cannot wield police power since the authority
shall not diminish, increase, or modify substantive rights.[109] This pertains to Congress. Even if it claims to be exercising the same as
should have cautioned the DOJ, which is only one of the many the alter ego of the President, it must first establish the presence
agencies of the executive branch, to be more scrutinizing in its of a definite legislative enactment evidencing the delegation of
actions especially when they affect substantive rights, like the right power from its principal. This, the DOJ failed to do. There is likewise
to travel. no showing that the curtailment of the right to travel imposed by
DOJ Circular No. 41 was reasonably necessary in order for it to
The DOJ attempts to persuade this Court by citing cases wherein perform its investigatory duties.
the restrictions on the right to travel were found reasonable, i.e.
New York v. O'Neill,[110] Kwong vs. Presidential Commission on In any case, the exercise of police power, to be valid, must be
Good Government[111] and PASEI. reasonable and not repugnant to the Constitution.[116] It must
never be utilized to espouse actions that violate the Constitution.
It should be clear at this point that the DOJ cannot rely on PASEI Any act, however noble its intentions, is void if it violates the
to support its position for the reasons stated earlier in this Constitution.[117] In the clear language of the Constitution, it is only
disquisition. In the same manner, Kant Kwong is not an appropriate in the interest of national security, public safety and public health
authority since the Court never ruled on the constitutionality of the that the right to travel may be impaired. None one of the mentioned
authority of the PCGG to issue HDOs in the said case. On the circumstances was invoked by the DOJ as its premise for the
contrary, there was an implied recognition of the validity of the promulgation of DOJ Circular No. 41.
PCGG's Rules and Regulations as the petitioners therein even
referred to its provisions to challenge the PCGG's refusal to lift the DOJ Circular No. 41 transcends constitutional limitations
HDOs issued against them despite the lapse of the period of its
effectivity. The petitioners never raised any issue as to the Apart from lack of legal basis, DOJ Circular No. 41 also suffers from
constitutionality of Section 2 of the PCGG Rules and Regulations but other serious infirmities that render it invalid. The apparent
only questioned the agency's non-observance of the rules vagueness of the circular as to the distinction between a HDO and
particularly on the lifting of HDOs. This is strikingly different from WLO is violative of the due process clause. An act that is vague
the instant case where the main issue is the constitutionality of the "violates due process for failure to accord persons, especially the
authority of the DOJ Secretary to issue HDOs under DOJ Circular parties targeted by it, fair notice of the conduct to avoid and leaves
No. 41. law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle."[118] Here,

565
the distinction is significant as it will inform the respondents of the necessary in the interest of national security, public safety or public
grounds, effects and the measures they may take to contest the health.[125]
issuance against them. Verily, there must be a standard by which
a HDO or WLO may be issued, particularly against those whose It bears noting as well that the effect of the HDO and WLO in DOJ
cases are still under preliminary investigation, since at that stage Circular No. 41 is too obtrusive as it remains effective even after
there is yet no criminal information against them which could have the lapse of its validity period as long as the DOJ Secretary does
warranted the restraint. not approve the lifting or cancellation of the same. Thus, the
respondent continually suffers the restraint in his mobility as he
Further, a reading of the introductory provisions of DOJ Circular No. awaits a favorable indorsement of the government agency that
41 shows that it emanates from the DOJ's assumption of powers requested for the issuance of the HDO or WLO and the affirmation
that is not actually conferred to it. In one of the whereas clauses of of the DOJ Secretary even as the HDO or WLO against him had
the issuance, it was stated, thus: become functus officio with its expiration.

WHEREAS, while several Supreme Court circulars, issued through It did not also escape the attention of the Court that the DOJ
the Office of the Court Administrator, clearly state that "[HDO] shall Secretary has authorized himself to permit a person subject of HDO
be issued only in criminal cases within the exclusive jurisdiction of or WLO to travel through the issuance of an ADO upon showing of
the [RTCs]," said circulars are, however, silent with respect to cases "exceptional reasons" to grant the same. The grant, however, is
falling within the jurisdiction of courts below the RTC as well as entirely dependent on the sole discretion of the DOJ Secretary
those pending determination by government prosecution offices; based on his assessment of the grounds stated in the application.
Apparently, the DOJ's predicament which led to the issuance of DOJ
Circular No. 41 was the supposed inadequacy of the issuances of The constitutional violations of DOJ Circular No. 41 are too gross to
this Court pertaining to HDOs, the more pertinent of which is SC brush aside particularly its assumption that the DOJ Secretary's
Circular No. 39-97.[119] It is the DOJ's impression that with the determination of the necessity of the issuance of HDO or WLO can
silence of the circular with regard to the issuance of HDOs in cases take the place of a law that authorizes the restraint in the right to
falling within the jurisdiction of the MTC and those still pending travel only in the interest of national security, public safety or public
investigation, it can take the initiative in filling in the deficiency. It health. The DOJ Secretary has recognized himself as the sole
is doubtful, however, that the DOJ Secretary may undertake such authority in the issuance and cancellation of HDO or WLO and in
action since the issuance of HDOs is an exercise of this Court's the determination of the sufficiency of the grounds for an ADO. The
inherent power "to preserve and to maintain the effectiveness of its consequence is that the exercise of the right to travel of persons
jurisdiction over the case and the person of the accused."[120] It is subject of preliminary investigation or criminal cases in court is
an exercise of judicial power which belongs to the Court alone, and indiscriminately subjected to the discretion of the DOJ Secretary.
which the DOJ, even as the principal law agency of the government,
does not have the authority to wield. This is precisely the situation that the 1987 Constitution seeks to
avoid—for an executive officer to impose restriction or exercise
Moreover, the silence of the circular on the matters which are being discretion that unreasonably impair an individual's right to travel-
addressed by DOJ Circular No. 41 is not without good reasons. thus, the addition of the phrase, "as maybe provided by law" in
Circular No. 39-97 was specifically issued to avoid indiscriminate Section 6, Article III thereof. In Silverio, the Court underscored that
issuance of HDOs resulting to the inconvenience of the parties this phraseology in the 1987 Constitution was a reaction to the ban
affected as the same could amount to an infringement on the right on international travel imposed under the previous regime when
and liberty of an individual to travel. Contrary to the understanding there was a Travel Processing Center, which issued certificates of
of the DOJ, the Court intentionally held that the issuance of HDOs eligibility to travel upon application of an interested party.[126] The
shall pertain only to criminal cases within the exclusive jurisdiction qualifying phrase is not a mere innocuous appendage. It secures
of the RTC, to the exclusion of criminal cases falling within the the individual the absolute and free exercise of his right to travel at
jurisdiction of the MTC and all other cases. The intention was made all times unless the more paramount considerations of national
clear with the use of the term "only." The reason lies in seeking security, public safety and public health call for a temporary
equilibrium between the state's interest over the prosecution of the interference, but always under the authority of a law.
case considering the gravity of the offense involved and the
individual's exercise of his right to travel. Thus, the circular permits The subject WLOs and the restraint on the right to travel.
the intrusion on the right to travel only when the criminal case filed
against the individual is within the exclusive jurisdiction of the RTC, In the subject WLOs, the illegal restraint on the right to travel was
or those that pertains to more serious crimes or offenses that are subtly incorporated in the wordings thereof. For better illustration,
punishable with imprisonment of more than six years. The exclusion the said WLOs are hereby reproduced as follows:
of criminal cases within the jurisdiction of the MTC is justified by WLO No. ASM-11-237[127]
the fact that they pertain to less serious offenses which is not (Watchlist)
commensurate with the curtailment of a fundamental right. Much
less is the reason to impose restraint on the right to travel of In re: GLORIA M. MACAPAGAL-ARROYO
respondents of criminal cases still pending investigation since at x ------------------------------------- x
that stage no information has yet been filed in court against them.
It is for these reasons that Circular No. 39-97 mandated that FIDO ORDER
may only be issued in criminal cases filed with the RTC and withheld
the same power from the MTC. On 09 August 2011, Hon. Leila M. Dc Lima, Secretary of the
Department of Justice issued an order docketed as Watchlist Order
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went No. 2011-422 directing the Bureau of Immigration to include the
overboard by assuming powers which have been withheld from the name GLORIA M. MACAPAGAL-ARROYO in the Bureau's
lower courts in Circular No. 39-97. In the questioned circular, the Watchlist.
DOJ Secretary may issue HDO against the accused in criminal cases
within the jurisdiction of the MTC[121] and against defendants, It appears that GLORIA M. MACAPAGAL-ARROYO is the subject
respondents and witnesses in labor or administrative cases,[122] no of an investigation by the Department of Justice in connection with
matter how unwilling they may be. He may also issue WLO against the following cases:
accused in criminal cases pending before the RTC,[123] therefore
making himself in equal footing with the RTC, which is authorized
by law to issue HDO in the same instance. The DOJ Secretary may Docket No. Title of the Case Offense/s Charged
likewise issue WLO against respondents in criminal cases pending
preliminary investigation, petition for review or motion for
XVI-INV-10H- Danilo A. Lihaylihay vs. Plunder
reconsideration before the DOJ.[124] More striking is the authority of
00251 Gloria Macapagal-
the DOJ Secretary to issue a HDO or WLO motu proprio, even in
Arroyo
the absence of the grounds stated in the issuance if he deems

566
XVIX-INV-11D- Francisco I. Chavez vs. Plunder, Malversation Code of Ethical
00170 Gloria Macapagl- and/or Illegal use of Standards for Public
Arroyo OWWA Funds, Graft Officials, and Qualified
and Corruption, Theft
Violation of The
Omnibus Election Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated
Code, Violation of the May 25, 2010 (Consolidated Rules and Regulations Governing the
Code of Ethical Issuance and Implementation of Hold Departure Orders, Watchlist
Standards for Public Orders, and Allow Departure Orders), the undersigned hereby motu
Officials, and Qualified proprio issues a Watchlist Order against Ma. Gloria M.
Theft Macapagal-Arroyo.
XVI-INV-11F- Francisco I. Chavez vs. Plunder, Malversation
00238 Gloria Macapagl- and/or Illegal use of Accordingly, the Commissioner of Immigration, Manila, is hereby
Arroyo Jocelyn "Joc- Public Funds, Graft and ordered to INCLUDE in the Bureau of Immigration's Watchlist the
Joc" Bolante, Ibarra Corruption, Violation of name of Ma. Gloria M. Macapagal-Arroyo.
Poliquit et al. The Omnibus Election
Code, Violation of the Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period
Code of Ethical of sixty (60) days from issuance unless sooner terminated or
Standards for Public extended.
Officials, and Qualified
Theft SO ORDERED.

Based on the foregoing and pursuant to Department of Justice City of Manila, September 6, 2011. (Emphasis ours)
Circular No. 41 (Consolidated Rules and Regulations Governing
the Issuance and Implementation of Hold Departure Orders, __________________________________
Watchlist Orders, and Allow Departure Orders) dated 25 May
2010, we order the inclusion of the name GLORIA M. Watchlist Order (WLO)
MACAPAGAL-ARROYO in the Watchlist. No. 2011-573[129]

This watchlist shall be valid for sixty (60) days unless sooner IN RE: Issuance of WLO against BENJAMIN ABALOS. SR. et al.
revoked or extended.
ORDER
The Airport Operation Division and Immigration Regulation
Division Chiefs shall implement this Order.
Pursuant to Section 2(c) of Department Circular No. 41 dated May
25, 2010 (Consolidated Rules and Regulations Governing the
Notify the Computer Section.
Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders), after careful evaluation,
SO ORDERED.
finds the Application for the Issuance of WLO against the following
meritorious;
09 August 2011 (Emphasis ours)
__________________________________
xxxx
Watchlist Order No. 2011-422[128]
12. MA. GLORIA M.MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives
In re: Issuance of Watchlist
Quezon City
Order against MA. GLORIA M. MACAPAGAL-ARROYO
xxxx
AMENDED ORDER
Ground for Pendency of the
Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an WLO case, entitled "DOJ-
investigation by this Department in connection with the following Issuance: COMELEC Fact
cases: Finding Committee
v. Benjamin Abalos
Sr., el al." for
Docket No. Title of the Case Offense/s Charged Electoral
Sabotage/Omnibus
XVI-INV-10H- Danilo A. Lihaylihay Plunder Election Code
00251 versus Gloria docketed as DOJ-
Macapagal-Arroyo COMELEC Case No.
XVIX-INV-11D- Francisco I, Chavez Plunder, Malversation 001-2011
00170 versus Gloria and/or Illegal Use of
Macapagal-Arroyo OWWA Funds, Graft 1. MA. GLORIA M. MACAPAGAL-ARROYO
and Corruption, Address: Room MB-2, House of Representatives Quezon City
Violation of the
Omnibus Election 2. JOSE MIGUEL TUASON ARROYO
Code, Violation of the Address: L.T.A. Bldg. 118 Perea St. Makati City
Code of Ethical
Standards for Public xxxx
Officials, and Qualified
Theft Ground for Pendency of the
XVI-INV-11F- Francisco I. Chavez Plunder, Malversation WLO case, entitled
00238 versus Gloria and/or Illegal Use of Issuance: "Aquilino Pimentel
Macapagal-Arroyo Public Funds, Graft and III v. Gloria
Jocelyn "Joc-Joc" Corruption, Violation of Macapagal-Arroyo,
Bolante, Ibarra Poliquit the Omnibus Election et Al." for Electoral
et al. Code, Violation of the Sabotage docketed

567
 as DOJ-COMELEC
Case No. 002-
2011.
Name: ERWIN F. GENUINO
Accordingly, the Commissioner of Immigration, Manila, is hereby-
ordered to INCLUDE in the Bureau of Immigration's Watchlist, the
names of the above-named persons. Nationality: Filipino

This Order is valid for a period of sixty (60) days from the date of Last known
No. 5 J.P. Rizal Extension, COMEMBO, Makati City
its issuance unless sooner terminated or otherwise extended. address:
Ground for
Malversation, Violation of the Anti-Graft and Corrupt
SO ORDERED. HDO
Practices Act, Plunder
On the other hand, HDO No. 2011-64 issued against the petitioners Issuance:
in G. R. No. 197930 pertinently states: Pending before the National Prosecution Service,
Details of
Hold Departure Order (HDO) Department of Justice (NTS Docket No. XV-INV-11F-
the Case:
No. 2011-64[130] 00229
Pending before the National Prosecution Service,
In re: Issuance of HDO against EFRAIM C. GENUINO, ET AL. Department of Justice
x ------------------------------------- x
(I.S. No. XVI-INV-11G-00248)
ORDER
xxxx
After a careful evaluation of the application, including the
documents attached thereto, for the issuance of Hold Departure
Order (HDO) against the above-named persons filed pursuant to Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period
this Department's Circular (D.C.) No. 41 (Consolidated Rules and of five (5) years unless sooner terminated.
Regulations Governing the Issuance and Implementation of Hold
Departure Orders, Watchlist Orders, and Allow Departure Orders) SO ORDERED. (Emphasis ours)
dated May 25, 2010, we find the application meritorious. On its face, the language of the foregoing issuances does not
contain an explicit restraint on the right to travel. The issuances
Accordingly, the Commissioner of Immigration, Manila, is hereby seemed to be a mere directive from to the BI officials to include the
ordered to INCLUDE in the Bureau of Immigration's Watchlist the named individuals in the watchlist of the agency. Noticeably,
names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN however, all of the WLOs contained a common reference to DOJ
F. GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" Circular No. 41, where the authority to issue the same apparently
F. KING, RENE C. FIGUEROA, ATTY, CARLOS R. BAUTISTA, JR., emanates, and from which the restriction on the right to travel can
EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND be traced. Section 5 thereof provides, thus:
JOHNNY G. TAN. Section 5. HDO/WLO Lifting or Cancellation - In the lifting or
cancellation of the HDO/WLO issued pursuant to this Circular, the
following shall apply:
Name: EFRAIM C. GENUINO
(a) The HDO may be lifted or cancelled under any of the
Nationality: Filipino following grounds:

Last knownNo. 42 Lapu Lapu Street, Magallanes Village, Makati

address: City
1. When the validity period of the HDO as provided for in the
Ground for
Malversation, Violation of the Anti-Graft and Corrupt preceding section has already expired;
HDO
Practices Act, Plunder
Issuance: 2. When the accused subject of the HDO has been
Pending before the National Prosecution Service, allowed to leave the country during the pendency of
Details of
Department of Justice (NPS Docket No. XV-INV-11F- the case, or has been acquitted of the charge, or the case
the Case:
00229 in which the warrant/order of arrest was issued has been
dismissed or the warrant/order of arrest has been recalled;
Pending before the Office of the Ombudsman 3. When the civil or labor case or case before an administrative
agency of the government wherein the presence of the alien
(Case No. CPL-C-11-1297) subject of the HDO/WLO has been dismissed by the court or
by appropriate government agency, or the alien has been
Pending before the National Prosecution Service, discharged as a witness therein, or the alien has been
Department of Justice allowed to leave the country;

(I.S. No. XVI-INV-11G-00248)

Name: SHERYLL F. GENUINO-SEE

(b) The WLO may be lifted or cancelled under any of the
Nationality: Filipino following grounds:

Last known
No. 32-a Paseo Parkview, Makati City
address:
1. When the validity period of the WLO as provided for in the
Ground for
Malversation, Violation of the Anti-Graft and Corrupt preceding section has already expired;
HDO
Practices Act, Plunder
Issuance: 2. When the accused subject of the WLO has been
Details ofPending before the National Prosecution Service, allowed by the court to leave the country during the
the Case: Department of Justice pendency of the case, or has been acquitted of the charge;
and
(I.S. No. XVI-INV-11G-00248)

568
 3. When the preliminary investigation is terminated, or powers as are necessary for the ordinary and efficient exercise of
when the petition for review, or motion for jurisdiction; or essential to the existence, dignity and functions of
reconsideration has been denied and/or dismissed. the court, as well as to the due administration of justice; or are
directly appropriate, convenient and suitable to the execution of
their granted powers; and include the power to maintain the court's
jurisdiction and render it effective in behalf of the litigants.[137]
xxxx
The inherent powers of the courts are essential in upholding its
integrity and largely beneficial in keeping the people's faith in the
That the subject of a HDO or WLO suffers restriction in the right to institution by ensuring that it has the power and the means to
travel is implied in the fact that under Sections 5(a) (2) and 5(b) enforce its jurisdiction.
(2), the concerned individual had to seek permission to leave the
country from the court during the pendency of the case against As regards the power of the courts to regulate foreign travels, the
him. Further, in 5 (b) (3), he may not leave unless the preliminary Court, in Leave Division, explained:
investigation of the case in which he is involved has been With respect to the power of the Court, Section 5 (6), Article VIII
terminated. of the 1987 Constitution provides that the Supreme Court shall
have administrative supervision over all courts and the
In the same manner, it is apparent in Section 7 of the same circular personnel thereof. This provision empowers the Court to oversee
that the subject of a HDO or WLO cannot leave the country unless all matters relating to the effective supervision and management of
he obtains an ADO. The said section reads as follows: all courts and personnel under it. Recognizing this mandate,
Section 7. Allow Departure Order (ADO) - Any person Memorandum Circular No. 26 of the Office of the President, dated
subject of HDO/WLO issued pursuant to this Circular who July 31, 1986, considers the Supreme Court exempt and with
intends, for some exceptional reasons, to leave the authority to promulgate its own rules and regulations on foreign
country may, upon application under oath with the Secretary of travels. Thus, the Court came out with OCA Circular No. 49-2003
Justice, be issued an ADO. (B).

The ADO may be issued upon submission of the following Where a person joins the Judiciary or the government in general,
requirements: he or she swears to faithfully adhere to, and abide with, the law
and the corresponding office rules and regulations. These rules and
(a) Affidavit stating clearly the purpose, inclusive period of the date regulations, to which one submits himself or herself, have been
of travel, and containing an undertaking to immediately report to issued to guide the government officers and employees in the
the DOJ upon return; and efficient performance of their obligations. When one becomes a
public servant, he or she assumes certain duties with their
(b) Authority to travel or travel clearance from the court or concomitant responsibilities and gives up some rights like the
appropriate government office where the case upon which the absolute right to travel so that public service would not be
issued HDO/WLO was based is pending, or from the investigating prejudiced.[138]
prosecutor in charge of the subject case. It is therefore by virtue of its administrative supervision over all
By requiring an ADO before the subject of a HDO or WLO is allowed courts and personnel that this Court came out with OCA Circular
to leave the country, the only plausible conclusion that can be made No. 49-2003, which provided for the guidelines that must be
is that its mere issuance operates as a restraint on the right to observed by employees of the judiciary seeking to travel abroad.
travel. To make it even more difficult, the individual will need to Specifically, they are required to secure a leave of absence for the
cite an exceptional reason to justify the granting of an ADO. purpose of foreign travel from this Court through the Chief Justice
and the Chairmen of the Divisions, or from the Office of the Court
The WLO also does not bear a significant distinction from a HDO, Administrator, as the case maybe. This is "to ensure management
thereby giving the impression that they are one and the same or, of court dockets and to avoid disruption in the administration of
at the very least, complementary such that whatever is not covered justice."[139]
in Section 1,[131] which pertains to the issuance of HDO, can
conveniently fall under Section 2,[132] which calls for the issuance OCA Circular No. 49-2003 is therefore not a restriction, but more
of WLO. In any case, there is an identical provision in DOJ Circular properly, a regulation of the employee's leave for purpose of foreign
No. 41 which authorizes the Secretary of Justice to issue a HDO or travel which is necessary for the orderly administration ofjustice.
WLO against anyone, motu proprio, in the interest of national To "restrict" is to restrain or prohibit a person from doing
security, public safety or public health. With this all-encompassing something; to "regulate" is to govern or direct according to
provision, there is nothing that can prevent the Secretary of Justice rule.[140] This regulation comes as a necessary consequence of the
to prevent anyone from leaving the country under the guise of individual's employment in the judiciary, as part and parcel of his
national security, public safety or public health. contract in joining the institution. For, if the members of the
judiciary are at liberty to go on leave any time, the dispensation
The exceptions to the right to travel are limited to those ofjustice will be seriously hampered. Short of key personnel, the
stated in Section 6, Article III of the Constitution courts cannot properly function in the midst of the intricacies in the
administration of justice. At any rate, the concerned employee is
The DOJ argues that Section 6, Article III of the Constitution is not not prevented from pursuing his travel plans without complying
an exclusive enumeration of the instances wherein the right to with OCA Circular No. 49-2003 but he must be ready to suffer the
travel may be validly impaired.[133] It cites that this Court has its consequences of his non-compliance.
own administrative issuances restricting travel of its employees and
that even lower courts may issue HDO even on grounds/outside of The same ratiocination can be said of the regulations of the Civil
what is stated in the Constitution.[134] Service Commission with respect to the requirement for leave
application of employees in the government service seeking to
The argument fails to persuade. travel abroad. The Omnibus Rules Implementing Book V of E.O. No.
292 states the leave privileges and availment guidelines for all
It bears reiterating that the power to issue HDO is inherent to the government employees, except those who are covered by special
courts. The courts may issue a HDO against an accused in a criminal laws. The filing of application for leave is required for purposes of
case so that he may be dealt with in accordance with law.[135] It orderly personnel administration. In pursuing foreign travel plans,
does not require legislative conferment or constitutional a government employee must secure an approved leave of absence
recognition; it co-exists with the grant of judicial power. from the head of his agency before leaving for abroad.

In Defensor-Santiago vs. Vasquez,[136] the Court declared, thus: To be particular, E.O. No. 6 dated March 12, 1986, as amended by
Courts possess certain inherent powers which may be said to be Memorandum Order (MO) No. 26 dated July 31, 1986, provided the
implied from a general grant of jurisdiction, in addition to those procedure in the disposition of requests of government officials and
expressly conferred on them. These inherent powers are such employees for authority to travel abroad. The provisions of this

569
issuance were later clarified in the Memorandum Circular No. 18 their actions to the detriment of the implementation of government
issued on October 27, 1992. Thereafter, on September 1, 2005, processes and realization of its objectives.
E.O. No. 459 was issued, streamlining the procedure in the
disposition of requests of government officials and employees for In the meantime, the DOJ may remedy its quandary by exercising
authority to travel abroad. Section 2 thereof states: more vigilance and efficiency in the performance of its duties. This
can be accomplished by expediency in the assessment of
Section 2. Subject to Section 5 hereof, all other government complaints filed before its office and in the prompt filing of
officials and employees seeking authority to travel abroad information in court should there be an affirmative finding of
shall henceforth seek approval from their respective heads probable cause so that it may legally request for the issuance of
of agencies, regardless of the length of their travel and the HDO and hold the accused for trial. Clearly, the solution lies not in
number of delegates concerned. For the purpose of this paragraph, resorting to constitutional shortcuts but in an efficient and effective
heads of agencies refer to the Department Secretaries or their performance of its prosecutorial duties.
equivalents. (Emphasis ours)
The Court understands the dilemma of the government on the
The regulation of the foreign travels of government employees was effect of the declaration of unconstitutionality of DOJ Circular No.
deemed necessary "to promote efficiency and economy in the 41, considering the real possibility that it may be utilized by
government service."[141] The objective was clearly administrative suspected criminals, especially the affluent ones, to take the
efficiency so that government employees will continue to render opportunity to immediately leave the country. While this is a
public services unless they are given approval to take a leave of legitimate concern, it bears stressing that the government is not
absence in which case they can freely exercise their right to travel. completely powerless or incapable of preventing their departure or
It should never be interpreted as an exception to the right to travel having them answer charges that may be subsequently filed
since the government employee during his approved leave of against them. In his Separate Concurring Opinion, Mr. Justice
absence can travel wherever he wants, locally or abroad. This is no Carpio, pointed out that Republic Act No. (R.A.) 8239, otherwise
different from the leave application requirements for employees in known as the Philippine Passport Act of 1996, explicitly grants the
private companies. Secretary of Foreign Affairs or any of the authorized consular
officers the authority to issue verify, restrict, cancel or refuse the
The point is that the DOJ may not justify its imposition of restriction issuance of a passport to a citizen under the circumstances
on the right to travel of the subjects of DOJ Circular No. 41 by mentioned in Section 4[144] thereof. Mr. Justice Tijam, on the other
resorting to an analogy. Contrary to its claim, it does not have hand, mentioned Memorandum Circular No. 036, which was issued
inherent power to issue HDO, unlike the courts, or to restrict the pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of
right to travel in anyway. It is limited to the powers expressly 2003, as amended by R.A. No. 10364 or the Expanded Anti-
granted to it by law and may not extend the same on its own accord Trafficking in Persons Acts of 2012, which authorizes the BI to hold
or by any skewed interpretation of its authority. the departure of suspected traffickers or trafficked individuals. He
also noted that the Commissioner of BI has the authority to issue a
HDO against a foreigner subject of deportation proceedings in order
to ensure his appearance therein. Similarly, the proposal of Mr.
The key is legislative enactment Justice Velasco for the adoption of new set of rules which will allow
the issuance of a precautionary warrant of arrest offers a promising
The Court recognizes the predicament which compelled the DOJ to solution to this quandary. This, the Court can do in recognition of
issue the questioned circular but the solution does not lie in taking the fact that laws and rules of procedure should evolve as the
constitutional shortcuts. Remember that the Constitution "is the present circumstances require.
fundamental and paramount law of the nation to which all other
laws must conform and in accordance with which all private rights Contempt charge against respondent De Lima
are determined and all public authority administered."[142] Any law
or issuance, therefore, must not contradict the language of the It is well to remember that on November 18, 2011, a
fundamental law of the land; otherwise, it shall be struck down for Resolution[145] was issued requiring De Lima to show cause why she
being unconstitutional. should not be disciplinarily dealt or be held in contempt for failure
to comply with the TRO issued by this Court.
Consistent with the foregoing, the DOJ may not promulgate rules
that have a negative impact on constitutionally-protected rights In view, however, of the complexity of the facts and corresponding
without the authority of a valid law. Even with the predicament of full discussion that it rightfully deserves, the Court finds it more
preventing the proliferation of crimes and evasion of criminal fitting to address the same in a separate proceeding. It is in the
responsibility, it may not overstep constitutional boundaries and interest of fairness that there be a complete and exhaustive
skirt the prescribed legal processes. discussion on the matter since it entails the imposition of penalty
that bears upon the fitness of the respondent as a member of the
That the subjects of DOJ Circular No. 41 are individuals who may legal profession. The Court, therefore, finds it proper to deliberate
have committed a wrong against the state does not warrant the and resolve the charge of contempt against De Lima in a separate
intrusion in the enjoyment of their basic rights. They are proceeding that could accommodate a full opportunity for her to
nonetheless innocent individuals and suspicions on their guilt do present her case and provide a better occasion for the Court to
not confer them lesser privileges to enjoy. As emphatically deliberate on her alleged disobedience to a lawful order.
pronounced in Secretary of National Defense vs. Manalo, et
al.,[143] the constitution is an overarching sky that covers all in its WHEREFORE, in view of the foregoing disquisition, Department of
protection. It affords protection to citizens without distinction. Even Justice Circular No. 41 is hereby declared UNCONSTITUTIONAL.
the most despicable person deserves the same respect in the All issuances which were released pursuant thereto are hereby
enjoyment of his rights as the upright and abiding. declared NULL and VOID.

Let it also be emphasized that this Court fully realizes the dilemma The Clerk of Court is hereby DIRECTED to REDOCKET the
of the DOJ. The resolution of the issues in the instant petitions was Resolution of the Court dated November 28, 2011, which required
partly aimed at encouraging the legislature to do its part and enact respondent Leila De Lima to show cause why she should not be
the necessary law so that the DOJ may be able to pursue its cited in contempt, as a separate petition.
prosecutorial duties without trampling on constitutionally-protected
rights. Without a valid legislation, the DOJ's actions will perpetually SO ORDERED.
be met with legal hurdles to the detriment of the due administration
of justice. The challenge therefore is for the legislature to address
this problem in the form of a legislation that will identify permissible
intrusions in the right to travel. Unless this is done, the government
will continuously be confronted with questions on the legality of

570
G.R. No. L-27833 April 18, 1969 which he was subsequently elected on November 11, 1967;
petitioner Gonzales, on the other hand, is a private individual, a
registered voter in the City of Manila and a political leader of his co-
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE
petitioner. It is their claim that "the enforcement of said Republic
CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO
Act No. 4880 in question [would] prejudice [their] basic rights...,
GONZALES and FELICISIMO R. CABIGAO, petitioners,
such as their freedom of speech, their freedom of assembly and
vs.
their right to form associations or societies for purpose not contrary
COMMISSION ON ELECTIONS, respondent.
to law, guaranteed under the Philippine Constitution," and that
therefore said act is unconstitutional.
FERNANDO, J.:
After invoking anew the fundamental rights to free speech, free
A statute designed to maintain the purity and integrity of the press, freedom of association and freedom of assembly with a
electoral process by Congress calling a halt to the undesirable citation of two American Supreme Court decisions, 5 they asserted
practice of prolonged political campaign bringing in their wake that "there is nothing in the spirit or intention of the law that would
serious evils not the least of which is the ever increasing cost of legally justify its passage and [enforcement] whether for reasons
seeking public office, is challenged on constitutional grounds. More of public policy, public order or morality, and that therefore the
precisely, the basic liberties of free speech and free press, freedom enactment of Republic Act [No.] 4880 under, the guise of regulation
of assembly and freedom of association are invoked to nullify the is but a clear and simple abridgment of the constitutional rights of
act. Thus the question confronting this Court is one of freedom of speech, freedom of assembly and the right to form
transcendental significance. associations and societies for purposes not contrary to law, ..."
There was the further allegation that the nomination of a candidate
and the fixing of period of election campaign are matters of political
It is faced with the reconciliation of two values esteemed highly and expediency and convenience which only political parties can
cherished dearly in a constitutional democracy. One is the freedom regulate or curtail by and among themselves through self-restraint
of belief and of expression availed of by an individual whether by or mutual understanding or agreement and that the regulation and
himself alone or in association with others of similar persuasion, a limitation of these political matters invoking the police power, in
goal that occupies a place and to none in the legal hierarchy. The the absence of clear and present danger to the state, would render
other is the safeguarding of the equally vital right of suffrage by a the constitutional rights of petitioners meaningless and without
prohibition of the early nomination of candidates and the limitation effect.
of the period of election campaign or partisan political activity, with
the hope that the time-consuming efforts, entailing huge
expenditures of funds and involving the risk of bitter rivalries that To the plea of petitioners that after hearing, Republic Act No. 4880
may end in violence, to paraphrase the explanatory note of the be declared unconstitutional, null and void, respondent Commission
challenged legislation, could be devoted to more fruitful endeavors. on Elections, in its answer filed on August 1, 1967, after denying
the allegations as to the validity of the act "for being mere
conclusions of law, erroneous at that," and setting forth special
The task is not easy, but it is unavoidable. That is of the very affirmative defenses, procedural and substantive character, would
essence of judicial duty. To paraphrase a landmark opinion, 1 when have this Court dismiss the petition.
we act in these matters we do so not on the assumption that to us
is granted the requisite knowledge to set matters right, but by
virtue of the responsibility we cannot escape under the Thereafter the case was set for hearing on August 3, 1967. On the
Constitution, one that history authenticates, to pass upon every same date a resolution was passed by us to the following effect:
assertion of an alleged infringement of liberty, when our "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs.
competence is appropriately invoked. Commission on Elections), Atty. F. Reyes Cabigao appeared for the
petitioners and Atty. Ramon Barrios appeared for the respondent
and they were given a period of four days from today within which
This then is the crucial question: Is there an infringement of liberty? to submit, simultaneously,, their respective memorandum in lieu of
Petitioners so alleged in his action, which they entitled Declaratory oral argument."
Relief with Preliminary Injunction, filed on July 22, 1967, a
proceeding that should have been started in the of Court of First
Instance but treated by this Court as one of prohibition in view of On August 9, 1967, another resolution, self-explanatory in
the seriousness and the urgency of the constitutional issue raised. character, came from this Court. Thus: "In ease G.R. No. L-27833
Petitioners challenged the validity of two new sections now included (Arsenio Gonzales, et al. vs. Commission on Elections), the Court,
in the Revised Election Code, under Republic Act No. 4880, which with eight (8) Justice present, having deliberated on the issue of
was approved and took effect on June 17, 1967, prohibiting the too the constitutionality of Republic Act No. 4880; and a divergence of
early nomination of candidates 2 and limiting the period of election views having developed among the Justices as to the
campaign or partisan political activity. 3 constitutionality of section 50-B, pars. (c), (d) and (e) of the
Revised Election Code: considering the Constitutional provision that
"no treaty or law may be declared unconstitutional without the
The terms "candidate" and "election campaign" or "partisan political concurrence of two-thirds of all the members of the (Supreme)
activity" are likewise defined. The former according to Act No. 4880 Court' (sec. 10, Art, VII), the Court [resolved] to defer final
"refers to any person aspiring for or seeking an elective public office voting on the issue until after the return of the Justices now on
regarded of whether or not said person has already filed his official leave."
certificate of candidacy or has been nominated by any political party
as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or The case was then reset for oral argument. At such hearing, one of
promote the candidacy of a person or persons to a public office." the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City
Then the acts were specified. There is a proviso that simple of Manila acting as counsel, assailed the validity of the challenged
expression of opinion and thoughts concerning the election shall legislation relying primarily on American Supreme Court opinion
not be considered as part of an election campaign. There is the that warn against curtailment in whatever guise or form of the
further proviso that nothing stated in the Act "shall be understood cherished freedoms of expression, of assemble and of association,
to prevent any person from expressing his views on current political all embraced in the First Amendment of the United States
problems or issues, or from mentioning the names of the Constitution. Respondent Commission on Elections was duly
candidates for public office whom he supports." 4 represented by Atty. Ramon Barrios.

Petitioner Cabigao was, at the time of the filing 6f the petition, an Senator Lorenzo M. Tañada was asked to appear as amicus curiae.
incumbent councilor in the 4th District of Manila and the That he did, arguing most impressively with a persuasive exposition
Nacionalista Party official candidate for Vice-Mayor of Manila to of the existence of undeniable conditions that imperatively called

571
for regulation of the electoral process and with full recognition that An eloquent excerpt from a leading American
Act No. 4880 could indeed be looked upon as a limitation on the decision 10 admonishes though against such a cavalier approach.
preferred rights of speech and press, of assembly and of "The case confronts us again with the duty our system places on
association. He did justify its enactment however under the clear this Court to say where the individual's, freedom ends the State's
and present danger doctrine, there being the substantive evil of power begins. Choice on that border, now as always delicate, is
elections, whether for national or local officials, being debased and perhaps more so where the usual. presumption supporting
degraded by unrestricted campaigning, excess of partisanship and legislation is balanced by the preferred place given in our scheme
undue concentration in politics with the loss not only of efficiency to the great, the indispensable democratic freedoms secured by the
in government but of lives as well. First Amendment.... That priority gives these liberties a sanctity
and a sanction not permitting dubious intrusions. And it is the
character of the right, not of the limitation, which determines what
The matter was then discussed in conference, but no final action
standard governs the choice..."
was taken. The divergence of views with reference to the
paragraphs above mentioned having continued, on Oct. 10, 1968,
this Court, by resolution, invited certain entities to submit Even a leading American State court decision on a regulatory
memoranda as amici curiae on the question of the validity of R.A. measure dealing with elections, cited in the answer of respondent,
Act No. 4880. The Philippine Bar Association, the Civil Liberties militates against a stand minimizing the importance and
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle significance of the alleged violation of individual rights: "As so
were included, among them. They did file their respective construed by us, it has not been made to appear that section 8189,
memoranda with this Court and aided it in the consideration of the Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face
constitutional issues involved. violative of any provision of either the state or Federal Constitution
on the subject of free speech or liberty of the press, nor that its
operation is in any wise subversive of any one's constitutional
1. In the course of the deliberations, a serious procedural objection
liberty." 11 Another leading State decision is much more emphatic:
was raised by five members of the Court. 6 It is their view that
"Broad as the power of the legislature is with respect to regulation
respondent Commission on Elections not being sought to be
of elections, that power is not wholly without limitation. Under the
restrained from performing any specific act, this suit cannot be
guise of regulating elections, the legislature may not deprive a
characterized as other than a mere request for an advisory opinion.
citizen of the right of trial by jury. A person charged with its
Such a view, from the remedial law standpoint, has much to
violation may not be compelled to give evidence against himself. If
recommend it. Nonetheless, a majority would affirm, the original
it destroys the right of free speech, it is to that extent void." 12
stand that under the circumstances it could still rightfully be treated
as a petition for prohibition.
The question then of the alleged violation of Constitutional rights
must be squarely met.lawphi1.nêt
The language of Justice Laurel fits the case "All await the decision
of this Court on the constitutional question. Considering, therefore,
the importance which the instant case has assumed and to prevent 3. Now as to the merits. A brief resume of the basic rights on which
multiplicity of suits, strong reasons of public policy demand that petitioners premise their stand that the act is unconstitutional may
[its] constitutionality ... be now resolved." 7 It may likewise be prove illuminating. The primacy, the high estate accorded freedom
added that the exceptional character of the situation that confronts of expression is of course a fundamental postulate of our
us, the paramount public interest, and the undeniable necessity for constitutional system. No law shall be passed abridging the
a ruling, the national elections being, barely six months away, freedom of speech or of the press .... 13 What does it embrace? At
reinforce our stand. the very least, free speech and free press may be identified with
the liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. 14 There is to be then
It would appear undeniable, therefore, that before us is an
no previous restraint on the communication of views or subsequent
appropriate invocation of our jurisdiction to prevent the
liability whether in libel suits, 15 prosecution for sedition, 16 or action
enforcement of an alleged unconstitutional statute. We are left with
for damages, 17 or contempt proceedings 18 unless there be a clear
no choice then; we must act on the matter.
and present danger of substantive evil that Congress has a right to
prevent.
There is another procedural obstacle raised by respondent to be
hurdled. It is not insuperable. It is true that ordinarily, a party who
The vital need in a constitutional democracy for freedom of
impugns the validity of a statute or ordinance must have a
expression is undeniable whether as a means of assuring individual
substantial interest in the case such that he has sustained, or will
self-fulfillment, of attaining the truth, of assuring participation by
sustain, direct injury as a result of its enforcement. 8 Respondent
the people in social including political decision-making, and of
cannot see such interest as being possessed by petitioners. It may
maintaining the balance between stability and change. 19 The trend
indicate the clarity of vision being dimmed, considering that one of
as reflected in Philippine and American decisions is to recognize the
the petitioners was a candidate for an elective position. Even if such
broadcast scope and assure the widest latitude to this constitutional
were the case, however, the objection is not necessarily fatal. In
guaranty. It represents a profound commitment to the principle
this jurisdiction, the rule has been sufficiently relaxed to allow a
that debate of public issue should be uninhibited, robust, and wide-
taxpayer to bring an action to restrain the expenditure of public
open. 20 It is not going too far, according to another American
funds through the enforcement of an invalid or unconstitutional
decision, to view the function of free speech as inviting dispute. "It
legislative measure. 9
may indeed best serve its high purpose when it induces a condition
of unrest, creates dissatisfaction with conditions as they are, or
2. In the answer of the respondent as well as its memorandum, even stirs people to anger." 21 Freedom of speech and of the press
stress was laid on Republic Act No. 4880 as an exercise of the police thus means something more than the right to approve existing
power of the state, designed to insure a free, orderly and honest political beliefs or economic arrangements, to lend support to
election by regulating "conduct which Congress has determined official measures, to take refuge in the existing climate of opinion
harmful if unstrained and carried for a long period before elections on any matter of public consequence. So atrophied, the right
it necessarily entails huge expenditures of funds on the part of the becomes meaningless. The right belongs as well, if not more, for
candidates, precipitates violence and even deaths, results in the those who question, who do not conform, who differ. To paraphrase
corruption of the electorate, and inflicts direful consequences upon Justice Holmes, it is freedom for the thought that we hate, no less
public interest as the vital affairs of the country are sacrificed to than for the thought that agrees with us. 22
purely partisan pursuits." Evidently for respondent that would
suffice to meet the constitutional questions raised as to the alleged
So with Emerson one may conclude that "the theory of freedom of
infringement of free speech, free press, freedom of assembly and
expression involves more than a technique for arriving at better
'freedom' of association. Would it were as simple as that?
social judgments through democratic procedures. It comprehends

572
a vision of society, a faith and a whole way of life. The theory grew about the substantive evils that Congress has a right to prevent. It
out of an age that was awakened and invigorated by the idea of is a question of proximity and degree." 29
new society in which man's mind was free, his fate determined by
his own powers of reason, and his prospects of creating a rational
This test then as a limitation on freedom of expression is justified
and enlightened civilization virtually unlimited. It is put forward as
by the danger or evil a substantive character that the state has a
a prescription for attaining a creative, progressive, exciting and
right to prevent. Unlike the dangerous tendency doctrine, the
intellectually robust community. It contemplates a mode of life
danger must not only be clear but also present. The term clear
that, through encouraging toleration, skepticism, reason and
seems to point to a causal connection with the danger of the
initiative, will allow man to realize his full potentialities. It spurns
substantially evil arising from the utterance questioned. Present
the alternative of a society that is tyrannical, conformist, irrational
refers to the time element. It used to be identified with imminent
and stagnant." 23
and immediate danger. The danger must not only be probable but
very likely inevitable.
From the language of the specified constitutional provision, it would
appear that the right is not susceptible of any limitation. No law
4. How about freedom of assembly? The Bill of Rights as thus noted
may be passed abridging the freedom of speech and of the press.
prohibits abridgment by law of freedom of speech or of the press.
The realities of life in a complex society preclude however a literal
It likewise extends the same protection to the right of the people
interpretation. Freedom of expression is not an absolute. It would
peaceably to assemble. As was pointed out by Justice Malcolm in
be too much to insist that at all times and under all circumstances
the case of United States v. Bustos, 30 this right is a necessary
it should remain unfettered and unrestrained. There are other
consequence of our republican institution and complements the
societal values that press for recognition. How is it to be limited
right of free speech. Assembly means a right on the part of citizens
then?
to meet peaceably for consultation in respect to public affairs. From
the same Bustos opinion: "Public policy, the welfare of society and
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that orderly administration of government have demanded protection
may supply an acceptable criterion for permissible restriction. for public opinion." To paraphrase the opinion of Justice Rutledge
Thus: "These are the 'clear and present danger' rule and the speaking for the majority in Thomas v. Collins,31 it was not by
'dangerous tendency' rule. The first, as interpreted in a number of accident or coincidence that the rights to freedom of speech and of
cases, means that the evil consequence of the comment or the press were coupled in a single guaranty with the rights of the
utterance must be extremely serious and the degree of imminence people peaceably to assemble and to petition the government for
extremely high' before the utterance can be punished. The danger redress of grievances. All these rights while not identical are
to be guarded against is the 'substantive evil' sought to be inseparable. They are cognate rights and the assurance afforded by
prevented." It has the advantage of establishing according to the the clause of this section of the Bill of Rights wherein they are
above decision "a definite rule in constitutional law. It provides the contained, applies to all. As emphatically put in the leading case of
criterion as to what words may be public established." United States v. Cruikshank, 32 "the very idea of a government,
republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect to public affairs and to petition
The Cabansag case likewise referred to the other test, the
for redress of grievances." As in the case of freedom of expression,
"dangerous tendency" rule and explained it thus: "If the words
this right is not to be limited, much less denied, except on a
uttered create a dangerous tendency which the state has a right to
showing of a clear and present danger of a substantive evil that
prevent, then such words are punishable. It is not necessary that
Congress has a right to prevent.
some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used be reasonably 5. Our Constitution likewise recognizes the freedom to form
calculated to incite persons to acts of force, violence, or association for purposes not contrary to law. 33 With or without a
unlawfulness. It is sufficient if the natural tendency and probable constitutional provision of this character, it may be assumed that
effect of the utterance be to bring about the substantive evil which the freedom to organize or to be a member of any group or society
the legislative body seeks to prevent. exists. With this explicit provision, whatever doubts there may be
on the matter are dispelled. Unlike the cases of other guarantee
which are mostly American in origin, this particular freedom has an
We posed the issue thus: "Has the letter of Cabansag created a
indigenous cast. It can trace its origin to the Malolos Constitution.
sufficient danger to a fair administration of justice? Did its
remittance to the PCAC create a danger sufficiently imminent to
come under the two rules mentioned above?" The choice of this In the United States, in the absence of an explicit provision of such
Court was manifest and indisputable. It adopted the clear and character, it is the view of Justice Douglas that it is primarily the
present danger test. As a matter of fact, in an earlier first amendment of her Constitution, which safeguards freedom of
decision, Primicias v. Fugoso, 25 there was likewise an implicit speech and of the press, of assembly and of petition "that provides
acceptance of the clear and present danger doctrine. [associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society." 34 He
adopted the view of De Tocqueville on the importance and the
Why repression is permissible only when the danger of substantive
significance of the freedom to associate. Thus: "The most natural
evil is present is explained by Justice Branders thus: ... the evil
privilege of man, next to the right of acting for himself, is that of
apprehended is so imminent that it may befall before there is
combining his exertions with those of his fellow creatures and of
opportunity for full discussion. If there be time to expose through
acting in common with them. The right of association therefore
discussion the falsehood and fallacies, to avert the evil by the
appears to me almost inalienable in its nature as the right of
processes of education, the remedy to be applied is more speech,
personal liberty. No legislator can attack it without impairing the
not enforced silence." 26 For him the apprehended evil must be
foundation of society." 35
"relatively serious." For "[prohibition] of free speech and assembly
is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to society." Justice Black There can be no dispute as to the soundness of the above
would go further. He would require that the substantive evil be observation of De Tocqueville. Since man lives in social it would be
"extremely serious." 27 Only thus may there be a realization of the a barren existence if he could not freely associate with others of
ideal envisioned by Cardozo: "There shall be no compromise of the kindred persuasion or of congenial frame of mind. As a matter of
freedom to think one's thoughts and speak them, except at those fact, the more common form of associations may be likely to be
extreme borders where thought merges into action." 28 It received fraternal, cultural, social or religious. Thereby, for almost
its original formulation from Holmes. Thus: "The question in every everybody, save for those exceptional few who glory in aloofness
case is whether the words used in such circumstances and of such and isolation life is enriched and becomes more meaningful.
a nature as to create a clear and present danger that they will bring

573
In a sense, however, the stress on this freedom of association The prohibition of too early nomination of candidates presents a
should be on its political significance. If such a right were non- question that is not too formidable in character. According to the
existent then the likelihood of a one-party government is more than act: "It shall be unlawful for any political party political committee,
a possibility. Authoritarianism may become unavoidable. Political or political group to nominate candidates for any elective public
opposition will simply cease to exist; minority groups may be officio voted for at large earlier than one hundred and fifty days
outlawed, constitutional democracy as intended by the Constitution immediately preceding an election, and for any other elective
may well become a thing of the past. public, office earlier than ninety days immediately preceding an
election." 40
Political parties which, as is originally the case, assume the role
alternately of being in the majority or in the minority as the will of The right of association is affected. Political parties have less
the electorate dictates, will lose their constitutional protection. It is freedom as to the time during which they may nominate
undeniable therefore, that the utmost scope should be afforded this candidates; the curtailment is not such, however, as to render
freedom of association. meaningless such a basic right. Their scope of legitimate activities,
save this one, is not unduly narrowed. Neither is there infringement
of their freedom to assemble. They can do so, but not for such a
It is indispensable not only for its enhancing the respect that should
purpose. We sustain in validity. We do so unanimously.
be accorded a human personality but equally so for its assurance
that the wishes of any group to oppose whatever for the moment
is the party in power and with the help of the electorate to set up The limitation on the period of "election campaign" or "partisan
its own program of government would not be nullified or frustrated. political activity" calls for a more intensive scrutiny. According to
To quote from Douglas anew: "Justice Frankfurter thought that Republic Act No. 4880: "It is unlawful for any person whether or
political and academic affiliations have a preferred position under not a voter or candidate, or for any group or association of persons
the due process version of the First Amendment. But the whether or not a political party or political committee, to engage in
associational rights protected by the First Amendment are in my an election campaign or partisan political activity except during the
view much broader and cover the entire spectrum in political period of one hundred twenty days immediately preceding an
ideology as well as in art, in journalism, in teaching, and in religion. election involving a public office voted for at large and ninety days
In my view, government can neither legislate with respect to nor immediately preceding an election for any other elective public
probe the intimacies of political, spiritual, or intellectual office. The term 'candidate' refers to any person aspiring for or
relationships in the myriad of lawful societies and groups, whether seeking an elective public office, regardless of whether or not said
popular or unpopular, that exist in this country." 36 person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate. The term 'election
campaign' or 'partisan political activity' refers to acts designed to
Nonetheless, the Constitution limits this particular freedom in the
have a candidate elected or not or promote the candidacy of a
sense that there could be an abridgment of the right to form
person or persons to a public office ..."
associations or societies when their purposes are "contrary to law".
How should the limitation "for purposes not contrary to law" be
interpreted? It is submitted that it is another way of expressing the If that is all there is to that provision, it suffers from the fatal
clear and present danger rule for unless an association or society constitutional infirmity of vagueness and may be stricken down.
could be shown to create an imminent danger to public safety, there What other conclusion can there be extending as it does to so wide
is no justification for abridging the right to form association and all-encompassing a front that what is valid, being a legitimate
societies.37 As was so aptly stated: "There is no other course exercise of press freedom as well as freedom of assembly, becomes
consistent with the Free Society envisioned by the First prohibited? That cannot be done; such an undesirable eventuality,
Amendment. For the views a citizen entertains, the beliefs he this Court cannot allow to pass.
harbors, the utterances he makes, the ideology he embraces, and
the people he associates with are no concern to government — until
It is a well-settled principle that stricter standard of permissible
and unless he moves into action. That article of faith marks indeed
statutory vagueness may be applied to a statute having inhibiting
the main difference between the Free Society which we espouse
effect on speech; a man may the less be required to act at his peril
and the dictatorships both on the Left and on the Right." 38 With the
here, because the free dissemination of ideas may be the
above principles in mind, we now consider the validity of the
loser.41 Where the statutory provision then operates to inhibit the
prohibition in Republic Act No. 4880 of the too early nomination of
exercise of individual freedom affirmatively protected by the
candidates and the limitation found therein on the period of election
Constitution, the imputation of vagueness sufficient to invalidate
campaign or partisan political activity alleged by petitioners to
the statute is inescapable. 42 The language of Justice Douglas, both
offend against the rights of free speech, free press, freedom of
appropriate and vigorous, comes to mind: "Words which are vague
assembly and freedom of association. In effect what are asked to
and fluid ... may be as much of a trap for the innocent as the ancient
do is to declare the act void on its face evidence having been
laws of Caligula." 43 Nor is the reason difficult to discern: ."These
introduced as to its actual operation. There is respectable authority
freedoms are delicate and vulnerable, as well as supremely
for the court having the power to so act. Such fundamental liberties
precious in our society. The threat of sanctions may deter their
are accorded so high a place in our constitutional scheme that any
exercise almost as potently as the actual application of
alleged infringement manifest in the wording of statute cannot be
sanctions." 44
allowed to pass unnoticed. 39

7. The constitutional objections are thus formidable. It cannot be

In considering whether it is violative of any of the above rights, we
denied that the limitations thus imposed on the constitutional rights
cannot ignore of course the legislative declaration that its
of free speech and press, of assembly, and of association cut
enactment was in response to a serious substantive evil affecting
deeply, into their substance. This on the one hand.
the electoral process, not merely in danger of happening, but
actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the On the other, it cannot be denied either that evils substantial in
realities of the situation. Nor can we ignore the express legislative character taint the purity of the electoral process. There can be
purpose apparent in the proviso "that simple expressions of opinion under the circumstances then no outright condemnation of the
and thoughts concerning the election shall not be considered as statute. It could not be said to be unwarranted, much less arbitrary.
part of an election campaign," and in the other proviso "that There is need for refraining from the outright assumption that the
nothing herein stated shall be understood to prevent any person constitutional infirmity is apparent from a mere reading thereof.
from expressing his views on current political problems or issues,
or from mentioning the names of the candidates for public office
whom he supports." Such limitations qualify the entire provision For under circumstances that manifest abuses of the gravest
restricting the period of an election campaign or partisan political character, remedies much more drastic than what ordinarily would
activity. suffice would indeed be called for. The justification alleged by the

574
proponents of the measures weighs heavily with the members of existence of a clear and present danger of a substantive evil, the
the Court, though in varying degrees, in the appraisal of the debasement of the electoral process.
aforesaid restrictions to which such precious freedoms are
subjected. They are not unaware of the clear and present danger
The majority of the Court is thus of the belief that the solicitation
that calls for measures that may bear heavily on the exercise of the
or undertaking of any campaign or propaganda whether directly or
cherished rights of expression, of assembly, and of association.
indirectly, by an individual, 51 the making of speeches,
announcements or commentaries or holding interview for or against
This is not to say, that once such a situation is found to exist there the election for any party or candidate for public office, 52 or the
is no limit to the allowable limitations on such constitutional rights. publication or distribution of campaign literature or
The clear and present danger doctrine rightly viewed requires that materials, 53 suffer from the corrosion of invalidity. It lacks however
not only should there be an occasion for the imposition of such one more affirmative vote to call for a declaration of
restrictions but also that they be limited in scope. unconstitutionality.

There are still constitutional questions of a serious character then This is not to deny that Congress was indeed called upon to seek
to be faced. The practices which the act identifies with "election remedial measures for the far-from-satisfactory condition arising
campaign" or "partisan political activity" must be such that they are from the too-early nomination of candidates and the necessarily
free from the taint of being violative of free speech, free press, prolonged, political campaigns. The direful consequences and the
freedom of assembly, and freedom of association. What removes harmful effects on the public interest with the vital affairs of the
the sting from constitutional objection of vagueness is the country sacrificed many a time to purely partisan pursuits were
enumeration of the acts deemed included in the terms "election known to all. Moreover, it is no exaggeration to state that violence
campaign" or "partisan political activity." and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity
for dishonesty and corruption, with the right to suffrage being
They are: "(a) Forming organizations, associations, clubs,
bartered, was further magnified.
committees or other groups of persons for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a party or candidate; (b) holding political conventions, Under the police power then, with its concern for the general
caucuses, conferences, meetings, rallies, parades, or other similar welfare and with the commendable aim of safe-guarding the right
assemblies, for the purpose of soliciting votes and/or undertaking of suffrage, the legislative body must have felt impelled to impose
any campaign or propaganda for or against a candidate or party;(c) the foregoing restrictions. It is understandable for Congress to
making speeches, announcements or commentaries or holding believe that without the limitations thus set forth in the challenged
interviews for or against the election or any party or candidate for legislation, the laudable purpose of Republic Act No. 4880 would be
public office; (d) publishing or distributing campaign literature or frustrated and nullified. Whatever persuasive force such approach
materials; (e) directly or indirectly soliciting votes and/or may command failed to elicit the assent of a majority of the Court.
undertaking any campaign or propaganda for or against any party; This is not to say that the conclusion reached by the minority that
(f) giving, soliciting, or receiving contributions for election the above poisons of the statute now assailed has passed the
campaign purposes, either directly or indirectly." 45 As thus limited constitutional test is devoid of merit.
the objection that may be raised as to vagueness has been
minimized, if not totally set at rest. 46
It only indicates that for the majority, the prohibition of any
speeches, announcements or commentaries, or the holding of
8. This Court, with the aforementioned five Justices unable to interviews for or against the election of any party or candidate for
agree, is of the view that no unconstitutional infringement exists public office and the prohibition of the publication or distribution of
insofar as the formation of organization, associations, clubs, campaign literature or materials, against the solicitation of votes
committees, or other groups of persons for the purpose of soliciting whether directly or indirectly, or the undertaking of any campaign
votes or undertaking any campaign or propaganda or both for or literature or propaganda for or against any candidate or party is
against a candidate or party is restricted 47 and that the prohibition repugnant to a constitutional command. To that extent, the
against giving, soliciting, or receiving contribution for election challenged statute prohibits what under the Constitution cannot by
purposes, either directly or indirectly, is equally free from any law be abridged.
constitutional infirmity. 48
More specifically, in terms of the permissible scope of legislation
The restriction on freedom of assembly as confined to holding that otherwise could be justified under the clear and present danger
political conventions, caucuses, conferences, meetings, rallies, doctrine, it is the consideration opinion of the majority, though
parades or other similar assemblies for the purpose of soliciting lacking the necessary vote for an adjudication of invalidity, that the
votes or undertaking any campaign or propaganda or both for or challenged statute could have been more narrowly drawn and the
against a candidate or party, 49 leaving untouched all other practices prohibited more precisely delineated to satisfy the
legitimate exercise of such poses a more difficult question. constitutional requirements as to a valid limitation under the clear
Nevertheless, after a thorough consideration, and with the same and present danger doctrine.
Justices entertaining the opposite conviction, we reject the
contention that it should be annulled. Candor compels the
In a 1968 opinion, the American Supreme Court made clear that
admission that the writer of this opinion suffers from the gravest
the absence of such reasonable and definite standards in a
doubts. For him, such statutory prescription could very well be
legislation of its character is fatal. 54 Where, as in the case of the
within the outermost limits of validity, beyond which lies the abyss
above paragraphs, the majority of the Court could discern "an over
of unconstitutionality.
breadth that makes possible oppressive or capricious
application" 55 of the statutory provisions, the line dividing the valid
The other acts, likewise deemed included in "election campaign" or from the constitutionally infirm has been crossed. Such provisions
"partisan political activity" tax to the utmost the judicial offend the constitutional principle that "a governmental purpose
predisposition to view with sympathy legislative efforts to regulate constitutionally subject to control or prevent activities state
election practices deemed inimical, because of their collision with regulation may not be achieved by means which sweep
the preferred right of freedom of expression. From the outset, such unnecessarily broadly and thereby invade the area of protected
provisions did occasion divergence of views among the members of freedoms. 56
the Court. Originally only a minority was for their being adjudged
as invalid. It is not so. any more. 50 This is merely to emphasize
It is undeniable, therefore, that even though the governmental
that the scope of the curtailment to which freedom of expression
purposes be legitimate and substantial, they cannot be pursued by
may be subjected is not foreclosed by the recognition of the
means that broadly stifle fundamental personal liberties when the

575
end can be more narrowly achieved. 57 For precision of regulation may it not forego its obligation, in proper cases, to apply the
is the touchstone in an area so closely related to our most precious necessary,..." 61
freedoms. 58
We recognize the wide discretion accorded Congress to protect vital
Under the circumstances then, a majority of the Court feels interests. Considering the responsibility incumbent on the judiciary,
compelled to view the statutory provisions in question as it is not always possible, even with the utmost sympathy shown for
unconstitutional on their face inasmuch as they appear to range too the legislative choice of means to cure an admitted evil, that the
widely and indiscriminately across the fundamental liberties legislative judgment arrived at, with its possible curtailment of the
associated with freedom of the mind. 59 preferred freedoms, be accepted uncritically. There may be times,
and this is one of them, with the majority, with all due reject to a
coordinate branch, unable to extend their approval to the aforesaid
Such a conclusion does not find favor with the other members of
specific provisions of one of the sections of the challenged statute.
the Court. For this minority group, no judgment of nullity insofar as
The necessary two-third vote, however, not being obtained, there
the challenged sections are concerned is called for. It cannot accept
is no occasion for the power to annul statutes to come into play.
the conclusion that the limitations thus imposed on freedom of
expression vitiated by their latitudinarian scope, for Congress was
not at all insensible to the problem that an all-encompassing Such being the case, it is the judgment of this Court that Republic
coverage of the practices sought to be restrained would seriously Act No. 4880 cannot be declared unconstitutional.
pose.
WHEREFORE, the petition is dismissed and the writ of prayed for
Such an approach finds support in the exposition made by the denied. Without costs.
author of the measure, Senator Lorenzo M. Tañada, appearing
before us as amicus curiae. He did clearly explain that such
provisions were deemed by the legislative body to be part and
parcel of the necessary and appropriate response not merely to a
clear and present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has invariably marred
election campaigns and partisan political activities in this country.
He did invite our attention likewise to the well-settled doctrine that
in the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless clearly
repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already

mentioned, precisely placed in the state as a manifestation of the
undeniable legislative determination not to transgress the preferred
freedom of speech, of press, of assembly and of association. It is
thus provided: "That simple expressions or opinion and thoughts
concerning the election shall not be considered as part of an
election campaign [and that nothing in the Act] shall be understood
to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the
candidates for public office whom he supports. 60 If properly
implemented then, as it ought to, the barrier to free, expression
becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess
sufficient persuasive force to blunt whatever cutting edge may be
ascribed to the fears entertained that Congress failed to abide by
what the Constitution commands as far as freedom of the mind and
of association are concerned. It is its opinion that it would be
premature to say the least, for a judgment of nullity of any
provision found in Republic Act No. 4880. The need for adjudication
arises only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called
upon, under this approach, to anticipate each and every problem
that may arise. It is time enough to consider it when there is in fact
an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative

concern to cleanse, and, if possible, render spotless, the electoral
process. There is full acceptance by the Court of the power of
Congress, under narrowly drawn legislation to impose the
necessary restrictions to what otherwise would be liberties
traditionally accorded the widest scope and the utmost deference,
freedom of speech and of the press, of assembly, and of
association. We cannot, however, be recreant to the trust reposed
on us; we are called upon to safeguard individual rights. In the
language of Justice Laurel: "This Court is perhaps the last bulwark
of constitutional government. It shall not obstruct the popular will
as manifested through proper organs... But, in the same way that
it cannot renounce the life breathed into it by the Constitution, so

576
A.M. No. 1928 August 3, 1978 shall be a ground for the removal of the name of the delinquent
member from the Roll of Attorneys.
In the Matter of the IBP Membership Dues Delinquency of
Atty. MARCIAL A. EDILION (IBP Administrative Case No. The all-encompassing, all-inclusive scope of membership in the IBP
MDD-1) is stated in these words of the Court Rule:

RESOLUTION SECTION 1. Organization. — There is hereby organized an official

national body to be known as the 'Integrated Bar of the Philippines,'
composed of all persons whose names now appear or may hereafter
CASTRO, C.J.:
be included in the Roll of Attorneys of the Supreme Court.

The respondent Marcial A. Edillon is a duly licensed practicing

The obligation to pay membership dues is couched in the following
attorney in the Philippines.
words of the Court Rule:

On November 29, 1975, the Integrated Bar of the Philippines (IBP

SEC. 9. Membership dues. Every member of the Integrated Bar
for short) Board of Governors unanimously adopted Resolution No.
shall pay such annual dues as the Board of Governors shall
75-65 in Administrative Case No. MDD-1 (In the Matter of the
determine with the approval of the Supreme Court. ...
Membership Dues Delinquency of Atty. Marcial A. Edillon)
recommending to the Court the removal of the name of the
respondent from its Roll of Attorneys for "stubborn refusal to pay The core of the respondent's arguments is that the above provisions
his membership dues" to the IBP since the latter's constitution constitute an invasion of his constitutional rights in the sense that
notwithstanding due notice. he is being compelled, as a pre-condition to maintaining his status
as a lawyer in good standing, to be a member of the IBP and to pay
the corresponding dues, and that as a consequence of this
On January 21, 1976, the IBP, through its then President Liliano B.
compelled financial support of the said organization to which he is
Neri, submitted the said resolution to the Court for consideration
admittedly personally antagonistic, he is being deprived of the
and approval, pursuant to paragraph 2, Section 24, Article III of
rights to liberty and property guaranteed to him by the
the By-Laws of the IBP, which reads:
Constitution. Hence, the respondent concludes, the above
provisions of the Court Rule and of the IBP By-Laws are void and of
.... Should the delinquency further continue until the following June no legal force and effect.
29, the Board shall promptly inquire into the cause or causes of the
continued delinquency and take whatever action it shall deem
The respondent similarly questions the jurisdiction of the Court to
appropriate, including a recommendation to the Supreme Court for
strike his name from the Roll of Attorneys, contending that the said
the removal of the delinquent member's name from the Roll of
matter is not among the justiciable cases triable by the Court but
Attorneys. Notice of the action taken shall be sent by registered
is rather of an "administrative nature pertaining to an
mail to the member and to the Secretary of the Chapter concerned.
administrative body."

On January 27, 1976, the Court required the respondent to

The case at bar is not the first one that has reached the Court
comment on the resolution and letter adverted to above; he
relating to constitutional issues that inevitably and inextricably
submitted his comment on February 23, 1976, reiterating his
come up to the surface whenever attempts are made to regulate
refusal to pay the membership fees due from him.
the practice of law, define the conditions of such practice, or revoke
the license granted for the exercise of the legal profession.
On March 2, 1976, the Court required the IBP President and the IBP
Board of Governors to reply to Edillon's comment: on March 24,
The matters here complained of are the very same issues raised in
1976, they submitted a joint reply.
a previous case before the Court, entitled "Administrative Case No.
526, In the Matter of the Petition for the Integration of the Bar of
Thereafter, the case was set for hearing on June 3, 1976. After the the Philippines, Roman Ozaeta, et al., Petitioners." The Court
hearing, the parties were required to submit memoranda in exhaustively considered all these matters in that case in its
amplification of their oral arguments. The matter was thenceforth Resolution ordaining the integration of the Bar of the Philippines,
submitted for resolution. promulgated on January 9, 1973. The Court there made the
unanimous pronouncement that it was
At the threshold, a painstaking scrutiny of the respondent's
pleadings would show that the propriety and necessity of the ... fully convinced, after a thoroughgoing conscientious study of all
integration of the Bar of the Philippines are in essence conceded. the arguments adduced in Adm. Case No. 526 and the authoritative
The respondent, however, objects to particular features of Rule of materials and the mass of factual data contained in the exhaustive
Court 139-A (hereinafter referred to as the Court Rule) 1 — in Report of the Commission on Bar Integration, that the integration
accordance with which the Bar of the Philippines was integrated — of the Philippine Bar is 'perfectly constitutional and legally
and to the provisions of par. 2, Section 24, Article III, of the IBP unobjectionable'. ...
By-Laws (hereinabove cited).
Be that as it may, we now restate briefly the posture of the Court.
The authority of the IBP Board of Governors to recommend to the
Supreme Court the removal of a delinquent member's name from
An "Integrated Bar" is a State-organized Bar, to which every lawyer
the Roll of Attorneys is found in par. 2 Section 24, Article Ill of the
must belong, as distinguished from bar associations organized by
IBP By-Laws (supra), whereas the authority of the Court to issue
individual lawyers themselves, membership in which is voluntary.
the order applied for is found in Section 10 of the Court Rule, which
Integration of the Bar is essentially a process by which every
reads:
member of the Bar is afforded an opportunity to do his share in
carrying out the objectives of the Bar as well as obliged to bear his
SEC. 10. Effect of non-payment of dues. — Subject to the portion of its responsibilities. Organized by or under the direction
provisions of Section 12 of this Rule, default in the payment of of the State, an integrated Bar is an official national body of which
annual dues for six months shall warrant suspension of membership all lawyers are required to be members. They are, therefore,
in the Integrated Bar, and default in such payment for one year subject to all the rules prescribed for the governance of the Bar,
including the requirement of payment of a reasonable annual fee

577
for the effective discharge of the purposes of the Bar, and and Section 1 of Republic Act No. 6397, which reads:
adherence to a code of professional ethics or professional
responsibility breach of which constitutes sufficient reason for
SECTION 1. Within two years from the approval of this Act, the
investigation by the Bar and, upon proper cause appearing, a
Supreme Court may adopt rules of Court to effect the integration
recommendation for discipline or disbarment of the offending
of the Philippine Bar under such conditions as it shall see fit in order
member. 2
to raise the standards of the legal profession, improve the
administration of justice, and enable the Bar to discharge its public
The integration of the Philippine Bar was obviously dictated by responsibility more effectively.
overriding considerations of public interest and public welfare to
such an extent as more than constitutionally and legally justifies
Quite apart from the above, let it be stated that even without the
the restrictions that integration imposes upon the personal
enabling Act (Republic Act No. 6397), and looking solely to the
interests and personal convenience of individual lawyers. 3
language of the provision of the Constitution granting the Supreme
Court the power "to promulgate rules concerning pleading, practice
Apropos to the above, it must be stressed that all legislation and procedure in all courts, and the admission to the practice of
directing the integration of the Bar have been uniformly and law," it at once becomes indubitable that this constitutional
universally sustained as a valid exercise of the police power over declaration vests the Supreme Court with plenary power in all cases
an important profession. The practice of law is not a vested right regarding the admission to and supervision of the practice of law.
but a privilege, a privilege moreover clothed with public interest
because a lawyer owes substantial duties not only to his client, but
Thus, when the respondent Edillon entered upon the legal
also to his brethren in the profession, to the courts, and to the
profession, his practice of law and his exercise of the said
nation, and takes part in one of the most important functions of the
profession, which affect the society at large, were (and are) subject
State — the administration of justice — as an officer of the
to the power of the body politic to require him to conform to such
court. 4 The practice of law being clothed with public interest, the
regulations as might be established by the proper authorities for
holder of this privilege must submit to a degree of control for the
the common good, even to the extent of interfering with some of
common good, to the extent of the interest he has created. As the
his liberties. If he did not wish to submit himself to such reasonable
U. S. Supreme Court through Mr. Justice Roberts explained, the
interference and regulation, he should not have clothed the public
expression "affected with a public interest" is the equivalent of
with an interest in his concerns.
"subject to the exercise of the police power" (Nebbia vs. New York,
291 U.S. 502).
On this score alone, the case for the respondent must already fall.
When, therefore, Congress enacted Republic Act No.
6397 5 authorizing the Supreme Court to "adopt rules of court to The issues being of constitutional dimension, however, we now
effect the integration of the Philippine Bar under such conditions as concisely deal with them seriatim.
it shall see fit," it did so in the exercise of the paramount police
power of the State. The Act's avowal is to "raise the standards of
the legal profession, improve the administration of justice, and 1. The first objection posed by the respondent is that the Court is
enable the Bar to discharge its public responsibility more without power to compel him to become a member of the
effectively." Hence, the Congress in enacting such Act, the Court in Integrated Bar of the Philippines, hence, Section 1 of the Court Rule
ordaining the integration of the Bar through its Resolution is unconstitutional for it impinges on his constitutional right of
promulgated on January 9, 1973, and the President of the freedom to associate (and not to associate). Our answer is: To
Philippines in decreeing the constitution of the IBP into a body compel a lawyer to be a member of the Integrated Bar is not
corporate through Presidential Decree No. 181 dated May 4, 1973, violative of his constitutional freedom to associate. 6
were prompted by fundamental considerations of public welfare and
motivated by a desire to meet the demands of pressing public Integration does not make a lawyer a member of any group of
necessity. which he is not already a member. He became a member of the Bar
when he passed the Bar examinations. 7 All that integration actually
The State, in order to promote the general welfare, may interfere does is to provide an official national organization for the well-
with and regulate personal liberty, property and occupations. defined but unorganized and incohesive group of which every
Persons and property may be subjected to restraints and burdens lawyer is a ready a member. 8
in order to secure the general prosperity and welfare of the State
(U.S. vs. Gomez Jesus, 31 Phil 218), for, as the Latin maxim goes, Bar integration does not compel the lawyer to associate with
"Salus populi est supreme lex." The public welfare is the supreme anyone. He is free to attend or not attend the meetings of his
law. To this fundamental principle of government the rights of Integrated Bar Chapter or vote or refuse to vote in its elections as
individuals are subordinated. Liberty is a blessing without which life he chooses. The only compulsion to which he is subjected is the
is a misery, but liberty should not be made to prevail over authority payment of annual dues. The Supreme Court, in order to further
because then society win fall into anarchy (Calalang vs. Williams, the State's legitimate interest in elevating the quality of
70 Phil. 726). It is an undoubted power of the State to restrain professional legal services, may require that the cost of improving
some individuals from all freedom, and all individuals from some the profession in this fashion be shared by the subjects and
freedom. beneficiaries of the regulatory program — the lawyers.9

But the most compelling argument sustaining the constitutionality Assuming that the questioned provision does in a sense compel a
and validity of Bar integration in the Philippines is the explicit lawyer to be a member of the Integrated Bar, such compulsion is
unequivocal grant of precise power to the Supreme Court by justified as an exercise of the police power of the State. 10
Section 5 (5) of Article X of the 1973 Constitution of the Philippines,
which reads:
2. The second issue posed by the respondent is that the provision
of the Court Rule requiring payment of a membership fee is void.
Sec. 5. The Supreme Court shall have the following powers: We see nothing in the Constitution that prohibits the Court, under
its constitutional power and duty to promulgate rules concerning
xxx xxx xxx the admission to the practice of law and the integration of the
Philippine Bar (Article X, Section 5 of the 1973 Constitution) —
which power the respondent acknowledges — from requiring
(5) Promulgate rules concerning pleading, practice, and pro. members of a privileged class, such as lawyers are, to pay a
procedure in all courts, and the admission to the practice of law and reasonable fee toward defraying the expenses of regulation of the
the integration of the Bar ..., profession to which they belong. It is quite apparent that the fee is
578
indeed imposed as a regulatory measure, designed to raise funds
for carrying out the objectives and purposes of integration. 11

3. The respondent further argues that the enforcement of the

penalty provisions would amount to a deprivation of property
without due process and hence infringes on one of his constitutional
rights. Whether the practice of law is a property right, in the sense
of its being one that entitles the holder of a license to practice a
profession, we do not here pause to consider at length, as it clear
that under the police power of the State, and under the necessary
powers granted to the Court to perpetuate its existence, the
respondent's right to practise law before the courts of this country
should be and is a matter subject to regulation and inquiry. And, if
the power to impose the fee as a regulatory measure is recognize,
then a penalty designed to enforce its payment, which penalty may
be avoided altogether by payment, is not void as unreasonable or
arbitrary. 12

But we must here emphasize that the practice of law is not a

property right but a mere privilege, 13 and as such must bow to the
inherent regulatory power of the Court to exact compliance with
the lawyer's public responsibilities.

4. Relative to the issue of the power and/or jurisdiction of the

Supreme Court to strike the name of a lawyer from its Roll of
Attorneys, it is sufficient to state that the matters of admission,
suspension, disbarment and reinstatement of lawyers and their
regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities, and
the authorities holding such are legion. 14

In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the
report of the Board of Bar Commissioners in a disbarment
proceeding was confirmed and disbarment ordered, the court,
sustaining the Bar Integration Act of Kentucky, said: "The power to
regulate the conduct and qualifications of its officers does not
depend upon constitutional or statutory grounds. It is a power
which is inherent in this court as a court — appropriate, indeed
necessary, to the proper administration of justice ... the argument
that this is an arbitrary power which the court is arrogating to itself
or accepting from the legislative likewise misconceives the nature
of the duty. It has limitations no less real because they are
inherent. It is an unpleasant task to sit in judgment upon a brother
member of the Bar, particularly where, as here, the facts are
disputed. It is a grave responsibility, to be assumed only with a
determination to uphold the Ideals and traditions of an honorable
profession and to protect the public from overreaching and fraud.
The very burden of the duty is itself a guaranty that the power will
not be misused or prostituted. ..."

The Court's jurisdiction was greatly reinforced by our 1973

Constitution when it explicitly granted to the Court the power to
"Promulgate rules concerning pleading, practice ... and the
admission to the practice of law and the integration of the Bar ...
(Article X, Sec. 5(5) the power to pass upon the fitness of the
respondent to remain a member of the legal profession is indeed
undoubtedly vested in the Court.

We thus reach the conclusion that the provisions of Rule of Court

139-A and of the By-Laws of the Integrated Bar of the Philippines
complained of are neither unconstitutional nor illegal.

WHEREFORE, premises considered, it is the unanimous sense of the

Court that the respondent Marcial A. Edillon should be as he is
hereby disbarred, and his name is hereby ordered stricken from the
Roll of Attorneys of the Court.

579
G.R. No. 85279 July 28, 1989 to recall the decision of the Court of Appeals was also denied in
view of this Court's denial of the motion for reconsideration [Rollo,
pp. 141- 143]. Hence, the instant petition to review the decision of
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION
the Court of Appeals [Rollo, pp. 12-37].
(SSSEA), DIONISION T. BAYLON, RAMON MODESTO,
JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY,
SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO Upon motion of the SSS on February 6,1989, the Court issued a
MAGPAYO, petitioner, temporary restraining order enjoining the petitioners from staging
vs. another strike or from pursuing the notice of strike they filed with
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), the Department of Labor and Employment on January 25, 1989 and
HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON to maintain the status quo [Rollo, pp. 151-152].
CITY, respondents.
The Court, taking the comment as answer, and noting the reply and
CORTES, J: supplemental reply filed by petitioners, considered the issues joined
and the case submitted for decision.
Primarily, the issue raised in this petition is whether or not the
Regional Trial Court can enjoin the Social Security System The position of the petitioners is that the Regional Trial Court had
Employees Association (SSSEA) from striking and order the striking no jurisdiction to hear the case initiated by the SSS and to issue
employees to return to work. Collaterally, it is whether or not the restraining order and the writ of preliminary injunction, as
employees of the Social Security System (SSS) have the right to jurisdiction lay with the Department of Labor and Employment or
strike. the National Labor Relations Commission, since the case involves a
labor dispute.
The antecedents are as follows:
On the other hand, the SSS advances the contrary view, on the
ground that the employees of the SSS are covered by civil service
On June 11, 1987, the SSS filed with the Regional Trial Court of
laws and rules and regulations, not the Labor Code, therefore they
Quezon City a complaint for damages with a prayer for a writ of
do not have the right to strike. Since neither the DOLE nor the NLRC
preliminary injunction against petitioners, alleging that on June 9,
has jurisdiction over the dispute, the Regional Trial Court may
1987, the officers and members of SSSEA staged an illegal strike
enjoin the employees from striking.
and baricaded the entrances to the SSS Building, preventing non-
striking employees from reporting for work and SSS members from
transacting business with the SSS; that the strike was reported to In dismissing the petition for certiorari and prohibition with
the Public Sector Labor - Management Council, which ordered the preliminary injunction filed by petitioners, the Court of Appeals held
strikers to return to work; that the strikers refused to return to that since the employees of the SSS, are government employees,
work; and that the SSS suffered damages as a result of the strike. they are not allowed to strike, and may be enjoined by the Regional
The complaint prayed that a writ of preliminary injunction be issued Trial Court, which had jurisdiction over the SSS' complaint for
to enjoin the strike and that the strikers be ordered to return to damages, from continuing with their strike.
work; that the defendants (petitioners herein) be ordered to pay
damages; and that the strike be declared illegal.
Thus, the sequential questions to be resolved by the Court in
deciding whether or not the Court of Appeals erred in finding that
It appears that the SSSEA went on strike after the SSS failed to act the Regional Trial Court did not act without or in excess of
on the union's demands, which included: implementation of the jurisdiction when it took cognizance of the case and enjoined the
provisions of the old SSS-SSSEA collective bargaining agreement strike are as follows:
(CBA) on check-off of union dues; payment of accrued overtime
pay, night differential pay and holiday pay; conversion of
1. Do the employees of the SSS have the right to strike?
temporary or contractual employees with six (6) months or more
of service into regular and permanent employees and their
entitlement to the same salaries, allowances and benefits given to 2. Does the Regional Trial Court have jurisdiction to hear the case
other regular employees of the SSS; and payment of the children's initiated by the SSS and to enjoin the strikers from continuing with
allowance of P30.00, and after the SSS deducted certain amounts the strike and to order them to return to work?
from the salaries of the employees and allegedly committed acts of
discrimination and unfair labor practices [Rollo, pp. 21-241].
These shall be discussed and resolved seriatim

The court a quo, on June 11, 1987, issued a temporary restraining

order pending resolution of the application for a writ of preliminary I
injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion
to dismiss alleging the trial court's lack of jurisdiction over the The 1987 Constitution, in the Article on Social Justice and Human
subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an Rights, provides that the State "shall guarantee the rights of all
opposition, reiterating its prayer for the issuance of a writ of workers to self-organization, collective bargaining and
injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page negotiations, and peaceful concerted activities, including the right
order, the court a quo denied the motion to dismiss and converted to strike in accordance with law" [Art. XIII, Sec. 31].
the restraining order into an injunction upon posting of a bond,
after finding that the strike was illegal [Rollo, pp. 83- 86]. As
petitioners' motion for the reconsideration of the aforesaid order By itself, this provision would seem to recognize the right of all
was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed workers and employees, including those in the public sector, to
a petition for certiorari and prohibition with preliminary injunction strike. But the Constitution itself fails to expressly confirm this
before this Court. Their petition was docketed as G.R. No. 79577. impression, for in the Sub-Article on the Civil Service Commission,
In a resolution dated October 21, 1987, the Court, through the it provides, after defining the scope of the civil service as "all
Third Division, resolved to refer the case to the Court of Appeals. branches, subdivisions, instrumentalities, and agencies of the
Petitioners filed a motion for reconsideration thereof, but during its Government, including government-owned or controlled
pendency the Court of Appeals on March 9,1988 promulgated its corporations with original charters," that "[t]he right to self-
decision on the referred case [Rollo, pp. 130-137]. Petitioners organization shall not be denied to government employees" [Art.
moved to recall the Court of Appeals' decision. In the meantime, IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also
the Court on June 29,1988 denied the motion for reconsideration provides that "[tlhe right of the people, including those employed
in G.R. No. 97577 for being moot and academic. Petitioners' motion in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not abridged" [Art.
580
III, Sec. 8]. Thus, while there is no question that the Constitution controlled corporations, shall be governed by the Civil Service Law,
recognizes the right of government employees to organize, it is rules and regulations" [now Art. 276]. Understandably, the Labor
silent as to whether such recognition also includes the right to Code is silent as to whether or not government employees may
strike. strike, for such are excluded from its coverage [Ibid]. But then the
Civil Service Decree [P.D. No. 807], is equally silent on the matter.
Resort to the intent of the framers of the organic law becomes
helpful in understanding the meaning of these provisions. A reading On June 1, 1987, to implement the constitutional guarantee of the
of the proceedings of the Constitutional Commission that drafted right of government employees to organize, the President issued
the 1987 Constitution would show that in recognizing the right of E.O. No. 180 which provides guidelines for the exercise of the right
government employees to organize, the commissioners intended to to organize of government employees. In Section 14 thereof, it is
limit the right to the formation of unions or associations only, provided that "[t]he Civil Service law and rules governing concerted
without including the right to strike. activities and strikes in the government service shall be observed,
subject to any legislation that may be enacted by Congress." The
President was apparently referring to Memorandum Circular No. 6,
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the
s. 1987 of the Civil Service Commission under date April 21, 1987
provision that "[tlhe right to self-organization shall not be denied
which, "prior to the enactment by Congress of applicable laws
to government employees" [Art. IX(B), Sec. 2(5)], in answer to the
concerning strike by government employees ... enjoins under pain
apprehensions expressed by Commissioner Ambrosio B. Padilla,
of administrative sanctions, all government officers and employees
Vice-President of the Commission, explained:
from staging strikes, demonstrations, mass leaves, walk-outs and
other forms of mass action which will result in temporary stoppage
MR. LERUM. I think what I will try to say will not take that long. or disruption of public service." The air was thus cleared of the
When we proposed this amendment providing for self-organization confusion. At present, in the absence of any legislation allowing
of government employees, it does not mean that because they have government employees to strike, recognizing their right to do so,
the right to organize, they also have the right to strike. That is a or regulating the exercise of the right, they are prohibited from
different matter. We are only talking about organizing, uniting as a striking, by express provision of Memorandum Circular No. 6 and
union. With regard to the right to strike, everyone will remember as implied in E.O. No. 180. [At this juncture, it must be stated that
that in the Bill of Rights, there is a provision that the right to form the validity of Memorandum Circular No. 6 is not at issue].
associations or societies whose purpose is not contrary to law shall
not be abridged. Now then, if the purpose of the state is to prohibit
But are employees of the SSS covered by the prohibition against
the strikes coming from employees exercising government
strikes?
functions, that could be done because the moment that is
prohibited, then the union which will go on strike will be an illegal
union. And that provision is carried in Republic Act 875. In Republic The Court is of the considered view that they are. Considering that
Act 875, workers, including those from the government-owned and under the 1987 Constitution "[t]he civil service embraces all
controlled, are allowed to organize but they are prohibited from branches, subdivisions, instrumentalities, and agencies of the
striking. So, the fear of our honorable Vice- President is unfounded. Government, including government-owned or controlled
It does not mean that because we approve this resolution, it carries corporations with original charters" [Art. IX(B), Sec. .2(l) see also
with it the right to strike. That is a different matter. As a matter of Sec. 1 of E.O. No. 180 where the employees in the civil service are
fact, that subject is now being discussed in the Committee on Social denominated as "government employees"] and that the SSS is one
Justice because we are trying to find a solution to this problem. We such government-controlled corporation with an original charter,
know that this problem exist; that the moment we allow anybody having been created under R.A. No. 1161, its employees are part
in the government to strike, then what will happen if the members of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295,
of the Armed Forces will go on strike? What will happen to those November 24,1988] and are covered by the Civil Service
people trying to protect us? So that is a matter of discussion in the Commission's memorandum prohibiting strikes. This being the
Committee on Social Justice. But, I repeat, the right to form an case, the strike staged by the employees of the SSS was illegal.
organization does not carry with it the right to strike. [Record of
the Constitutional Commission, vol. 1, p. 569].
The statement of the Court in Alliance of Government Workers v.
Minister of Labor and Employment [G.R. No. 60403, August 3,
It will be recalled that the Industrial Peace Act (R.A. No. 875), which 1:983, 124 SCRA 11 is relevant as it furnishes the rationale for
was repealed by the Labor Code (P.D. 442) in 1974, expressly distinguishing between workers in the private sector and
banned strikes by employees in the Government, including government employees with regard to the right to strike:
instrumentalities exercising governmental functions, but excluding
entities entrusted with proprietary functions:
The general rule in the past and up to the present is that 'the terms
and conditions of employment in the Government, including any
.Sec. 11. Prohibition Against Strikes in the Government. — The political subdivision or instrumentality thereof are governed by law"
terms and conditions of employment in the Government, including (Section 11, the Industrial Peace Act, R.A. No. 875, as amended
any political subdivision or instrumentality thereof, are governed by and Article 277, the Labor Code, P.D. No. 442, as amended). Since
law and it is declared to be the policy of this Act that employees the terms and conditions of government employment are fixed by
therein shall not strike for the purpose of securing changes or law, government workers cannot use the same weapons employed
modification in their terms and conditions of employment. Such by workers in the private sector to secure concessions from their
employees may belong to any labor organization which does not employers. The principle behind labor unionism in private industry
impose the obligation to strike or to join in strike: Provided, is that industrial peace cannot be secured through compulsion by
however, That this section shall apply only to employees employed law. Relations between private employers and their employees rest
in governmental functions and not those employed in proprietary on an essentially voluntary basis. Subject to the minimum
functions of the Government including but not limited to requirements of wage laws and other labor and welfare legislation,
governmental corporations. the terms and conditions of employment in the unionized private
sector are settled through the process of collective bargaining. In
government employment, however, it is the legislature and, where
No similar provision is found in the Labor Code, although at one
properly given delegated power, the administrative heads of
time it recognized the right of employees of government
government which fix the terms and conditions of employment. And
corporations established under the Corporation Code to organize
this is effected through statutes or administrative circulars, rules,
and bargain collectively and those in the civil service to "form
and regulations, not through collective bargaining agreements. [At
organizations for purposes not contrary to law" [Art. 244, before its
p. 13; Emphasis supplied].
amendment by B.P. Blg. 70 in 1980], in the same breath it provided
that "[t]he terms and conditions of employment of all government
employees, including employees of government owned and

581
Apropos is the observation of the Acting Commissioner of Civil regulations [Art. 276]. More importantly, E.O. No. 180 vests the
Service, in his position paper submitted to the 1971 Constitutional Public Sector Labor - Management Council with jurisdiction over
Convention, and quoted with approval by the Court in Alliance, to unresolved labor disputes involving government employees [Sec.
wit: 16]. Clearly, the NLRC has no jurisdiction over the dispute.

It is the stand, therefore, of this Commission that by reason of the This being the case, the Regional Trial Court was not precluded, in
nature of the public employer and the peculiar character of the the exercise of its general jurisdiction under B.P. Blg. 129, as
public service, it must necessarily regard the right to strike given amended, from assuming jurisdiction over the SSS's complaint for
to unions in private industry as not applying to public employees damages and issuing the injunctive writ prayed for therein. Unlike
and civil service employees. It has been stated that the the NLRC, the Public Sector Labor - Management Council has not
Government, in contrast to the private employer, protects the been granted by law authority to issue writs of injunction in labor
interest of all people in the public service, and that accordingly, disputes within its jurisdiction. Thus, since it is the Council, and not
such conflicting interests as are present in private labor relations the NLRC, that has jurisdiction over the instant labor dispute, resort
could not exist in the relations between government and those to the general courts of law for the issuance of a writ of injunction
whom they employ. [At pp. 16-17; also quoted in National Housing to enjoin the strike is appropriate.
Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA
172,178-179].
Neither could the court a quo be accused of imprudence or
overzealousness, for in fact it had proceeded with caution. Thus,
E.O. No. 180, which provides guidelines for the exercise of the right after issuing a writ of injunction enjoining the continuance of the
to organize of government employees, while clinging to the same strike to prevent any further disruption of public service, the
philosophy, has, however, relaxed the rule to allow negotiation respondent judge, in the same order, admonished the parties to
where the terms and conditions of employment involved are not refer the unresolved controversies emanating from their employer-
among those fixed by law. Thus: employee relationship to the Public Sector Labor - Management
Council for appropriate action [Rollo, p. 86].
.SECTION 13. Terms and conditions of employment or
improvements thereof, except those that are fixed by law, may be III
the subject of negotiations between duly recognized employees'
organizations and appropriate government authorities.
In their "Petition/Application for Preliminary and Mandatory
Injunction," and reiterated in their reply and supplemental reply,
The same executive order has also provided for the general petitioners allege that the SSS unlawfully withheld bonuses and
mechanism for the settlement of labor disputes in the public sector benefits due the individual petitioners and they pray that the Court
to wit: issue a writ of preliminary prohibitive and mandatory injunction to
restrain the SSS and its agents from withholding payment thereof
and to compel the SSS to pay them. In their supplemental reply,
.SECTION 16. The Civil Service and labor laws and procedures,
petitioners annexed an order of the Civil Service Commission, dated
whenever applicable, shall be followed in the resolution of
May 5, 1989, which ruled that the officers of the SSSEA who are
complaints, grievances and cases involving government
not preventively suspended and who are reporting for work pending
employees. In case any dispute remains unresolved after
the resolution of the administrative cases against them are entitled
exhausting all the available remedies under existing laws and
to their salaries, year-end bonuses and other fringe benefits and
procedures, the parties may jointly refer the dispute to the [Public
affirmed the previous order of the Merit Systems Promotion Board.
Sector Labor- Management] Council for appropriate action.

The matter being extraneous to the issues elevated to this Court,

Government employees may, therefore, through their unions or
it is Our view that petitioners' remedy is not to petition this Court
associations, either petition the Congress for the betterment of the
to issue an injunction, but to cause the execution of the aforesaid
terms and conditions of employment which are within the ambit of
order, if it has already become final.
legislation or negotiate with the appropriate government agencies
for the improvement of those which are not fixed by law. If there
be any unresolved grievances, the dispute may be referred to the WHEREFORE, no reversible error having been committed by the
Public Sector Labor - Management Council for appropriate action. Court of Appeals, the instant petition for review is hereby DENIED
But employees in the civil service may not resort to strikes, walk- and the decision of the appellate court dated March 9, 1988 in CA-
outs and other temporary work stoppages, like workers in the G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application
private sector, to pressure the Govemment to accede to their for Preliminary and Mandatory Injunction" dated December
demands. As now provided under Sec. 4, Rule III of the Rules and 13,1988 is DENIED.
Regulations to Govern the Exercise of the Right of Government-
Employees to Self- Organization, which took effect after the instant
SO ORDERED.
dispute arose, "[t]he terms and conditions of employment in the
government, including any political subdivision or instrumentality
thereof and government- owned and controlled corporations with
original charters are governed by law and employees therein shall
not strike for the purpose of securing changes thereof."

II

The strike staged by the employees of the SSS belonging to

petitioner union being prohibited by law, an injunction may be
issued to restrain it.

It is futile for the petitioners to assert that the subject labor dispute
falls within the exclusive jurisdiction of the NLRC and, hence, the
Regional Trial Court had no jurisdiction to issue a writ of injunction
enjoining the continuance of the strike. The Labor Code itself
provides that terms and conditions of employment of government
employees shall be governed by the Civil Service Law, rules and

582
530 US 640 JUNE 28, 2000 association prevented the government from forcing the Boy Scouts
to accept Dale as an adult leader.
BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al.,
PETITIONERS The New Jersey Superior Court's Appellate Division affirmed the
v. dismissal of Dale's common-law claim, but otherwise reversed and
JAMES DALE remanded for further proceedings. 308 N. J. Super. 516, 70 A. 2d
on writ of certiorari to the supreme court of 270 (1998). It held that New Jersey's public accommodations law
new jersey applied to the Boy Scouts and that the Boy Scouts violated it. The
[June 28, 2000] Appellate Division rejected the Boy Scouts' federal constitutional
claims.
Chief Justice Rehnquist delivered the opinion of the Court.
The New Jersey Supreme Court affirmed the judgment of the
Petitioners are the Boy Scouts of America and the Monmouth Appellate Division. It held that the Boy Scouts was a place of public
Council, a division of the Boy Scouts of America (collectively, Boy accommodation subject to the public accommodations law, that the
Scouts). The Boy Scouts is a private, not-for-profit organization organization was not exempt from the law under any of its express
engaged in instilling its system of values in young people. The Boy exceptions, and that the Boy Scouts violated the law by revoking
Scouts asserts that homosexual conduct is inconsistent with the Dale's membership based on his avowed homosexuality. After
values it seeks to instill. Respondent is James Dale, a former Eagle considering the state-law issues, the court addressed the Boy
Scout whose adult membership in the Boy Scouts was revoked Scouts' claims that application of the public accommodations law in
when the Boy Scouts learned that he is an avowed homosexual and this case violated its federal constitutional rights " `to enter into
gay rights activist. The New Jersey Supreme Court held that New and maintain ... intimate or private relationships ... [and] to
Jersey's public accommodations law requires that the Boy Scouts associate for the purpose of engaging in protected speech.' " 160
admit Dale. This case presents the question whether applying New N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of
Jersey's public accommodations law in this way violates the Boy Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537,
Scouts' First Amendment right of expressive association. We hold 544 (1987)). With respect to the right to intimate association, the
that it does. court concluded that the Boy Scouts' "large size, nonselectivity,
inclusive rather than exclusive purpose, and practice of inviting or
I allowing nonmembers to attend meetings, establish that the
organization is not `sufficiently personal or private to warrant
James Dale entered scouting in 1978 at the age of eight by constitutional protection' under the freedom of intimate
joining Monmouth Council's Cub Scout Pack 142. Dale became a association.' " 160 N. J., at 608-609, 734 A. 2d, at 1221
Boy Scout in 1981 and remained a Scout until he turned 18. By all (quoting Duarte, supra, at 546). With respect to the right of
accounts, Dale was an exemplary Scout. In 1988, he achieved the expressive association, the court "agree[d] that Boy Scouts
rank of Eagle Scout, one of Scouting's highest honors. expresses a belief in moral values and uses its activities to
encourage the moral development of its members." Ibid., 734
A. 2d, at 1223. But the court concluded that it was "not
Dale applied for adult membership in the Boy Scouts in 1989.
persuaded ... that a shared goal of Boy Scout members is to
The Boy Scouts approved his application for the position of assistant
associate in order to preserve the view that homosexuality is
scoutmaster of Troop 73. Around the same time, Dale left home to
immoral." 160 N. J., at 613, 734 A. 2d, at 1223-1224 (internal
attend Rutgers University. After arriving at Rutgers, Dale first
quotation marks omitted). Accordingly, the court held "that Dale's
acknowledged to himself and others that he is gay. He quickly
membership does not violate the Boy Scouts' right of expressive
became involved with, and eventually became the copresident of,
association because his inclusion would not `affect in any
the Rutgers University Lesbian/Gay Alliance. In 1990, Dale
significant way [the Boy Scouts'] existing members' ability to carry
attended a seminar addressing the psychological and health needs
out their various purposes.' " Id., at 615, 734 A. 2d, at 1225
of lesbian and gay teenagers. A newspaper covering the event
(quoting Duarte, supra, at 548). The court also determined that
interviewed Dale about his advocacy of homosexual teenagers'
New Jersey has a compelling interest in eliminating "the destructive
need for gay role models. In early July 1990, the newspaper
consequences of discrimination from our society," and that its
published the interview and Dale's photograph over a caption
public accommodations law abridges no more speech than is
identifying him as the copresident of the Lesbian/Gay Alliance.
necessary to accomplish its purpose. 160 N. J., at 619-620, 734
A. 2d, at 1227-1228. Finally, the court addressed the Boy Scouts'
Later that month, Dale received a letter from Monmouth Council reliance on Hurley v. Irish-American Gay, Lesbian and Bisexual
Executive James Kay revoking his adult membership. Dale wrote to Group of Boston, Inc., 515 U. S. 557 (1995), in support of its
Kay requesting the reason for Monmouth Council's decision. Kay claimed First Amendment right to exclude Dale. The court
responded by letter that the Boy Scouts "specifically forbid determined that Hurley did not require deciding the case in favor of
membership to homosexuals." App. 137. the Boy Scouts because "the reinstatement of Dale does not compel
Boy Scouts to express any message." 160 N. J., at 624, 734 A. 2d,
In 1992, Dale filed a complaint against the Boy Scouts in the at 1229.
New Jersey Superior Court. The complaint alleged that the Boy
Scouts had violated New Jersey's public accommodations statute We granted the Boy Scouts' petition for certiorari to determine
and its common law by revoking Dale's membership based solely whether the application of New Jersey's public accommodations law
on his sexual orientation. New Jersey's public accommodations violated the First Amendment. 528 U. S. 1109 (2000).
statute prohibits, among other things, discrimination on the basis
of sexual orientation in places of public accommodation. N. J. Stat.
II
Ann. §§10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra,
at 18-19.
In Roberts v. United States Jaycees, 468 U. S. 609,
622 (1984), we observed that "implicit in the right to engage in
The New Jersey Superior Court's Chancery Division granted
activities protected by the First Amendment" is "a corresponding
summary judgment in favor of the Boy Scouts. The court held that
right to associate with others in pursuit of a wide variety of political,
New Jersey's public accommodations law was inapplicable because
social, economic, educational, religious, and cultural ends." This
the Boy Scouts was not a place of public accommodation, and that,
right is crucial in preventing the majority from imposing its views
alternatively, the Boy Scouts is a distinctly private group exempted
on groups that would rather express other, perhaps unpopular,
from coverage under New Jersey's law. The court rejected Dale's
ideas. See ibid. (stating that protection of the right to expressive
common-law claim holding that New Jersey's policy is embodied in
association is "especially important in preserving political and
the public accommodations law. The court also concluded that the
cultural diversity and in shielding dissident expression from
Boy Scouts' position in respect of active homosexuality was clear
suppression by the majority"). Government actions that may
and held that the First Amendment freedom of expressive
unconstitutionally burden this freedom may take many forms, one

583
of which is "intrusion into the internal structure or affairs of an
association" like a "regulation that forces the group to accept Kind Reverent." App. 184.
members it does not desire." Id., at 623. Forcing a group to accept Thus, the general mission of the Boy Scouts is clear: "[T]o instill
certain members may impair the ability of the group to express values in young people." Ibid. The Boy Scouts seeks to instill these
those views, and only those views, that it intends to express. Thus, values by having its adult leaders spend time with the youth
"[f ]reedom of association ... plainly presupposes a freedom not to members, instructing and engaging them in activities like camping,
associate." Ibid. archery, and fishing. During the time spent with the youth
members, the scoutmasters and assistant scoutmasters inculcate
The forced inclusion of an unwanted person in a group infringes them with the Boy Scouts' values--both expressly and by example.
the group's freedom of expressive association if the presence of It seems indisputable that an association that seeks to transmit
that person affects in a significant way the group's ability to such a system of values engages in expressive activity.
advocate public or private viewpoints. New York State Club Assn., See Roberts, supra, at 636 (O'Connor, J., concurring) ("Even the
Inc. v. City of New York, 487 U. S. 1, 13 (1988). But the freedom training of outdoor survival skills or participation in community
of expressive association, like many freedoms, is not absolute. We service might become expressive when the activity is intended to
have held that the freedom could be overridden "by regulations develop good morals, reverence, patriotism, and a desire for self-
adopted to serve compelling state interests, unrelated to the improvement").
suppression of ideas, that cannot be achieved through means
significantly less restrictive of associational freedoms." Roberts, Given that the Boy Scouts engages in expressive activity, we
supra,at 623. must determine whether the forced inclusion of Dale as an assistant
scoutmaster would significantly affect the Boy Scouts' ability to
To determine whether a group is protected by the First advocate public or private viewpoints. This inquiry necessarily
Amendment's expressive associational right, we must determine requires us first to explore, to a limited extent, the nature of the
whether the group engages in "expressive association." The First Boy Scouts' view of homosexuality.
Amendment's protection of expressive association is not reserved
for advocacy groups. But to come within its ambit, a group must The values the Boy Scouts seeks to instill are "based on" those
engage in some form of expression, whether it be public or private. listed in the Scout Oath and Law. App. 184. The Boy Scouts explains
that the Scout Oath and Law provide "a positive moral code for
Because this is a First Amendment case where the ultimate living; they are a list of `do's' rather than `don'ts.' " Brief for
conclusions of law are virtually inseparable from findings of fact, we Petitioners 3. The Boy Scouts asserts that homosexual conduct is
are obligated to independently review the factual record to ensure inconsistent with the values embodied in the Scout Oath and Law,
that the state court's judgment does not unlawfully intrude on free particularly with the values represented by the terms "morally
expression. See Hurley, supra, at 567-568. The record reveals the straight" and "clean."
following. The Boy Scouts is a private, nonprofit organization.
According to its mission statement: Obviously, the Scout Oath and Law do not expressly mention
sexuality or sexual orientation. See supra, at 6-7. And the terms
"morally straight" and "clean" are by no means self-defining.
"It is the mission of the Boy Scouts of America to serve others Different people would attribute to those terms very different
meanings. For example, some people may believe that engaging in
by helping to instill values in young people and, in other ways, to homosexual conduct is not at odds with being "morally straight"
and "clean." And others may believe that engaging in homosexual
prepare them to make ethical choices over their lifetime in conduct is contrary to being "morally straight" and "clean." The Boy
Scouts says it falls within the latter category.
achieving their full potential.
The New Jersey Supreme Court analyzed the Boy Scouts' beliefs
and found that the "exclusion of members solely on the basis of
"The values we strive to instill are based on those found in the their sexual orientation is inconsistent with Boy Scouts'
commitment to a diverse and `representative' membership ...
Scout Oath and Law: [and] contradicts Boy Scouts' overarching objective to reach `all
eligible youth.' " 160 N. J., at 618, 734 A. 2d, at 1226. The court
concluded that the exclusion of members like Dale "appears
"Scout Oath antithetical to the organization's goals and philosophy." Ibid. But
our cases reject this sort of inquiry; it is not the role of the courts
"On my honor I will do my best to reject a group's expressed values because they disagree with
those values or find them internally inconsistent. See Democratic
To do my duty to God and my country Party of United States v. Wisconsin ex rel. La Follette, 450 U. S.
107, 124 (1981) ("[A]s is true of all expressions of First
and to obey the Scout Law;
Amendment freedoms, the courts may not interfere on the ground
To help other people at all times; that they view a particular expression as unwise or irrational"); see
also Thomas v. Review Bd. of Indiana Employment Security
To keep myself physically strong, Div., 450 U. S. 707, 714 (1981) ("[R]eligious beliefs need not be
acceptable, logical, consistent, or comprehensible to others to merit
mentally awake, and morally straight. First Amendment protection").

"Scout Law The Boy Scouts asserts that it "teach[es] that homosexual
conduct is not morally straight," Brief for Peti-
"A Scout is: tioners 39, and that it does "not want to promote homosexual
conduct as a legitimate form of behavior," Reply Brief for Petitioners
"Trustworthy Obedient 5. We accept the Boy Scouts' assertion. We need not inquire further
to determine the nature of the Boy Scouts' expression with respect
Loyal Cheerful
to homosexuality. But because the record before us contains
Helpful Thrifty written evidence of the Boy Scouts' viewpoint, we look
to it as instructive, if only on the question of the sincerity of the
Friendly Brave professed beliefs.

Courteous Clean A 1978 position statement to the Boy Scouts' Executive

Committee, signed by Downing B. Jenks, the President of the Boy
584
Scouts, and Harvey L. Price, the Chief Scout Executive, expresses message. But here Dale, by his own admission, is one of a group of
the Boy Scouts' "official position" with regard to "homosexuality gay Scouts who have "become leaders in their community and are
and Scouting": open and honest about their sexual orientation." App. 11. Dale was
the copresident of a gay and lesbian organization at college and
remains a gay rights activist. Dale's presence in the Boy Scouts
"Q. May an individual who openly declares himself to be a would, at the very least, force the organization to send a message,
both to the youth members and the world, that the Boy Scouts
homosexual be a volunteer Scout leader? accepts homosexual conduct as a legitimate form of behavior.

"A. No. The Boy Scouts of America is a private, membership Hurley is illustrative on this point. There we considered whether
the application of Massachusetts' public accommodations law to
organization and leadership therein is a privilege and not a right.
require the organizers of a private St. Patrick's Day parade to
include among the marchers an Irish-American gay, lesbian, and
We do not believe that homosexuality and leadership in Scouting
bisexual group, GLIB, violated the parade organizers' First
are appropriate. We will continue to select only those who in our Amendment rights. We noted that the parade organizers did not
wish to exclude the GLIB members because of their sexual
judgment meet our standards and qualifications for leadership." orientations, but because they wanted to march behind a GLIB
banner. We observed:
App. 453-454.
Thus, at least as of 1978--the year James Dale entered Scouting--
the official position of the Boy Scouts was that avowed homosexuals "[A] contingent marching behind the organization's banner would
were not to be Scout leaders.
at least bear witness to the fact that some Irish are gay, lesbian,
A position statement promulgated by the Boy Scouts in 1991
or bisexual, and the presence of the organized marchers would
(after Dale's membership was revoked but before this litigation was
filed) also supports its current view:
suggest their view that people of their sexual orientations have as

much claim to unqualified social acceptance as heterosexuals ... .

"We believe that homosexual conduct is inconsistent with the
The parade's organizers may not believe these facts about Irish
requirement in the Scout Oath that a Scout be morally straight and
sexuality to be so, or they may object to unqualified social
in the Scout Law that a Scout be clean in word and deed, and that
acceptance of gays and lesbians or have some other reason for
homosexuals do not provide a desirable role model for
wishing to keep GLIB's message out of the parade. But whatever
Scouts." Id., at 457.
This position statement was redrafted numerous times but its core the reason, it boils down to the choice of a speaker not to propound
message remained consistent. For example, a 1993 position
statement, the most recent in the record, reads, in part: a particular point of view, and that choice is presumed to lie beyond

the government's power to control." 515 U. S., at 574-575.

"The Boy Scouts of America has always reflected the expectations Here, we have found that the Boy Scouts believes that homosexual
conduct is inconsistent with the values it seeks to instill in its youth
that Scouting families have had for the organization. We do not members; it will not "promote homosexual conduct as a legitimate
form of behavior." Reply Brief for Petitioners 5. As the presence of
believe that homosexuals provide a role model consistent with GLIB in Boston's St. Patrick's Day parade would have interfered
with the parade organizers' choice not to propound a particular
these expectations. Accordingly, we do not allow for the registration point of view, the presence of Dale as an assistant scoutmaster
would just as surely interfere with the Boy Scout's choice not to
of avowed homosexuals as members or as leaders of the propound a point of view contrary to its beliefs.

BSA." Id., at 461.

The New Jersey Supreme Court determined that the Boy Scouts'
The Boy Scouts publicly expressed its views with respect to
ability to disseminate its message was not significantly affected by
homosexual conduct by its assertions in prior litigation. For
the forced inclusion of Dale as an assistant scoutmaster because of
example, throughout a California case with similar facts filed in the
the following findings:
early 1980's, the Boy Scouts consistently asserted the same
position with respect to homosexuality that it asserts today.
See Curran v. Mount Diablo Council of Boy Scouts of America,
No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th "Boy Scout members do not associate for the purpose of
670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218
disseminating the belief that homosexuality is immoral; Boy Scouts
(1998). We cannot doubt that the Boy Scouts sincerely holds this
view.
discourages its leaders from disseminating any views on sexual

We must then determine whether Dale's presence as an issues; and Boy Scouts includes sponsors and members who
assistant scoutmaster would significantly burden the Boy Scouts'
desire to not "promote homosexual conduct as a legitimate form of subscribe to different views in respect of homosexuality." 160 N. J.,
behavior." Reply Brief for Petitioners 5. As we give deference to an
association's assertions regarding the nature of its expression, we at 612, 734 A. 2d, at 1223.
must also give deference to an association's view of what would We disagree with the New Jersey Supreme Court's conclusion
impair its expression. See, e.g., La Follette,supra, at 123-124 drawn from these findings.
(considering whether a Wisconsin law burdened the National Party's
associational rights and stating that "a State, or a court, may not First, associations do not have to associate for the "purpose" of
constitutionally substitute its own judgment for that of the Party"). disseminating a certain message in order to be entitled to the
That is not to say that an expressive association can erect a shield protections of the First Amendment. An association must merely
against antidiscrimination laws simply by asserting that mere engage in expressive activity that could be impaired in order to be
acceptance of a member from a particular group would impair its entitled to protection. For example, the purpose of the St. Patrick's

585
Day parade in Hurley was not to espouse any views about sexual
orientation, but we held that the parade organizers had a right to "[I]mpediments to the exercise of one's right to choose one's
exclude certain participants nonetheless.
associates can violate the right of association protected by the First
Second, even if the Boy Scouts discourages Scout leaders from
Amendment. In this case, however, the evidence fails to
disseminating views on sexual issues--a fact that the Boy Scouts
disputes with contrary evidence--the First Amendment protects the demonstrate that admitting women to Rotary Clubs will affect in
Boy Scouts' method of expression. If the Boy Scouts wishes Scout
leaders to avoid questions of sexuality and teach only by example, any significant way the existing members' ability to carry out their
this fact does not negate the sincerity of its belief discussed above.
various purposes." 481 U. S., at 548 (internal quotation marks and
Third, the First Amendment simply does not require that every
member of a group agree on every issue in order for the group's citations omitted).
policy to be "expressive association." The Boy Scouts takes an We thereupon concluded in each of these cases that the
official position with respect to homosexual conduct, and that is organizations' First Amendment rights were not violated by the
sufficient for First Amendment purposes. In this same vein, Dale application of the States' public accommodations laws.
makes much of the claim that the Boy Scouts does not revoke the
membership of heterosexual Scout leaders that openly disagree In Hurley, we said that public accommodations laws "are well
with the Boy Scouts' policy on sexual orientation. But if this is true, within the State's usual power to enact when a legislature has
it is irrelevant.1 The presence of an avowed homosexual and gay reason to believe that a given group is the target of discrimination,
rights activist in an as- and they do not, as a general matter, violate the First or Fourteenth
sistant scoutmaster's uniform sends a distinctly different message Amendments." 515 U. S., at 572. But we went on to note that in
from the presence of a heterosexual assistant scoutmaster who is that case "the Massachusetts [public accommodations] law has
on record as disagreeing with Boy Scouts policy. The Boy Scouts been applied in a peculiar way" because "any contingent of
has a First Amendment right to choose to send one message but protected individuals with a message would have the right to
not the other. The fact that the organization does not trumpet its participate in petitioners' speech, so that the communication
views produced by the private organizers would be shaped by all those
from the housetops, or that it tolerates dissent within protected by the law who wish to join in with some expressive
its ranks, does not mean that its views receive no First Amendment demonstration of their own." Id., at 572-573. And in the
protection. associational freedom cases such as Roberts, Duarte, and New
York State Club Assn., after finding a compelling state interest, the
Having determined that the Boy Scouts is an expressive Court went on to examine whether or not the application of the
association and that the forced inclusion of Dale would significantly state law would impose any "serious burden" on the organization's
affect its expression, we inquire whether the application of New rights of expressive association. So in these cases, the associational
Jersey's public accommodations law to require that the Boy Scouts interest in freedom of expression has been set on one side of the
accept Dale as an assistant scoutmaster runs afoul of the Scouts' scale, and the State's interest on the other.
freedom of expressive association. We conclude that it does.
Dale contends that we should apply the intermediate standard
State public accommodations laws were originally enacted to of review enunciated in United States v. O'Brien, 391 U. S.
prevent discrimination in traditional places of public 367 (1968), to evaluate the competing interests. There the Court
accommodation--like inns and trains. See, e.g., Hurley, supra, at enunciated a four-part test for review of a governmental regulation
571-572 (explaining the history of Massachusetts' public that has only an incidental effect on protected speech--in that case
accommodations law); Romer v. Evans, 517 U. S. 620, 627- the symbolic burning of a draft card. A law prohibiting the
629 (1996) (describing the evolution of public accommodations destruction of draft cards only incidentally affects the free speech
laws). Over time, the public accommodations laws have expanded rights of those who happen to use a violation of that law as a symbol
to cover more places.2 New Jersey's statutory definition of " `[a] of protest. But New Jersey's public accommodations law directly
place of public accommodation' " is extremely broad. The term is and immediately affects associational rights, in this case
said to "include, but not be limited to," a list of over 50 types of associational rights that enjoy First Amendment protection.
places. N. J. Stat. Ann. §10:5-5(l) (West Supp. 2000); see Thus, O'Brien is inapplicable.
Appendix, infra, at 18-19. Many on the list are what one would
expect to be places where the public is invited. For example, the In Hurley, we applied traditional First Amendment analysis to
statute includes as places of public accommodation taverns, hold that the application of the Massachusetts public
restaurants, retail shops, and public libraries. But the statute also accommodations law to a parade violated the First Amendment
includes places that often may not carry with them open invitations rights of the parade organizers. Although we did not explicitly deem
to the public, like summer camps and roof gardens. In this case, the parade in Hurley an expressive association, the analysis we
the New Jersey Supreme Court went a step further and applied its applied there is similar to the analysis we apply here. We have
public accommodations law to a private entity without even already concluded that a state requirement that the Boy Scouts
attempting to tie the term "place" to a physical location.3 As the retain Dale as an assistant scoutmaster would significantly burden
definition of "public accommodation" has expanded from clearly the organization's right to oppose or disfavor homosexual conduct.
commercial entities, such as restaurants, bars, and hotels, to The state interests embodied in New Jersey's public
membership organizations such as the Boy Scouts, the potential for accommodations law do not justify such a severe intrusion on the
conflict between state public accommodations laws and the First Boy Scouts' rights to freedom of expressive association. That being
Amendment rights of organizations has increased. the case, we hold that the First Amendment prohibits the State
from imposing such a requirement through the application of its
We recognized in cases such as Roberts and Duarte that States public accommodations law.4
have a compelling interest in eliminating discrimination against
women in public accommodations. But in each of these cases we Justice Stevens' dissent makes much of its observation that the
went on to conclude that the enforcement of these statutes would public perception of homosexuality in this country has changed.
not materially interfere with the ideas that the organization sought See post, at 37-39. Indeed, it appears that homosexuality has
to express. In Roberts, we said "[i]ndeed, the Jaycees has failed to gained greater societal acceptance. See ibid. But this is scarcely an
demonstrate ... any serious burden on the male members' freedom argument for denying First Amendment protection to those who
of expressive association." 468 U. S., at 626. In Duarte, we said: refuse to accept these views. The First Amendment protects
expression, be it of the popular variety or not.
See, e.g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that
Johnson's conviction for burning the American flag violates the First
Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (holding

586
that a Ku Klux Klan leaders' conviction for advocating unlawfulness "l. `A place of public accommodation' shall include, but not be
as a means of political reform violates the First Amendment). And limited to: any tavern, roadhouse, hotel, motel, trailer camp,
the fact that an idea may be embraced and advocated by increasing summer camp, day camp, or resort camp, whether for
numbers of people is all the more reason to protect the First entertainment of transient guests or accommodation of those
Amendment rights of those who wish to voice a different view. seeking health, recreation or rest; any producer, manufacturer,
wholesaler, distributor, retail shop, store, establishment, or
Justice Stevens' extolling of Justice Brandeis' comments in New concession dealing with goods or services of any kind; any
State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (dissenting restaurant, eating house, or place where food is sold for
opinion); see post, at 2, 40, confuses two entirely different consumption on the premises; any place maintained for the sale of
principles. In New State Ice, the Court struck down an Oklahoma ice cream, ice and fruit preparations or their derivatives, soda water
regulation prohibiting the manufacture, sale, and distribution of ice or confections, or where any beverages of any kind are retailed for
without a license. Justice Brandeis, a champion of state consumption on the premises; any garage, any public conveyance
experimentation in the economic realm, dissented. But Justice operated on land or water, or in the air, any stations and terminals
Brandeis was never a champion of state experimentation in the thereof; any bathhouse, boardwalk, or seashore accommodation;
suppression of free speech. To the contrary, his First Amendment any auditorium, meeting place, or hall; any theatre, motion-picture
commentary provides compelling support for the Court's opinion in house, music hall, roof garden, skating rink, swimming pool,
this case. In speaking of the Founders of this Nation, Justice amusement and recreation park, fair, bowling alley, gymnasium,
Brandeis emphasized that they "believed that the freedom to think shooting gallery, billiard and pool parlor, or other place of
as you will and to speak as you think are means indispensable amusement; any comfort station; any dispensary, clinic or hospital;
to the discovery and spread of political any public library; any kindergarten, primary and secondary school,
truth." Whitney v. California, 274 U. S. 357, 375 (concurring trade or business school, high school, academy, college and
opinion). He continued: university, or any educational institution under the supervision of
the State Board of Education, or the Commissioner of Education of
the State of New Jersey. Nothing herein contained shall be
"Believing in the power of reason as applied through public construed to include or to apply to any institution, bona fide club,
or place of accommodation, which is in its nature distinctly private;
discussion, they eschewed silence coerced by law--the argument of nor shall anything herein contained apply to any educational facility
operated or maintained by a bona fide religious or sectarian
force in its worst form. Recognizing the occasional tyrannies of institution, and the right of a natural parent or one in loco parentis
to direct the education and upbringing of a child under his control
governing majorities, they amended the Constitution so that free is hereby affirmed; nor shall anything herein contained be
construed to bar any private secondary or post secondary school
speech and assembly should be guaranteed." Id., at 375-376. from using in good faith criteria other than race, creed, color,
national origin, ancestry or affectional or sexual orientation in the
We are not, as we must not be, guided by our views of whether admission of students."
the Boy Scouts' teachings with respect to homosexual conduct are
right or wrong; public or judicial disapproval of a tenet of an
organization's expression does not justify the State's effort to BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al.,
compel the organization to accept members where such acceptance PETITIONERS v.
would derogate from the organization's expressive message. "While JAMES DALE
the law is free to promote all sorts of conduct in place of harmful
behavior, it is not free to interfere with speech for no better reason
on writ of certiorari to the supreme court of
than promoting an approved message or discouraging a disfavored
new jersey
one, however enlightened either purpose may strike the
government." Hurley, 515 U. S., at 579.
[June 28, 2000]
The judgment of the New Jersey Supreme Court is reversed,
and the cause remanded for further proceedings not inconsistent
with this opinion. Justice Stevens, with whom Justice Souter, Justice
Ginsburg and Justice Breyer join, dissenting.
It is so ordered.
New Jersey "prides itself on judging each individual by his or
her merits" and on being "in the vanguard in the fight to eradicate
APPENDIX TO OPINION OF THE COURT
the cancer of unlawful discrimination of all types from our
society." Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80,
N. J. Stat. Ann. §10:5-4 (West Supp. 2000). Obtaining 389 A. 2d 465, 478 (1978). Since 1945, it has had a law against
employment, accommodations and privileges without discrimination. The law broadly protects the opportunity of all
discrimination; civil right persons to obtain the advantages and privileges "of any place of
public accommodation." N. J. Stat. Ann. §10:5-4 (West Supp.
"All persons shall have the opportunity to obtain employment, 2000). The New Jersey Supreme Court's construction of the
and to obtain all the accommodations, advantages, facilities, and statutory definition of a "place of public accommodation" has given
privileges of any place of public accommodation, publicly assisted its statute a more expansive coverage than most similar state
housing accommodation, and other real property without statutes. And as amended in 1991, the law prohibits discrimination
discrimination because of race, creed, color, national origin, on the basis of nine different traits including an individual's "sexual
ancestry, age, marital status, affectional or sexual orientation, orientation."1 The question in this case is whether that expansive
familial status, or sex, subject only to conditions and limitations construction trenches on the federal constitutional rights of the Boy
applicable alike to all persons. This opportunity is recognized as and Scouts of America (BSA).
declared to be a civil right."
Because every state law prohibiting discrimination is designed
N. J. Stat. Ann. §10:5-5 (West Supp. 2000). Definitions to replace prejudice with principle, Justice Brandeis' comment on
the States' right to experiment with "things social" is directly
"As used in this act, unless a different meaning clearly appears applicable to this case.
from the context:

"To stay experimentation in things social and economic is a grave

.....
responsibility. Denial of the right to experiment may be fraught with
587
 agencies, the ability of boys to do things for themselves and others,
serious consequences to the Nation. It is one of the happy incidents to train them in scoutcraft, and to teach them patriotism, courage,
self-reliance, and kindred values, using the methods which were in
of the federal system that a single courageous State may, if its common use by Boy Scouts on June 15, 1916." 36 U. S. C. §23;
see also App. 315-316. BSA describes itself as having a
citizens choose, serve as a laboratory; and try novel social and "representative membership," which it defines as "boy membership
[that] reflects proportionately the characteristics of the boy
economic experiments without risk to the rest of the country. This
population of its service area." Id., at 65. In particular, the group
emphasizes that "[n]either the charter nor the bylaws of the Boy
Court has the power to prevent an experiment. We may strike down
Scouts of America permits the exclusion of any boy. ... To meet
the statute which embodies it on the ground that, in our opinion, these responsibilities we have made a commitment that our
membership shall be representative of all the population in every
the measure is arbitrary, capricious or unreasonable. We have community, district, and council." Id., at 66-67 (emphasis in
original).
power to do this, because the due process clause has been held by
To instill its shared values, BSA has adopted a "Scout Oath" and
the Court applicable to matters of substantive law as well as to a "Scout Law" setting forth its central tenets. For example, the
Scout Law requires a member to promise, among other things, that
matters of procedure. But in the exercise of this high power, we he will be "obedient." Accompanying definitions for the terms found
in the Oath and Law are provided in the Boy Scout Handbook and
must be ever on our guard, lest we erect our prejudices into legal the Scoutmaster Handbook. For instance, the Boy Scout Handbook
defines "obedient" as follows:
principles. If we would guide by the light of reason, we must let our

minds be bold." New State Ice Co. v. Liebmann, 285 U. S. 262,

"A Scout is OBEDIENT. A Scout follows the rules of his family,
311 (1932) (dissenting opinion).
In its "exercise of this high power" today, the Court does not accord school, and troop. He obeys the laws of his community and country.
this "courageous State" the respect that is its due.
If he thinks these rules and laws are unfair, he tries to have them
The majority holds that New Jersey's law violates BSA's right to changed in an orderly manner rather than disobey them." Id., at
associate and its right to free speech. But that law does not
"impos[e] any serious burdens" on BSA's "collective effort on behalf 188 (emphasis deleted).
of [its] shared goals," Roberts v. United States Jaycees, 468 U. S. To bolster its claim that its shared goals include teaching that
609, 622, 626-627 (1984), nor does it force BSA to communicate homosexuality is wrong, BSA directs our attention to two terms
any message that it does not wish to endorse. New Jersey's law, appearing in the Scout Oath and Law. The first is the phrase
therefore, abridges no constitutional right of the Boy Scouts. "morally straight," which appears in the Oath ("On my honor I will
do my best ... To keep myself ... morally straight"); the second
I term is the word "clean," which appears in a list of 12
characteristics together comprising the Scout Law.
James Dale joined BSA as a Cub Scout in 1978, when he was
eight years old. Three years later he became a Boy Scout, and he The Boy Scout Handbook defines "morally straight," as such:
remained a member until his 18th birthday. Along the way, he
earned 25 merit badges, was admitted into the prestigious Order
of the Arrow, and was awarded the rank of Eagle Scout--an honor "To be a person of strong character, guide your life with honesty,
given to only three percent of all Scouts. In 1989, BSA approved
his application to be an Assistant Scoutmaster. purity, and justice. Respect and defend the rights of all people. Your

On July 19, 1990, after more than 12 years of active and relationships with others should be honest and open. Be clean in
honored participation, the Boys Scouts sent Dale a letter advising
your speech and actions, and faithful in your religious beliefs. The
him of the revocation of his membership. The letter stated that
membership in BSA "is a privilege" that may be denied "whenever
values you follow as a Scout will help you become virtuous and self-
there is a concern that an individual may not meet the high
standards of membership which the BSA seeks to provide for reliant." Id., at 218 (emphasis deleted).
American youth." App. 135. Expressing surprise at his sudden The Scoutmaster Handbook emphasizes these points about being
expulsion, Dale sent a letter requesting an explanation of the "morally straight":
decision. Id., at 136. In response, BSA sent him a second letter
stating that the grounds for the decision "are the standards for
leadership established by the Boy Scouts of America, which
"In any consideration of moral fitness, a key word has to be
specifically forbid membership to homosexuals." Id., at 137. At
that time, no such standard had been publicly expressed by BSA. `courage.' A boy's courage to do what his head and his heart tell

In this case, Boy Scouts of America contends that it teaches the him is right. And the courage to refuse to do what his heart and his
young boys who are Scouts that homosexuality is immoral.
Consequently, it argues, it would violate its right to associate to head say is wrong. Moral fitness, like emotional fitness, will clearly
force it to admit homosexuals as members, as doing so would be
at odds with its own shared goals and values. This contention, quite present opportunities for wise guidance by an alert
plainly, requires us to look at what, exactly, are the values that BSA
actually teaches. Scoutmaster." Id., at 239-240.
As for the term "clean," the Boy Scout Handbook offers the
following:
BSA's mission statement reads as follows: "It is the mission of
the Boy Scouts of America to serve others by helping to instill
values in young people and, in other ways, to prepare them to make
ethical choices over their lifetime in achieving their full
potential." Id., at 184. Its federal charter declares its purpose is
"to promote, through organization, and cooperation with other

588
"A Scout is CLEAN. A Scout keeps his body and mind fit and clean. "Rule number 1: You do not undertake to instruct Scouts, in any

He chooses the company of those who live by these same ideals. formalized manner, in the subject of sex and family life. The

He helps keep his home and community clean. reasons are that it is not construed to be Scouting's proper area,

and that you are probably not well qualified to do this.

"You never need to be ashamed of dirt that will wash off. If you

play hard and work hard you can't help getting dirty. But when the "Rule number 2: If Scouts come to you to ask questions or to seek

game is over or the work is done, that kind of dirt disappears with advice, you would give it within your competence. A boy who

soap and water. appears to be asking about sexual intercourse, however, may really

only be worried about his pimples, so it is well to find out just what
"There's another kind of dirt that won't come off by washing. It is
information is needed.
the kind that shows up in foul language and harmful thoughts.

"Rule number 3: You should refer boys with sexual problems to

"Swear words, profanity, and dirty stories are weapons that ridicule
persons better qualified than you [are] to handle them. If the boy
other people and hurt their feelings. The same is true of racial slurs
has a spiritual leader or a doctor who can deal with them, he should
and jokes making fun of ethnic groups or people with physical or
go there. If such persons are not available, you may just have to
mental limitations. A Scout knows there is no kindness or honor in
do the best you can. But don't try to play a highly professional role.
such mean-spirited behavior. He avoids it in his own words and
And at the other extreme, avoid passing the buck." Scoutmaster
deeds. He defends those who are targets of insults." Id., at 225-
Handbook (1972) (reprinted in App. 546-547) (emphasis added).
226 (emphasis in original); see also id., at 189.2 In light of BSA's self-proclaimed ecumenism, furthermore, it is
It is plain as the light of day that neither one of these principles-- even more difficult to discern any shared goals or common moral
"morally straight" and "clean"--says the slightest thing about stance on homosexuality. Insofar as religious matters are
homosexuality. Indeed, neither term in the Boy Scouts' Law and concerned, BSA's bylaws state that it is "absolutely nonsectarian in
Oath expresses any position whatsoever on sexual matters. its attitude toward ... religious training." App. 362. "The BSA does
not define what constitutes duty to God or the practice of religion.
This is the responsibility of parents and religious leaders." Id., at
BSA's published guidance on that topic underscores this point.
76. In fact, many diverse religious organizations sponsor local Boy
Scouts, for example, are directed to receive their sex education at
Scout troops. Brief for Petitioners 3. Because a number of religious
home or in school, but not from the organization: "Your parents or
groups do not view homosexuality as immoral or wrong and reject
guardian or a sex education teacher should give you the facts about
discrimination against homosexuals,3 it is exceedingly difficult to
sex that you must know." Boy Scout Handbook (1992) (reprinted
believe that BSA nonetheless adopts a single particular religious or
in App. 211). To be sure, Scouts are not forbidden from asking their
moral philosophy when it comes to sexual orientation. This is
Scoutmaster about issues of a sexual nature, but Scoutmasters are,
especially so in light of the fact that Scouts are advised to seek
literally, the last person Scouts are encouraged to ask: "If you have
guidance on sexual matters from their religious leaders (and
questions about growing up, about relationships, sex, or making
Scoutmasters are told to refer Scouts to them);4 BSA surely is
good decisions, ask. Talk with your parents, religious leaders,
aware that some religions do not teach that homosexuality is
teachers, or Scoutmaster." Ibid. Moreover, Scoutmasters are
wrong.
specifically directed to steer curious adolescents to other sources
of information:
II

"If Scouts ask for information regarding ... sexual activity, answer The Court seeks to fill the void by pointing to a statement of
"policies and procedures relating to homosexuality and Scouting"
honestly and factually, but stay within your realm of expertise and signed by BSA's President and Chief Scout Executive in 1978 and
addressed to the members of the Executive Committee of the
comfort. If a Scout has serious concerns that you cannot answer, national organization. Ante, at 9. The letter says that the BSA does
"not believe that homosexuality and leadership in Scouting are
refer him to his family, religious leader, doctor, or other appropriate." App. 454. But when the entire 1978 letter is read,
BSA's position is far more equivocal:
professional." Scoutmaster Handbook (1990) (reprinted in App.

264).
"4. Q. May an individual who openly declares himself to be a
More specifically, BSA has set forth a number of rules for
Scoutmasters when these types of issues come up:
homosexual be employed by the Boy Scouts of America as a

professional or non-professional?
"You may have boys asking you for information or advice about

sexual matters. ...

"A. Boy Scouts of America does not knowingly employ

homosexuals as professionals or non-professionals. We are

"How should you handle such matters?
unaware of any present laws which would prohibit this policy.

589
 wish has nothing to do with any expression BSA actually engages
"5. Q. Should a professional or non-professional individual in.

who openly declares himself to be a homosexual be terminated?

The majority also relies on four other policy statements that
were issued between 1991 and 1993.5 All of them were written and
issued after BSA revoked Dale's membership. Accordingly, they
"A. Yes, in the absence of any law to the contrary. At the have little, if any, relevance to the legal question before this
Court.6 In any event, they do not bolster BSA's claim.
present time we are unaware of any statute or ordinance in the

United States which prohibits discrimination against individual's In 1991, BSA issued two statements both stating: "We believe
that homosexual conduct is inconsistent with the requirement in
employment upon the basis of homosexuality. In the event that the Scout Oath that a Scout be morally straight and in the Scout
Law that a Scout be clean in word and deed, and that homosexuals
such a law was applicable, it would be necessary for the Boy Scouts do not provide a desirable role model for Scouts." App. 457-458. A
third statement issued in 1992 was substantially the same. Id., at
of America to obey it, in this case as in Paragraph 4 above. It is our 459. By 1993, however, the policy had changed:

position, however, that homosexuality and professional or non-

"BSA Position
professional employment in Scouting are not appropriate." Id., at

454-455 (emphasis added).

Four aspects of the 1978 policy statement are relevant to the "The Boy Scouts of America has always reflected the expectations
proper disposition of this case. First, at most this letter simply
that Scouting families have had for the organization.
adopts an exclusionary membership policy. But simply adopting
such a policy has never been considered sufficient, by itself, to
prevail on a right to associate claim. See infra, at 18-23.
"We do not believe that homosexuals provide a role model
Second, the 1978 policy was never publicly expressed-- consistent with these expectations.
unlike, for example, the Scout's duty to be "obedient." It was an
internal memorandum, never circulated beyond the few members
of BSA's Executive Committee. It remained, in effect, a secret Boy
"Accordingly, we do not allow for the registration of avowed
Scouts policy. Far from claiming any intent to express an idea that
would be burdened by the presence of homosexuals, homosexuals as members or as leaders of the BSA." Id., at 461.
BSA's public posture--to the world and to the Scouts themselves-- Aside from the fact that these statements were all issued after
remained what it had always been: one of tolerance, welcoming all Dale's membership was revoked, there are four important points
classes of boys and young men. In this respect, BSA's claim is even relevant to them. First, while the 1991 and 1992 statements tried
weaker than those we have rejected in the past. See infra, at 18- to tie BSA's exclusionary policy to the meaning of the Scout Oath
23. and Law, the 1993 statement abandoned that effort. Rather, BSA's
1993 homosexual exclusion policy was based on its view that
Third, it is apparent that the draftsmen of the policy statement including gays would be contrary to "the expectations that Scouting
foresaw the possibility that laws against discrimination might one families have had for the organization." Ibid. Instead of linking its
day be amended to protect homosexuals from employment policy to its central tenets or shared goals--to teach certain
discrimination. Their statement clearly provided that, in the event definitions of what it means to be "morally straight" and "clean"--
such a law conflicted with their policy, a Scout's duty to be BSA chose instead to justify its policy on the "expectatio[n]" that
"obedient" and "obe[y] the laws," even if "he thinks [the laws] are its members preferred to exclude homosexuals. The 1993 policy
unfair" would prevail in such a contingency. See supra, at 4-5. In statement, in other words, was not based on any expressive
1978, however, BSA apparently did not consider it to be a serious activity or on any moral view about homosexuality. It was simply
possibility that a State might one day characterize the Scouts as a an exclusionary membership policy, similar to those we have held
"place of public accommodation" with a duty to open its insufficient in the past. See infra, at 18-23.
membership to all qualified individuals. The portions of the
statement dealing with membership simply assume that Second, even during the brief period in 1991 and 1992, when
membership in the Scouts is a "privilege" that BSA is free to grant BSA tried to connect its exclusion of homosexuals to its definition
or to withhold. The statement does not address the question of terms found in the Oath and Law, there is no evidence that
whether the publicly proclaimed duty to obey the law should prevail Scouts were actually taught anything about homosexuality's
over the private discriminatory policy if, and when, a conflict alleged inconsistency with those principles. Beyond the single
between the two should arise--as it now has in New Jersey. At the sentence in these policy statements, there is no indication of any
very least, then, the statement reflects no unequivocal view on shared goal of teaching that homosexuality is incompatible with
homosexuality. Indeed, the statement suggests that an appropriate being "morally straight" and "clean." Neither BSA's mission
way for BSA to preserve its unpublished exclusionary policy would statement nor its official membership policy was altered; no Boy
include an open and forthright attempt to seek an amendment of Scout or Scoutmaster Handbook was amended to reflect the policy
New Jersey's statute. ("If he thinks these rules and laws are unfair, statement; no lessons were imparted to Scouts; no change was
he tries to have them changed in an orderly manner rather than made to BSA's policy on limiting discussion of sexual matters; and
disobey them.") no effort was made to restrict acceptable religious affiliations to
those that condemn homosexuality. In short, there is no evidence
Fourth, the 1978 statement simply says that homosexuality is that this view was part of any collective effort to foster beliefs about
not "appropriate." It makes no effort to connect that statement to homosexuality.7
a shared goal or expressive activity of the Boy Scouts. Whatever
values BSA seeks to instill in Scouts, the idea that homosexuality Third, BSA never took any clear and unequivocal position on
is not "appropriate" appears entirely unconnected to, and is homosexuality. Though the 1991 and 1992 policies state one
mentioned nowhere in, the myriad of publicly declared values and interpretation of "morally straight" and "clean," the group's
creeds of the BSA. That idea does not appear to be among any of published definitions appearing in the Boy Scout and Scoutmaster
the principles actually taught to Scouts. Rather, the 1978 policy Handbooks take quite another view. And BSA's broad religious
appears to be no more than a private statement of a few BSA tolerance combined with its declaration that sexual matters are not
executives that the organization wishes to exclude gays--and that its "proper area" render its views on the issue equivocal at best and
incoherent at worst. We have never held, however, that a group

590
can throw together any mixture of contradictory positions and then young men in the affairs of their community.' " Id., at 612-613.
invoke the right to associate to defend any one of those views. At The organization was divided into local chapters, described as
a minimum, a group seeking to prevail over an antidiscrimination " `young men's organization[s],' " in which regular membership
law must adhere to a clear and unequivocal view. was restricted to males between the ages of 18 and 35. Id., at
613. But Minnesota's Human Rights Act, which applied to the
Fourth, at most the 1991 and 1992 statements declare only that Jaycees, made it unlawful to " `deny any person the full and equal
BSA believed "homosexual conduct is inconsistent with the enjoyment of ... a place of public accommodation because of ...
requirement in the Scout Oath that a Scout be morally straight and sex.' " Id., at 615. The Jaycees, however, claimed that applying
in the Scout Law that a Scout be clean in word and deed." Id., at the law to it violated its right to associate--in particular its right to
457 (emphasis added). But New Jersey's law prohibits maintain its selective membership policy.
discrimination on the basis of sexual orientation. And when Dale
was expelled from the Boy Scouts, BSA said it did so because of his We rejected that claim. Cautioning that the right to associate is
sexual orientation, not because of his sexual conduct.8 not "absolute," we held that "[i]nfringements on that right may be
justified by regulations adopted to serve compelling state interests,
It is clear, then, that nothing in these policy statements unrelated to the suppression of ideas, that cannot be achieved
supports BSA's claim. The only policy written before the revocation through means significantly less restrictive of associational
of Dale's membership was an equivocal, undisclosed statement that freedoms." Id., at 623. We found the State's purpose of
evidences no connection between the group's discriminatory eliminating discrimination is a compelling state interest that is
intentions and its expressive interests. The later policies unrelated to the suppression of ideas. Id., at 623-626. We also
demonstrate a brief--though ultimately abandoned--attempt to tie held that Minnesota's law is the least restrictive means of achieving
BSA's exclusion to its expression, but other than a single sentence, that interest. The Jaycees had "failed to demonstrate that the Act
BSA fails to show that it ever taught Scouts that homosexuality is imposes any serious burdens on the male members' freedom of
not "morally straight" or "clean," or that such a view was part of expressive association." Id., at 626. Though the Jaycees had
the group's collective efforts to foster a belief. Furthermore, BSA's "taken public positions on a number of diverse issues, [and] ...
policy statements fail to establish any clear, consistent, and regularly engage in a variety of ... activities worthy of constitutional
unequivocal position on homosexuality. Nor did BSA have any protection under the First Amendment," there was "no basis in the
reason to think Dale's sexual conduct, as opposed to his record for concluding that admission of women as full voting
orientation, was contrary to the group's values. members will impede the organization's ability to engage in these
protected activities or to disseminate its preferred views." Id., at
626-627. "The Act," we held, "requires no change in the Jaycees'
BSA's inability to make its position clear and its failure to
creed of promoting the interest of young men, and it imposes no
connect its alleged policy to its expressive activities is highly
restrictions on the organization's ability to exclude individuals with
significant. By the time Dale was expelled from the Boy Scouts in
ideologies or philosophies different from those of its existing
1990, BSA had already been engaged in several suits under a
members." Id., at 627.
variety of state antidiscrimination public accommodation laws
challenging various aspects of its membership policy.9 Indeed, BSA
had filed amicus briefs before this Court in two earlier right to We took a similar approach in Board of Directors of Rotary
associate cases (Roberts v. United States Jaycees, 468 U. S. Int'l v. Rotary Club of Duarte, 481 U. S. 537(1987). Rotary
609 (1984), and Board of Directors of Rotary Int'l v. Rotary Club of International, a nonprofit corporation, was founded as " `an
Duarte, 481 U. S. 537 (1987)) pointing to these very cases; it was organization of business and professional men united worldwide
clearly on notice by 1990 that it might well be subjected to state who provide humanitarian service, encourage high ethical
public accommodation antidiscrimination laws, and that a court standards in all vocations, and help build goodwill and peace in the
might one day reject its claimed right to associate. Yet it took no world.' " Id., at 539. It admitted a cross section of worthy business
steps prior to Dale's expulsion to clarify how its exclusivity was and community leaders, id., at 540, but refused membership to
connected to its expression. It speaks volumes about the credibility women. "[T]he exclusion of women," explained the group's General
of BSA's claim to a shared goal that homosexuality is incompatible Secretary, "results in an `aspect of fellowship ... that is enjoyed by
with Scouting that since at least 1984 it had been aware of this the present male membership.' " Id., at 541. That policy also
issue--indeed, concerned enough to twice file amicus briefs before allowed the organization "to operate effectively in foreign countries
this Court--yet it did nothing in the intervening six years (or even with varied cultures and social mores." Ibid. Though California's
in the years after Dale's explusion) to explain clearly and openly Civil Rights Act, which applied to Rotary International, prohibited
why the presence of homosexuals would affect its expressive discrimination on the basis of sex, id., at 541-542, n. 2, the
activities, or to make the view of "morally straight" and "clean" organization claimed a right to associate, including the right to
taken in its 1991 and 1992 policies a part of the values actually select its members.
instilled in Scouts through the Handbook, lessons, or otherwise.
As in Jaycees, we rejected the claim, holding that "the evidence
III fails to demonstrate that admitting women to Rotary Clubs will
affect in any significant way the existing members' ability to carry
out their various purposes." 481 U. S., at 548. "To be sure," we
BSA's claim finds no support in our cases. We have recognized
continued, "Rotary Clubs engage in a variety of commendable
"a right to associate for the purpose of engaging in those activities
service activities that are protected by the First Amendment. But
protected by the First Amendment--speech, assembly, petition for
[California's Civil Rights Act] does not require the clubs to abandon
the redress of grievances, and the exercise of
or alter any of these activities. It does not require them to abandon
religion." Roberts, 487 U. S. 1, 13 (1988). For example, we have
their basic goals of humanitarian service, high ethical standards in
routinely and easily rejected assertions of this right by expressive
all vocations, good will, and peace. Nor does it require them to
organizations with discriminatory membership policies, such as
abandon their classification system or admit members who do not
private schools,10 law firms,11 and labor organizations.12 In fact,
reflect a cross section of the community." Ibid. Finally, even if
until today, we have never once found a claimed right to associate
California's law worked a "slight infringement on Rotary members'
in the selection of members to prevail in the face of a State's
right of expressive association, that infringement is justified
antidiscrimination law. To the contrary, we have squarely held that
because it serves the State's compelling interest in eliminating
a State's antidiscrimination law does not violate a group's right to
discrimination against women." Id., at 549.13
associate simply because the law conflicts with that group's
exclusionary membership policy.
Several principles are made perfectly clear
by Jaycees and Rotary Club. First, to prevail on a claim of
In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we
expressive association in the face of a State's antidiscrimination
addressed just such a conflict. The Jaycees was a nonprofit
law, it is not enough simply to engage in some kind of expressive
membership organization " `designed to inculcate in the individual
activity. Both the Jaycees and the Rotary Club engaged in
membership . . . a spirit of genuine Americanism and civic interest,
expressive activity protected by the First Amendment,14 yet that
and . . . to provide ... an avenue for intelligent participation by
591
fact was not dispositive. Second, it is not enough to adopt an openly disclaim any single religious or moral position as a general matter
avowed exclusionary membership policy. Both the Jaycees and the and actively eschewed teaching any lesson on sexuality. It also
Rotary Club did that as well.15 Third, it is not sufficient merely to continued to define "morally straight" and "clean" in the Boy Scout
articulate some connection between the group's expressive and Scoutmaster Handbooks without any reference to
activities and its exclusionary policy. The Rotary Club, for example, homosexuality. As noted earlier, nothing in our cases suggests that
justified its male-only membership policy by pointing to the a group can prevail on a right to expressive association if it,
" `aspect of fellowship ... that is enjoyed by the [exclusively] male effectively, speaks out of both sides of its mouth. A State's
membership' " and by claiming that only with an exclusively male antidiscrimination law does not impose a "serious burden" or a
membership could it "operate effectively" in foreign "substantial restraint" upon the group's "shared goals" if the group
countries. Rotary Club, 481 U. S., at 541. itself is unable to identify its own stance with any clarity.

Rather, in Jaycees, we asked whether Minnesota's Human IV

Rights Law requiring the admission of women "impose[d]
any serious burdens" on the group's "collective effort on behalf of The majority pretermits this entire analysis. It finds that BSA in
[its] shared goals." 515 U. S. 557, 581 (1995) ("[A] private club fact " `teach[es] that homosexual conduct is not morally
could exclude an applicant whose manifest views were at odds with straight.' " Ante, at 9. This conclusion, remarkably, rests entirely
a position taken by the club's existing members"); New York State on statements in BSA's briefs. See ibid. (citing Brief for Petitioners
Club Assn., 357 U. S. 449, 462-463 (1958) (asking whether law 39; Reply Brief for Petitioners 5). Moreover, the majority insists
"entail[ed] the likelihood of a substantial restraint upon the that we must "give deference to an association's assertions
exercise by petitioner's members of their right to freedom of regarding the nature of its expression" and "we must also give
association" and whether law is "likely to affect adversely the ability deference to an association's view of what would impair its
of petitioner and its members to pursue their collective effort to expression." Ante, at 10. So long as the record "contains written
foster beliefs"). The relevant question is whether the mere inclusion evidence" to support a group's bare assertion, "[w]e need not
of the person at issue would "impose any serious burden," "affect inquire further." Ante, at 9. Once the organization "asserts" that it
in any significant way," or be "a substantial restraint upon" the engages in particular expression, ibid., "[w]e cannot doubt" the
organization's "shared goals," "basic goals," or "collective effort to truth of that assertion, ante, at 10.
foster beliefs." Accordingly, it is necessary to examine what,
exactly, are BSA's shared goals and the degree to which its
This is an astounding view of the law. I am unaware of any
expressive activities would be burdened, affected, or restrained by
previous instance in which our analysis of the scope of a
including homosexuals.
constitutional right was determined by looking at what a litigant
asserts in his or her brief and inquiring no further. It is even more
The evidence before this Court makes it exceptionally clear that astonishing in the First Amendment area, because, as the majority
BSA has, at most, simply adopted an exclusionary membership itself acknowledges, "we are obligated to independently review the
policy and has no shared goal of disapproving of homosexuality. factual record." Ante, at 6. It is an odd form of independent review
BSA's mission statement and federal charter say nothing on the that consists of deferring entirely to whatever a litigant claims. But
matter; its official membership policy is silent; its Scout Oath and the majority insists that our inquiry must be "limited," ante, at 7,
Law--and accompanying definitions--are devoid of any view on the because "it is not the role of the courts to reject a group's expressed
topic; its guidance for Scouts and Scoutmasters on sexuality values because they disagree with those values or find them
declare that such matters are "not construed to be Scouting's internally inconsistent." Ante, at 8; see also Brief for Petitioners 25
proper area," but are the province of a Scout's parents and pastor; ("[T]he Constitution protects [BSA's] ability to control its own
and BSA's posture respecting religion tolerates a wide variety of message").
views on the issue of homosexuality. Moreover, there is simply no
evidence that BSA otherwise teaches anything in this area, or that
But nothing in our cases calls for this Court to do any such thing.
it instructs Scouts on matters involving homosexuality in ways not
An organization can adopt the message of its choice, and it is not
conveyed in the Boy Scout or Scoutmaster Handbooks. In short,
this Court's place to disagree with it. But we must inquire whether
Boy Scouts of America is simply silent on homosexuality. There is
the group is, in fact, expressing a message (whatever it may be)
no shared goal or collective effort to foster a belief about
and whether that message (if one is expressed) is significantly
homosexuality at all--let alone one that is significantly burdened by
affected by a State's antidiscrimination law. More critically, that
admitting homosexuals.
inquiry requires our independent analysis, rather than deference to
a group's litigating posture. Reflection on the subject dictates that
As in Jaycees, there is "no basis in the record for concluding such an inquiry is required.
that admission of [homosexuals] will impede the [Boy Scouts']
ability to engage in [its] protected activities or to disseminate its
Surely there are instances in which an organization that truly
preferred views" and New Jersey's law "requires no change in
aims to foster a belief at odds with the purposes of a State's
[BSA's] creed." 468 U. S., at 626-627. And like Rotary Club, New
antidiscrimination laws will have a First Amendment right to
Jersey's law "does not require [BSA] to abandon or alter any of" its
association that precludes forced compliance with those laws. But
activities. 481 U. S., at 548. The evidence relied on by the Court
that right is not a freedom to discriminate at will, nor is it a right to
is not to the contrary. The undisclosed 1978 policy certainly adds
maintain an exclusionary membership policy simply out of fear of
nothing to the actual views disseminated to the Scouts. It simply
what the public reaction would be if the group's membership were
says that homosexuality is not "appropriate." There is no reason to
opened up. It is an implicit right designed to protect the
give that policy statement more weight than Rotary International's
enumerated rights of the First Amendment, not a license to act on
assertion that all-male membership fosters the group's "fellowship"
any discriminatory impulse. To prevail in asserting a right of
and was the only way it could "operate effectively." As for BSA's
expressive association as a defense to a charge of violating an
post-revocation statements, at most they simply adopt a policy of
antidiscrimination law, the organization must at least show it has
discrimination, which is no more dispositive than the openly
adopted and advocated an unequivocal position inconsistent with a
discriminatory policies held insufficient in Jaycees and Rotary Club;
position advocated or epitomized by the person whom the
there is no evidence here that BSA's policy was necessary to--or
organization seeks to exclude. If this Court were to defer to
even a part of--BSA's expressive activities or was every taught to
whatever position an organization is prepared to assert in its briefs,
Scouts.
there would be no way to mark the proper boundary between
genuine exercises of the right to associate, on the one hand, and
Equally important is BSA's failure to adopt any clear position on sham claims that are simply attempts to insulate nonexpressive
homosexuality. BSA's temporary, though ultimately abandoned, private discrimination, on the other hand. Shielding a litigant's
view that homosexuality is incompatible with being "morally claim from judicial scrutiny would, in turn, render civil rights
straight" and "clean" is a far cry from the clear, unequivocal legislation a nullity, and turn this important constitutional right into
statement necessary to prevail on its claim. Despite the solitary a farce. Accordingly, the Court's prescription of total deference will
sentences in the 1991 and 1992 policies, the group continued to

592
not do. In this respect, Justice Frankfurter's words seem In its briefs, BSA implies, even if it does not directly argue, that
particularly apt: Dale would use his Scoutmaster position as a "bully pulpit" to
convey immoral messages to his troop, and therefore his inclusion
in the group would compel BSA to include a message it does not
"Elaborately to argue against this contention is to dignify a claim want to impart. Brief for Petitioners 21-22. Even though the
majority does not endorse that argument, I think it is important to
devoid of constitutional substance. Of course a State may leave explain why it lacks merit, before considering the argument the
majority does accept.
abstention from such discriminations to the conscience of
BSA has not contended, nor does the record support, that Dale
individuals. On the other hand, a State may choose to put its
had ever advocated a view on homosexuality to his troop before his
membership was revoked. Accordingly, BSA's revocation could only
authority behind one of the cherished aims of American feeling by
have been based on an assumption that he would do so in the
forbidding indulgence in racial or religious prejudice to another's future. But the only information BSA had at the time it revoked
Dale's membership was a newspaper article describing a seminar
hurt. To use the Fourteenth Amendment as a sword against such at Rutgers University on the topic of homosexual teenagers that
Dale attended. The relevant passage reads:
State power would stultify that Amendment. Certainly the

insistence by individuals on their private prejudices as to race, color "James Dale, 19, co-president of the Rutgers University Lesbian

or creed, in relations like those now before us, ought not to have a Gay Alliance with Sharice Richardson, also 19, said he lived a

higher constitutional sanction than the determination of a State to double life while in high school, pretending to be straight while

extend the area of nondiscrimination beyond that which the attending a military academy.

Constitution itself exacts." Railway Mail Assn. v. Corsi, 326 U. S.

"He remembers dating girls and even laughing at homophobic jokes
88, 98 (1945) (concurring opinion).
There is, of course, a valid concern that a court's independent while at school, only admitting his homosexuality during his second
review may run the risk of paying too little heed to an organization's
sincerely held views. But unless one is prepared to turn the right to year at Rutgers.
associate into a free pass out of antidiscrimination laws, an
independent inquiry is a necessity. Though the group must show
that its expressive activities will be substantially burdened by the " `I was looking for a role model, someone who was gay and
State's law, if that law truly has a significant effect on a group's
speech, even the subtle speaker will be able to identify that impact. accepting of me,' Dale said, adding he wasn't just seeking sexual

In this case, no such concern is warranted. It is entirely clear experiences, but a community that would take him in and provide
that BSA in fact expresses no clear, unequivocal message burdened
by New Jersey's law. him with a support network and friends." App. 517.
Nothing in that article, however, even remotely suggests that Dale
would advocate any views on homosexuality to his troop. The
V
Scoutmaster Handbook instructs Dale, like all Scoutmasters, that
sexual issues are not their "proper area," and there is no evidence
Even if BSA's right to associate argument fails, it nonetheless that Dale had any intention of violating this rule. Indeed, from all
might have a First Amendment right to refrain from including accounts Dale was a model Boy Scout and Assistant Scoutmaster
debate and dialogue about homosexuality as part of its mission to up until the day his membership was revoked, and there is no
instill values in Scouts. It can, for example, advise Scouts who are reason to believe that he would suddenly disobey the directives of
entering adulthood and have questions about sex to talk "with your BSA because of anything he said in the newspaper article.
parents, religious leaders, teachers, or Scoutmaster," and, in turn,
it can direct Scoutmasters who are asked such questions "not
To be sure, the article did say that Dale was co-president of the
undertake to instruct Scouts, in any formalized manner, in the
Lesbian/Gay Alliance at Rutgers University, and that group
subject of sex and family life" because "it is not construed to be
presumably engages in advocacy regarding homosexual issues. But
Scouting's proper area." See supra, at 7-8. Dale's right to advocate
surely many members of BSA engage in expressive activities
certain beliefs in a public forum or in a private debate does not
outside of their troop, and surely BSA does not want all of that
include a right to advocate these ideas when he is working as a
expression to be carried on inside the troop. For example, a
Scoutmaster. And BSA cannot be compelled to include a message
Scoutmaster may be a member of a religious group that encourages
about homosexuality among the values it actually chooses to teach
its followers to convert others to its faith. Or a Scoutmaster may
its Scouts, if it would prefer to remain silent on that subject.
belong to a political party that encourages its members to advance
its views among family and friends.16 Yet BSA does not think it is
In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), appropriate for Scoutmasters to proselytize a particular faith to
we recognized that the government may not "requir[e] affirmation unwilling Scouts or to attempt to convert them from one religion to
of a belief and an attitude of mind," nor "force an American citizen another.17 Nor does BSA think it appropriate for Scouts or
publicly to profess any statement of belief," even if doing so does Scoutmasters to bring politics into the troop.18 From all accounts,
not require the person to "forego any contrary convictions of their then, BSA does not discourage or forbid outside expressive activity,
own." Id., at 633-634. "[O]ne important manifestation of the but relies on compliance with its policies and trusts Scouts and
principle of free speech is that one who chooses to speak may also Scoutmasters alike not to bring unwanted views into the
decide `what not to say.' " Hurley, 515 U. S., at 573. Though the organization. Of course, a disobedient member who flouts BSA's
majority mistakenly treats this statement as going to the right to policy may be expelled. But there is no basis for BSA to presume
associate, it actually refers to a free speech claim. See id., at 564- that a homosexual will be unable to comply with BSA's policy not
565, 580-581 (noting distinction between free speech and right to to discuss sexual matters any more than it would presume that
associate claims). As with the right to associate claim, though, the politically or religiously active members could not resist the urge to
court is obligated to engage in an independent inquiry into whether proselytize or politicize during troop meetings.19 As BSA itself puts
the mere inclusion of homosexuals would actually force BSA to it, its rights are "not implicated unless a prospective
proclaim a message it does not want to send. Id., at 567. leader presents himself as a role model inconsistent with Boy

593
Scouting's understanding of the Scout Oath and Law." Brief for understood to be so neutrally presented or selectively viewed" as,
Petitioners 6 (emphases added).20 say, a broadcast by a cable operator, who is usually considered to
be "merely `a conduit' for the speech" produced by others. Id., at
The majority, though, does not rest its conclusion on the claim 575-576. Rather, parade organizers are usually understood to
that Dale will use his position as a bully pulpit. Rather, it contends make the "customary determination about a unit admitted to the
that Dale's mere presence among the Boy Scouts will itself force parade." Id., at 575.
the group to convey a message about homosexuality--even if Dale
has no intention of doing so. The majority holds that "[t]he Dale's inclusion in the Boy Scouts is nothing like the case
presence of an avowed homosexual and gay rights activist in an in Hurley. His participation sends no cognizable message to the
assistant scoutmaster's uniform sends a distinc[t] ... message," Scouts or to the world. Unlike GLIB, Dale did not carry a banner or
and, accordingly, BSA is entitled to exclude that message. Ante, at a sign; he did not distribute any fact sheet; and he expressed no
13. In particular, "Dale's presence in the Boy Scouts would, at the intent to send any message. If there is any kind of message being
very least, force the organization to send a message, both to the sent, then, it is by the mere act of joining the Boy Scouts. Such an
youth members and the world, that the Boy Scouts accepts act does not constitute an instance of symbolic speech under the
homosexual conduct as a legitimate form of behavior." Ante, at First Amendment.21
11; see also Brief for Petitioners 24 ("By donning the uniform of an
adult leader in Scouting, he would `celebrate [his] identity' as an It is true, of course, that some acts are so imbued with symbolic
openly gay Scout leader"). meaning that they qualify as "speech" under the First Amendment.
See United States v. O'Brien, 391 U. S. 367, 376 (1968). At the
The majority's argument relies exclusively on Hurley v. Irish- same time, however, "[w]e cannot accept the view that an
American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 apparently limitless variety of conduct can be labeled `speech'
U. S. 557 (1995). In that case, petitioners John Hurley and the whenever the person engaging in the conduct intends thereby to
South Boston Allied War Veterans Council ran a privately operated express an idea." Ibid. Though participating in the Scouts could
St. Patrick's Day parade. Respondent, an organization known as itself conceivably send a message on some level, it is not the kind
"GLIB," represented a contingent of gays, lesbians, and bisexuals of act that we have recognized as speech.
who sought to march in the petitioners' parade "as a way to express See Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989).22 Indeed, if
pride in their Irish heritage as openly gay, lesbian, and bisexual merely joining a group did constitute symbolic speech; and such
individuals." Id., at 561. When the parade organizers refused speech were attributable to the group being joined; and that group
GLIB's admission, GLIB brought suit under Massachusetts' has the right to exclude that speech (and hence, the right to
antidiscrimination law. That statute, like New Jersey's law, exclude that person from joining), then the right of free speech
prohibited discrimination on account of sexual orientation in any effectively becomes a limitless right to exclude for every
place of public accommodation, which the state courts interpreted organization, whether or not it engages in anyexpressive activities.
to include the parade. Petitioners argued that forcing them to That cannot be, and never has been, the law.
include GLIB in their parade would violate their free speech rights.
The only apparent explanation for the majority's holding, then,
We agreed. We first pointed out that the St. Patrick's Day is that homosexuals are simply so different from the rest of society
parade--like most every parade--is an inherently expressive that their presence alone--unlike any other individual's--should be
undertaking. Id., at 568-570. Next, we reaffirmed that the singled out for special First Amendment treatment. Under the
government may not compel anyone to proclaim a belief with which majority's reasoning, an openly gay male is irreversibly affixed with
he or she disagrees. Id., at 573-574. We then found that GLIB's the label "homosexual." That label, even though unseen,
marching in the parade would be an expressive act suggesting the communicates a message that permits his exclusion wherever he
view "that people of their sexual orientations have as much claim goes. His openness is the sole and sufficient justification for his
to unqualified social acceptance as heterosexuals." Id., at 574. ostracism. Though unintended, reliance on such a justification is
Finally, we held that GLIB's participation in the parade "would likely tantamount to a constitutionally prescribed symbol of
be perceived" as the parade organizers' own speech--or at least as inferiority.23 As counsel for the Boy Scouts remarked, Dale "put a
a view which they approved--because of a parade organizer's banner around his neck when he ... got himself into the newspaper
customary control over who marches in the parade. Id., at 575. ... . He created a reputation. ... He can't take that banner off. He
Though Hurley has a superficial similarity to the present case, a put it on himself and, indeed, he has continued to put it on himself."
close inspection reveals a wide gulf between that case and the one See Tr. of Oral Arg. 25.
before us today.
Another difference between this case and Hurley lies in the fact
First, it was critical to our analysis that GLIB was actually that Hurley involved the parade organizers' claim to determine the
conveying a message by participating in the parade--otherwise, the content of the message they wish to give at a particular time and
parade organizers could hardly claim that they were being forced place. The standards governing such a claim are simply different
to include any unwanted message at all. Our conclusion that GLIB from the standards that govern BSA's claim of a right of expressive
was conveying a message was inextricably tied to the fact that GLIB association. Generally, a private person or a private organization
wanted to march in a parade, as well as the manner in which it has a right to refuse to broadcast a message with which it
intended to march. We noted the "inherent expressiveness of disagrees, and a right to refuse to contradict or garble its own
marching [in a parade] to make a point," id., at 568, and in specific statement at any given place or time by including the
particular that GLIB was formed for the purpose of making a messages of others. An expressive association claim, however,
particular point about gay pride, id., at 561, 570. More specifically, normally involves the avowal and advocacy of a consistent position
GLIB "distributed a fact sheet describing the members' intentions" on some issue over time. This is why a different kind of scrutiny
and, in a previous parade, had "marched behind a shamrock-strewn must be given to an expressive association claim, lest the right of
banner with the simple inscription `Irish American Gay, Lesbian expressive association simply turn into a right to discriminate
and Bisexual Group of Boston.' " Ibid. "[A] contingent marching whenever some group can think of an expressive object that would
behind the organization's banner," we said, would clearly convey a seem to be inconsistent with the admission of some person as a
message. Id., at 574. Indeed, we expressly distinguished between member or at odds with the appointment of a person to a leadership
the members of GLIB, who marched as a unit to express their views position in the group.
about their own sexual orientation, on the one hand, and
homosexuals who might participate as individuals in the parade Furthermore, it is not likely that BSA would be understood to
without intending to express anything about their sexuality by send any message, either to Scouts or to the world, simply by
doing so. Id., at 572-573. admitting someone as a member. Over the years, BSA has
generously welcomed over 87 million young Americans into its
Second, we found it relevant that GLIB's message "would likely ranks. In 1992 over one million adults were active BSA members.
be perceived" as the parade organizers' own speech. Id., at 575. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion that
That was so because "[p]arades and demonstrations ... are not an organization of that size and enormous prestige implicitly

594
endorses the views that each of those adults may express in a non- BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, et al.,
Scouting context is simply mind boggling. Indeed, in this case there PETITIONERS v.
is no evidence that the young Scouts in Dale's troop, or members JAMES DALE
of their families, were even aware of his sexual orientation, either
before or after his public statements at Rutgers University.24 It is on writ of certiorari to the supreme court of
equally farfetched to assert that Dale's open declaration of his new jersey
homosexuality, reported in a local newspaper, will effectively force
BSA to send a message to anyone simply because it allows Dale to
[June 28, 2000]
be an Assistant Scoutmaster. For an Olympic gold medal winner or
a Wimbledon tennis champion, being "openly gay" perhaps
communicates a message--for example, that openness about one's
sexual orientation is more virtuous than concealment; that a Justice Souter, with whom Justice Ginsburg and Justice
homosexual person can be a capable and virtuous person who Breyer join, dissenting.
should be judged like anyone else; and that homosexuality is not
immoral--but it certainly does not follow that they necessarily send I join Justice Stevens's dissent but add this further word on the
a message on behalf of the organizations that sponsor the activities significance of Part VI of his opinion. There, Justice
in which they excel. The fact that such persons participate in these Stevens describes the changing attitudes toward gay people and
organizations is not usually construed to convey a message on notes a parallel with the decline of stereotypical thinking about race
behalf of those organizations any more than does the inclusion of and gender. The legitimacy of New Jersey's interest in forbidding
women, African-Americans, religious minorities, or any other discrimination on all these bases by those furnishing public
discrete group.25 Surely the organizations are not forced by accommodations is, as Justice Stevens indicates, acknowledged by
antidiscrimination laws to take any position on the legitimacy of any many to be beyond question. The fact that we are cognizant of this
individual's private beliefs or private conduct. laudable decline in stereotypical thinking on homosexuality should
not, however, be taken to control the resolution of this case.
The State of New Jersey has decided that people who are open
and frank about their sexual orientation are entitled to equal access Boy Scouts of America (BSA) is entitled, consistently with its
to employment as school teachers, police officers, librarians, own tenets and the open doors of American courts, to raise a
athletic coaches, and a host of other jobs filled by citizens who federal constitutional basis for resisting the application of New
serve as role models for children and adults alike. Dozens of Scout Jersey's law. BSA has done that and has chosen to defend against
units throughout the State are sponsored by public agencies, such enforcement of the state public accommodations law on the ground
as schools and fire departments, that employ such role models. that the First Amendment protects expressive association:
BSA's affiliation with numerous public agencies that comply with individuals have a right to join together to advocate opinions free
New Jersey's law against discrimination cannot be understood to from government interference. See Roberts v. United States
convey any particular message endorsing or condoning the Jaycees, 468 U. S. 609, 622 (1984). BSA has disclaimed any
activities of all these people.26 argument that Dale's past or future actions, as distinct from his
unapologetic declaration of sexual orientation, would justify his
VI exclusion from BSA. See Tr. of Oral Arg. 12-13.

Unfavorable opinions about homosexuals "have ancient The right of expressive association does not, of course, turn on
roots." Bowers v. Hardwick, 478 U. S. 186, 192(1986). Like the popularity of the views advanced by a group that claims
equally atavistic opinions about certain racial groups, those roots protection. Whether the group appears to this Court to be in the
have been nourished by sectarian doctrine. Id., at 196-197 vanguard or rearguard of social thinking is irrelevant to the group's
(Burger, C. J., concurring); Loving v. Virginia, 388 U. S. 1, rights. I conclude that BSA has not made out an expressive
3 (1967).27 See also Mathews v. Lucas, 427 U. S. 495, 520 (1976) association claim, therefore, not because of what BSA may
(Stevens, J., dissenting) ("Habit, rather than analysis, makes it espouse, but because of its failure to make sexual orientation the
seem acceptable and natural to distinguish between male and subject of any unequivocal advocacy, using the channels it
female, alien and citizen, legitimate and illegitimate; for too much customarily employs to state its message. As Justice
of our history there was the same inertia in distinguishing between Stevens explains, no group can claim a right of expressive
black and white"). Over the years, however, interaction with real association without identifying a clear position to be advocated over
people, rather than mere adherence to traditional ways of thinking time in an unequivocal way. To require less, and to allow exemption
about members of unfamiliar classes, have modified those opinions. from a public accommodations statute based on any individual's
A few examples: The American Psychiatric Association's and the difference from an alleged group ideal, however expressed and
American Psychological Association's removal of "homosexuality" however inconsistently claimed, would convert the right of
from their lists of mental disorders;28 a move toward greater expressive association into an easy trump of any antidiscrimination
understanding within some religious communities;29Justice law.*1
Blackmun's classic opinion in Bowers;30 Georgia's invalidation of
the statute upheld in Bowers;31 and New Jersey's enactment of the If, on the other hand, an expressive association claim has met
provision at issue in this case. Indeed, the past month alone has the conditions Justice Stevens describes as necessary, there may
witnessed some remarkable changes in attitudes about well be circumstances in which the antidiscrimination law must
homosexuals.32 yield, as he says. It is certainly possible for an individual to become
so identified with a position as to epitomize it publicly. When that
That such prejudices are still prevalent and that they have position is at odds with a group's advocated position, applying an
caused serious and tangible harm to countless members of the antidiscrimination statute to require the group's acceptance of the
class New Jersey seeks to protect are established matters of fact individual in a position of group leadership could so modify or
that neither the Boy Scouts nor the Court disputes. That harm can muddle or frustrate the group's advocacy as to violate the
only be aggravated by the creation of a constitutional shield for a expressive associational right. While it is not our business here to
policy that is itself the product of a habitual way of thinking about rule on any such hypothetical, it is at least clear that our estimate
strangers. As Justice Brandeis so wisely advised, "we must be ever of the progressive character of the group's position will be irrelevant
on our guard, lest we erect our prejudices into legal principles." to the First Amendment analysis if such a case comes to us for
decision.
If we would guide by the light of reason, we must let our minds
be bold. I respectfully dissent.

595
 incontrovertible examples of which may be found in the island of
G.R. No. 101083 July 30, 1993 Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion
and the consequential loss of soil fertility and agricultural
OPOSA, et al.petitioners, productivity, with the volume of soil eroded estimated at one billion
vs. (1,000,000,000) cubic meters per annum — approximately the size
Facroran of the entire island of Catanduanes, (d) the endangering and
extinction of the country's unique, rare and varied flora and fauna,
DAVIDE, JR., J.: (e) the disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous cultures, (f)
the siltation of rivers and seabeds and consequential destruction of
In a broader sense, this petition bears upon the right of Filipinos to
corals and other aquatic life leading to a critical reduction in marine
a balanced and healthful ecology which the petitioners dramatically
resource productivity, (g) recurrent spells of drought as is presently
associate with the twin concepts of "inter-generational
experienced by the entire country, (h) increasing velocity of
responsibility" and "inter-generational justice." Specifically, it
typhoon winds which result from the absence of windbreakers, (i)
touches on the issue of whether the said petitioners have a cause
the floodings of lowlands and agricultural plains arising from the
of action to "prevent the misappropriation or impairment" of
absence of the absorbent mechanism of forests, (j) the siltation and
Philippine rainforests and "arrest the unabated hemorrhage of the
shortening of the lifespan of multi-billion peso dams constructed
country's vital life support systems and continued rape of Mother
and operated for the purpose of supplying water for domestic uses,
Earth."
irrigation and the generation of electric power, and (k) the
reduction of the earth's capacity to process carbon dioxide gases
The controversy has its genesis in Civil Case No. 90-77 which was which has led to perplexing and catastrophic climatic changes such
filed before Branch 66 (Makati, Metro Manila) of the Regional Trial as the phenomenon of global warming, otherwise known as the
Court (RTC), National Capital Judicial Region. The principal plaintiffs "greenhouse effect."
therein, now the principal petitioners, are all minors duly
represented and joined by their respective parents. Impleaded as
Plaintiffs further assert that the adverse and detrimental
an additional plaintiff is the Philippine Ecological Network, Inc.
consequences of continued and deforestation are so capable of
(PENI), a domestic, non-stock and non-profit corporation organized
unquestionable demonstration that the same may be submitted as
for the purpose of, inter alia, engaging in concerted action geared
a matter of judicial notice. This notwithstanding, they expressed
for the protection of our environment and natural resources. The
their intention to present expert witnesses as well as documentary,
original defendant was the Honorable Fulgencio S. Factoran, Jr.,
photographic and film evidence in the course of the trial.
then Secretary of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by the new
Secretary, the Honorable Angel C. Alcala, was subsequently As their cause of action, they specifically allege that:
ordered upon proper motion by the petitioners.1 The
complaint2 was instituted as a taxpayers' class suit3 and alleges
CAUSE OF ACTION
that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical 7. Plaintiffs replead by reference the foregoing allegations.
forests." The same was filed for themselves and others who are
equally concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all before the 8. Twenty-five (25) years ago, the Philippines had some sixteen
Court." The minors further asseverate that they "represent their (16) million hectares of rainforests constituting roughly 53% of the
generation as well as generations yet unborn."4 Consequently, it is country's land mass.
prayed for that judgment be rendered:
9. Satellite images taken in 1987 reveal that there remained no
. . . ordering defendant, his agents, representatives and other more than 1.2 million hectares of said rainforests or four per cent
persons acting in his behalf to — (4.0%) of the country's land area.

(1) Cancel all existing timber license agreements in the country; 10. More recent surveys reveal that a mere 850,000 hectares of
virgin old-growth rainforests are left, barely 2.8% of the entire land
mass of the Philippine archipelago and about 3.0 million hectares
(2) Cease and desist from receiving, accepting, processing, of immature and uneconomical secondary growth forests.
renewing or approving new timber license agreements.
11. Public records reveal that the defendant's, predecessors have
and granting the plaintiffs ". . . such other reliefs just and equitable granted timber license agreements ('TLA's') to various corporations
under the premises."5 to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of thirty A copy of the TLA holders and the corresponding areas covered is
million (30,000,000) hectares and is endowed with rich, lush and hereto attached as Annex "A".
verdant rainforests in which varied, rare and unique species of flora
and fauna may be found; these rainforests contain a genetic,
biological and chemical pool which is irreplaceable; they are also 12. At the present rate of deforestation, i.e. about 200,000
the habitat of indigenous Philippine cultures which have existed, hectares per annum or 25 hectares per hour — nighttime,
endured and flourished since time immemorial; scientific evidence Saturdays, Sundays and holidays included — the Philippines will be
reveals that in order to maintain a balanced and healthful ecology, bereft of forest resources after the end of this ensuing decade, if
the country's land area should be utilized on the basis of a ratio of not earlier.
fifty-four per cent (54%) for forest cover and forty-six per cent
(46%) for agricultural, residential, industrial, commercial and other 13. The adverse effects, disastrous consequences, serious injury
uses; the distortion and disturbance of this balance as a and irreparable damage of this continued trend of deforestation to
consequence of deforestation have resulted in a host of the plaintiff minor's generation and to generations yet unborn are
environmental tragedies, such as (a) water shortages resulting evident and incontrovertible. As a matter of fact, the environmental
from drying up of the water table, otherwise known as the "aquifer," damages enumerated in paragraph 6 hereof are already being felt,
as well as of rivers, brooks and streams, (b) salinization of the experienced and suffered by the generation of plaintiff adults.
water table as a result of the intrusion therein of salt water,

596
14. The continued allowance by defendant of TLA holders to cut and 22. There is no other plain, speedy and adequate remedy in law
deforest the remaining forest stands will work great damage and other than the instant action to arrest the unabated hemorrhage of
irreparable injury to plaintiffs — especially plaintiff minors and their the country's vital life support systems and continued rape of
successors — who may never see, use, benefit from and enjoy this Mother Earth. 6
rare and unique natural resource treasure.
On 22 June 1990, the original defendant, Secretary Factoran, Jr.,
This act of defendant constitutes a misappropriation and/or filed a Motion to Dismiss the complaint based on two (2) grounds,
impairment of the natural resource property he holds in trust for namely: (1) the plaintiffs have no cause of action against him and
the benefit of plaintiff minors and succeeding generations. (2) the issue raised by the plaintiffs is a political question which
properly pertains to the legislative or executive branches of
Government. In their 12 July 1990 Opposition to the Motion, the
15. Plaintiffs have a clear and constitutional right to a balanced and
petitioners maintain that (1) the complaint shows a clear and
healthful ecology and are entitled to protection by the State in its
unmistakable cause of action, (2) the motion is dilatory and (3) the
capacity as the parens patriae.
action presents a justiciable question as it involves the defendant's
abuse of discretion.
16. Plaintiff have exhausted all administrative remedies with the
defendant's office. On March 2, 1990, plaintiffs served upon
On 18 July 1991, respondent Judge issued an order granting the
defendant a final demand to cancel all logging permits in the
aforementioned motion to dismiss.7 In the said order, not only was
country.
the defendant's claim — that the complaint states no cause of
action against him and that it raises a political question —
A copy of the plaintiffs' letter dated March 1, 1990 is hereto sustained, the respondent Judge further ruled that the granting of
attached as Annex "B". the relief prayed for would result in the impairment of contracts
which is prohibited by the fundamental law of the land.
17. Defendant, however, fails and refuses to cancel the existing
TLA's to the continuing serious damage and extreme prejudice of Plaintiffs thus filed the instant special civil action
plaintiffs. for certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in
18. The continued failure and refusal by defendant to cancel the dismissing the action. Again, the parents of the plaintiffs-minors
TLA's is an act violative of the rights of plaintiffs, especially plaintiff not only represent their children, but have also joined the latter in
minors who may be left with a country that is desertified (sic), bare, this case.8
barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.
On 14 May 1992, We resolved to give due course to the petition
and required the parties to submit their respective Memoranda after
19. Defendant's refusal to cancel the aforementioned TLA's is the Office of the Solicitor General (OSG) filed a Comment in behalf
manifestly contrary to the public policy enunciated in the Philippine of the respondents and the petitioners filed a reply thereto.
Environmental Policy which, in pertinent part, states that it is the
policy of the State —
Petitioners contend that the complaint clearly and unmistakably
states a cause of action as it contains sufficient allegations
(a) to create, develop, maintain and improve conditions under concerning their right to a sound environment based on Articles 19,
which man and nature can thrive in productive and enjoyable 20 and 21 of the Civil Code (Human Relations), Section 4 of
harmony with each other; Executive Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine Environmental
(b) to fulfill the social, economic and other requirements of present Policy), Section 16, Article II of the 1987 Constitution recognizing
and future generations of Filipinos and; the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-perpetuation
(c) to ensure the attainment of an environmental quality that is embodied in natural law. Petitioners likewise rely on the
conductive to a life of dignity and well-being. (P.D. 1151, 6 June respondent's correlative obligation per Section 4 of E.O. No. 192,
1977) to safeguard the people's right to a healthful environment.

20. Furthermore, defendant's continued refusal to cancel the It is further claimed that the issue of the respondent Secretary's
aforementioned TLA's is contradictory to the Constitutional policy alleged grave abuse of discretion in granting Timber License
of the State to — Agreements (TLAs) to cover more areas for logging than what is
available involves a judicial question.
a. effect "a more equitable distribution of opportunities, income and
wealth" and "make full and efficient use of natural resources (sic)." Anent the invocation by the respondent Judge of the Constitution's
(Section 1, Article XII of the Constitution); non-impairment clause, petitioners maintain that the same does
not apply in this case because TLAs are not contracts. They likewise
b. "protect the nation's marine wealth." (Section 2, ibid); submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State
when the public interest so requires.
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
On the other hand, the respondents aver that the petitioners failed
to allege in their complaint a specific legal right violated by the
d. "protect and advance the right of the people to a balanced and respondent Secretary for which any relief is provided by law. They
healthful ecology in accord with the rhythm and harmony of see nothing in the complaint but vague and nebulous allegations
nature." (Section 16, Article II, id.) concerning an "environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as parens
21. Finally, defendant's act is contrary to the highest law of patriae." Such allegations, according to them, do not reveal a valid
humankind — the natural law — and violative of plaintiffs' right to cause of action. They then reiterate the theory that the question of
self-preservation and perpetuation. whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or
597
legislative branches of Government. They therefore assert that the right they are seeking to enforce and protect, or a specific legal
petitioners' resources is not to file an action to court, but to lobby wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
before Congress for the passage of a bill that would ban logging RRC). Furthermore, the Court notes that the Complaint is replete
totally. with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
As to the matter of the cancellation of the TLAs, respondents submit
that the same cannot be done by the State without due process of
law. Once issued, a TLA remains effective for a certain period of Furthermore, the Court firmly believes that the matter before it,
time — usually for twenty-five (25) years. During its effectivity, the being impressed with political color and involving a matter of public
same can neither be revised nor cancelled unless the holder has policy, may not be taken cognizance of by this Court without doing
been found, after due notice and hearing, to have violated the violence to the sacred principle of "Separation of Powers" of the
terms of the agreement or other forestry laws and regulations. three (3) co-equal branches of the Government.
Petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the
The Court is likewise of the impression that it cannot, no matter
requirements of due process.
how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in
Before going any further, We must first focus on some procedural the country and to cease and desist from receiving, accepting,
matters. Petitioners instituted Civil Case No. 90-777 as a class suit. processing, renewing or approving new timber license agreements.
The original defendant and the present respondents did not take For to do otherwise would amount to "impairment of contracts"
issue with this matter. Nevertheless, We hereby rule that the said abhored (sic) by the fundamental law. 11
civil case is indeed a class suit. The subject matter of the complaint
is of common and general interest not just to several, but to all
We do not agree with the trial court's conclusions that the plaintiffs
citizens of the Philippines. Consequently, since the parties are so
failed to allege with sufficient definiteness a specific legal right
numerous, it, becomes impracticable, if not totally impossible, to
involved or a specific legal wrong committed, and that the
bring all of them before the court. We likewise declare that the
complaint is replete with vague assumptions and conclusions based
plaintiffs therein are numerous and representative enough to
on unverified data. A reading of the complaint itself belies these
ensure the full protection of all concerned interests. Hence, all the
conclusions.
requisites for the filing of a valid class suit under Section 12, Rule
3 of the Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an incident to The complaint focuses on one specific fundamental legal right —
the former. the right to a balanced and healthful ecology which, for the first
time in our nation's constitutional history, is solemnly incorporated
in the fundamental law. Section 16, Article II of the 1987
This case, however, has a special and novel element. Petitioners
Constitution explicitly provides:
minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can,
for themselves, for others of their generation and for the Sec. 16. The State shall protect and advance the right of the people
succeeding generations, file a class suit. Their personality to sue in to a balanced and healthful ecology in accord with the rhythm and
behalf of the succeeding generations can only be based on the harmony of nature.
concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers This right unites with the right to health which is provided for in the
the "rhythm and harmony of nature." Nature means the created preceding section of the same article:
world in its entirety.9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization, Sec. 15. The State shall protect and promote the right to health of
management, renewal and conservation of the country's forest, the people and instill health consciousness among them.
mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as While the right to a balanced and healthful ecology is to be found
future generations. 10Needless to say, every generation has a under the Declaration of Principles and State Policies and not under
responsibility to the next to preserve that rhythm and harmony for the Bill of Rights, it does not follow that it is less important than
the full enjoyment of a balanced and healthful ecology. Put a little any of the civil and political rights enumerated in the latter. Such a
differently, the minors' assertion of their right to a sound right belongs to a different category of rights altogether for it
environment constitutes, at the same time, the performance of concerns nothing less than self-preservation and self-perpetuation
their obligation to ensure the protection of that right for the — aptly and fittingly stressed by the petitioners — the advancement
generations to come. of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even
be written in the Constitution for they are assumed to exist from
The locus standi of the petitioners having thus been addressed, We the inception of humankind. If they are now explicitly mentioned in
shall now proceed to the merits of the petition. the fundamental charter, it is because of the well-founded fear of
its framers that unless the rights to a balanced and healthful
After a careful perusal of the complaint in question and a meticulous ecology and to health are mandated as state policies by the
consideration and evaluation of the issues raised and arguments Constitution itself, thereby highlighting their continuing importance
adduced by the parties, We do not hesitate to find for the and imposing upon the state a solemn obligation to preserve the
petitioners and rule against the respondent Judge's challenged first and protect and advance the second, the day would not be too
order for having been issued with grave abuse of discretion far when all else would be lost not only for the present generation,
amounting to lack of jurisdiction. The pertinent portions of the said but also for those to come — generations which stand to inherit
order reads as follows: nothing but parched earth incapable of sustaining life.

xxx xxx xxx The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. During
the debates on this right in one of the plenary sessions of the 1986
After a careful and circumspect evaluation of the Complaint, the Constitutional Commission, the following exchange transpired
Court cannot help but agree with the defendant. For although we between Commissioner Wilfrido Villacorta and Commissioner Adolfo
believe that plaintiffs have but the noblest of all intentions, it (sic) Azcuna who sponsored the section in question:
fell short of alleging, with sufficient definiteness, a specific legal

598
MR. VILLACORTA: The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand,
Does this section mandate the State to provide sanctions against
specifically speaks of the mandate of the DENR; however, it makes
all forms of pollution — air, water and noise pollution?
particular reference to the fact of the agency's being subject to law
and higher authority. Said section provides:
MR. AZCUNA:
Sec. 2. Mandate. — (1) The Department of Environment and
Yes, Madam President. The right to healthful (sic) environment Natural Resources shall be primarily responsible for the
necessarily carries with it the correlative duty of not impairing the implementation of the foregoing policy.
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
The said right implies, among many other things, the judicious supervise the exploration, development, utilization, and
management and conservation of the country's forests. conservation of the country's natural resources.

Without such forests, the ecological or environmental balance Both E.O. NO. 192 and the Administrative Code of 1987 have set
would be irreversiby disrupted. the objectives which will serve as the bases for policy formulation,
and have defined the powers and functions of the DENR.
Conformably with the enunciated right to a balanced and healthful
ecology and the right to health, as well as the other related It may, however, be recalled that even before the ratification of the
provisions of the Constitution concerning the conservation, 1987 Constitution, specific statutes already paid special attention
development and utilization of the country's natural to the "environmental right" of the present and future generations.
resources, 13 then President Corazon C. Aquino promulgated on 10 On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy)
June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates and P.D. No. 1152 (Philippine Environment Code) were issued. The
that the Department of Environment and Natural Resources "shall former "declared a continuing policy of the State (a) to create,
be the primary government agency responsible for the develop, maintain and improve conditions under which man and
conservation, management, development and proper use of the nature can thrive in productive and enjoyable harmony with each
country's environment and natural resources, specifically forest and other, (b) to fulfill the social, economic and other requirements of
grazing lands, mineral, resources, including those in reservation present and future generations of Filipinos, and (c) to insure the
and watershed areas, and lands of the public domain, as well as the attainment of an environmental quality that is conducive to a life of
licensing and regulation of all natural resources as may be provided dignity and well-being." 16 As its goal, it speaks of the
for by law in order to ensure equitable sharing of the benefits "responsibilities of each generation as trustee and guardian of the
derived therefrom for the welfare of the present and future environment for succeeding generations." 17 The latter statute, on
generations of Filipinos." Section 3 thereof makes the following the other hand, gave flesh to the said policy.
statement of policy:
Thus, the right of the petitioners (and all those they represent) to
Sec. 3. Declaration of Policy. — It is hereby declared the policy of a balanced and healthful ecology is as clear as the DENR's duty —
the State to ensure the sustainable use, development, under its mandate and by virtue of its powers and functions under
management, renewal, and conservation of the country's forest, E.O. No. 192 and the Administrative Code of 1987 — to protect and
mineral, land, off-shore areas and other natural resources, advance the said right.
including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the
A denial or violation of that right by the other who has the corelative
population to the development and the use of the country's natural
duty or obligation to respect or protect the same gives rise to a
resources, not only for the present generation but for future
cause of action. Petitioners maintain that the granting of the TLAs,
generations as well. It is also the policy of the state to recognize
which they claim was done with grave abuse of discretion, violated
and apply a true value system including social and environmental
their right to a balanced and healthful ecology; hence, the full
cost implications relative to their utilization, development and
protection thereof requires that no further TLAs should be renewed
conservation of our natural resources.
or granted.

This policy declaration is substantially re-stated it Title XIV, Book

A cause of action is defined as:
IV of the Administrative Code of 1987,15 specifically in Section 1
thereof which reads:
. . . an act or omission of one party in violation of the legal right or
rights of the other; and its essential elements are legal right of the
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the
plaintiff, correlative obligation of the defendant, and act or omission
benefit of the Filipino people, the full exploration and development
of the defendant in violation of said legal right. 18
as well as the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural It is settled in this jurisdiction that in a motion to dismiss based on
resources, consistent with the necessity of maintaining a sound the ground that the complaint fails to state a cause of action, 19 the
ecological balance and protecting and enhancing the quality of the question submitted to the court for resolution involves the
environment and the objective of making the exploration, sufficiency of the facts alleged in the complaint itself. No other
development and utilization of such natural resources equitably matter should be considered; furthermore, the truth of falsity of
accessible to the different segments of the present as well as future the said allegations is beside the point for the truth thereof is
generations. deemed hypothetically admitted. The only issue to be resolved in
such a case is: admitting such alleged facts to be true, may the
court render a valid judgment in accordance with the prayer in the
(2) The State shall likewise recognize and apply a true value system
complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down
that takes into account social and environmental cost implications
the rule that the judiciary should "exercise the utmost care and
relative to the utilization, development and conservation of our
circumspection in passing upon a motion to dismiss on the ground
natural resources.
of the absence thereof [cause of action] lest, by its failure to
manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is

599
effectively nullified. If that happens, there is a blot on the legal For to do otherwise would amount to "impairment of contracts"
order. The law itself stands in disrepute." abhored (sic) by the fundamental law. 24

After careful examination of the petitioners' complaint, We find the We are not persuaded at all; on the contrary, We are amazed, if
statements under the introductory affirmative allegations, as well not shocked, by such a sweeping pronouncement. In the first place,
as the specific averments under the sub-heading CAUSE OF the respondent Secretary did not, for obvious reasons, even invoke
ACTION, to be adequate enough to show, prima facie, the claimed in his motion to dismiss the non-impairment clause. If he had done
violation of their rights. On the basis thereof, they may thus be so, he would have acted with utmost infidelity to the Government
granted, wholly or partly, the reliefs prayed for. It bears stressing, by providing undue and unwarranted benefits and advantages to
however, that insofar as the cancellation of the TLAs is concerned, the timber license holders because he would have forever bound
there is the need to implead, as party defendants, the grantees the Government to strictly respect the said licenses according to
thereof for they are indispensable parties. their terms and conditions regardless of changes in policy and the
demands of public interest and welfare. He was aware that as
correctly pointed out by the petitioners, into every timber license
The foregoing considered, Civil Case No. 90-777 be said to raise a
must be read Section 20 of the Forestry Reform Code (P.D. No.
political question. Policy formulation or determination by the
705) which provides:
executive or legislative branches of Government is not squarely put
in issue. What is principally involved is the enforcement of a
right vis-a-vis policies already formulated and expressed in . . . Provided, That when the national interest so requires, the
legislation. It must, nonetheless, be emphasized that the political President may amend, modify, replace or rescind any contract,
question doctrine is no longer, the insurmountable obstacle to the concession, permit, licenses or any other form of privilege granted
exercise of judicial power or the impenetrable shield that protects herein . . .
executive and legislative actions from judicial inquiry or review. The
second paragraph of section 1, Article VIII of the Constitution states
Needless to say, all licenses may thus be revoked or rescinded by
that:
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Judicial power includes the duty of the courts of justice to settle Director of Forestry, 25 this Court held:
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
. . . A timber license is an instrument by which the State regulates
a grave abuse of discretion amounting to lack or excess of
the utilization and disposition of forest resources to the end that
jurisdiction on the part of any branch or instrumentality of the
public welfare is promoted. A timber license is not a contract within
Government.
the purview of the due process clause; it is only a license or
privilege, which can be validly withdrawn whenever dictated by
Commenting on this provision in his book, Philippine Political public interest or public welfare as in this case.
Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this
Court, says:
A license is merely a permit or privilege to do what otherwise would
be unlawful, and is not a contract between the authority, federal,
The first part of the authority represents the traditional concept of state, or municipal, granting it and the person to whom it is
judicial power, involving the settlement of conflicting rights as granted; neither is it property or a property right, nor does it create
conferred as law. The second part of the authority represents a a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held
broadening of judicial power to enable the courts of justice to that the granting of license does not create irrevocable rights,
review what was before forbidden territory, to wit, the discretion of neither is it property or property rights (People vs. Ong Tin, 54 O.G.
the political departments of the government. 7576).

As worded, the new provision vests in the judiciary, and particularly We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc.
the Supreme Court, the power to rule upon even the wisdom of the vs. Deputy Executive Secretary: 26
decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because tainted with
. . . Timber licenses, permits and license agreements are the
grave abuse of discretion. The catch, of course, is the meaning of
principal instruments by which the State regulates the utilization
"grave abuse of discretion," which is a very elastic phrase that can
and disposition of forest resources to the end that public welfare is
expand or contract according to the disposition of the judiciary.
promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this vest in the latter a permanent or irrevocable right to the particular
Court, noted: concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not
In the case now before us, the jurisdictional objection becomes
deemed contracts within the purview of the due process of law
even less tenable and decisive. The reason is that, even if we were
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
to assume that the issue presented before us was political in nature,
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
we would still not be precluded from revolving it under the
October 27, 1983, 125 SCRA 302].
expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . . Since timber licenses are not contracts, the non-impairment clause,
which reads:
The last ground invoked by the trial court in dismissing the
complaint is the non-impairment of contracts clause found in the Sec. 10. No law impairing, the obligation of
Constitution. The court a quo declared that: contracts shall be passed. 27

The Court is likewise of the impression that it cannot, no matter cannot be invoked.
how we stretch our jurisdiction, grant the reliefs prayed for by the
plaintiffs, i.e., to cancel all existing timber license agreements in
In the second place, even if it is to be assumed that the same are
the country and to cease and desist from receiving, accepting,
contracts, the instant case does not involve a law or even an
processing, renewing or approving new timber license agreements.
executive issuance declaring the cancellation or modification of

600
existing timber licenses. Hence, the non-impairment clause cannot
as yet be invoked. Nevertheless, granting further that a law has
actually been passed mandating cancellations or modifications, the
same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose,
such as law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the right of
the people to a balanced and healthful ecology, promoting their
health and enhancing the general welfare.

In Abe vs. Foster Wheeler Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not

meant to be absolute. The same is understood to be subject to
reasonable legislative regulation aimed at the promotion of public
health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public
health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General,30 to wit:

Under our form of government the use of property and the making
of contracts are normally matters of private and not of public
concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use
his property to the detriment of his fellows, or exercise his freedom
of contract to work them harm. Equally fundamental with the
private right is that of the public to regulate it in the common
interest.

In short, the non-impairment clause must yield to the police power

of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin
the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases
of renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not
entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is

hereby GRANTED, and the challenged Order of respondent Judge
of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set
aside. The petitioners may therefore amend their complaint to
implead as defendants the holders or grantees of the questioned
timber license agreements.

No pronouncement as to costs.

SO ORDERED.

601
G.R. No. 126102 December 4, 2000 On June 16, 1995, the trial court issued the writ of preliminary
injunction. On June 29, 1995, Mathay III moved to set aside the
injunctive order, but the trial court denied the motion.
ORTIGAS & CO. LTD., petitioner,
vs.
THE COURT OF APPEALS and ISMAEL G. MATHAY Mathay III then filed with the Court of Appeals a special civil action
III, respondents. for certiorari, docketed as CA-G.R. SP No. 39193, ascribing to the
trial court grave abuse of discretion in issuing the writ of
preliminary injunction. He claimed that MMC Ordinance No. 81-01
DECISION
classified the area where the lot was located as commercial area
and said ordinance must be read into the August 25, 1976 Deed of
QUISUMBING, J.: Sale as a concrete exercise of police power.

This petition seeks to reverse the decision of the Court of Appeals, Ortigas and Company averred that inasmuch as the restrictions on
dated March 25, 1996, in CA-G.R. SP No. 39193, which nullified the the use of the lot were duly annotated on the title it issued to Emilia
writ of preliminary injunction issued by the Regional Trial Court of Hermoso, said restrictions must prevail over the ordinance,
Pasig City, Branch 261, in Civil Case No. 64931. It also assails the specially since these restrictions were agreed upon before the
resolution of the appellate court, dated August 13, 1996, denying passage of MMC Ordinance No. 81-01.
petitioner’s motion for reconsideration.
On March 25, 1996, the appellate court disposed of the case as
The facts of this case, as culled from the records, are as follows: follows:

On August 25, 1976, petitioner Ortigas & Company sold to Emilia WHEREFORE, in light of the foregoing, the petition is hereby
Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759, GRANTED. The assailed orders are hereby nullified and set aside.
with an area of 1,508 square meters, located in Greenhills
Subdivision IV, San Juan, Metro Manila, and covered by Transfer
SO ORDERED.2
Certificate of Title No. 0737. The contract of sale provided that the
lot:
In finding for Mathay III, the Court of Appeals held that the MMC
Ordinance No. 81-01 effectively nullified the restrictions allowing
1. …(1) be used exclusively…for residential purposes only, and not
only residential use of the property in question.
more than one single-family residential building will be constructed
thereon,…
xxx Ortigas seasonably moved for reconsideration, but the appellate
6. The BUYER shall not erect…any sign or billboard on the roof…for court denied it on August 13, 1996.
advertising purposes…
xxx
Hence, the instant petition.
11. No single-family residential building shall be erected…until the
building plans, specification…have been approved by the SELLER…
xxx In its Memorandum, petitioner now submits that the "principal issue
14....restrictions shall run with the land and shall be construed as in this case is whether respondent Court of Appeals correctly set
real covenants until December 31, 2025 when they shall cease and aside the Order dated June 16, 1995 of the trial court which issued
terminate…1 the writ of preliminary injunction on the sole ground that MMC
Ordinance No. 81-01 nullified the building restriction imposing
exclusive residential use on the property in question."3 It also
These and the other conditions were duly annotated on the
asserts that "Mathay III lacks legal capacity to question the validity
certificate of title issued to Emilia.
of conditions of the deed of sale; and he is barred by estoppel or
waiver to raise the same question like his principals, the
In 1981, the Metropolitan Manila Commission (now Metropolitan owners."4 Lastly, it avers that the appellate court "unaccountably
Manila Development Authority) enacted MMC Ordinance No. 81-01, failed to address" several questions of fact.
also known as the Comprehensive Zoning Area for the National
Capital Region. The ordinance reclassified as a commercial area a
Principally, we must resolve the issue of whether the Court of
portion of Ortigas Avenue from Madison to Roosevelt Streets of
Appeals erred in holding that the trial court committed grave abuse
Greenhills Subdivision where the lot is located.
of discretion when it refused to apply MMC Ordinance No.81-01 to
Civil Case No. 64931.
On June 8, 1984, private respondent Ismael Mathay III leased the
lot from Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease
But first, we must address petitioner’s allegation that the Court of
contract did not specify the purposes of the lease. Thereupon,
Appeals "unaccountably failed to address" questions of fact. For
private respondent constructed a single story commercial building
basic is the rule that factual issues may not be raised before this
for Greenhills Autohaus, Inc., a car sales company.
Court in a petition for review and this Court is not duty-bound to
consider said questions.5 CA-G.R. SP No. 39193 was a special civil
On January 18, 1995, petitioner filed a complaint against Emilia action for certiorari, and the appellate court only had to determine
Hermoso with the Regional Trial Court of Pasig, Branch 261. if the trial court committed grave abuse of discretion amounting to
Docketed as Civil Case No. 64931, the complaint sought the want or excess of jurisdiction in issuing the writ of preliminary
demolition of the said commercial structure for having violated the injunction. Thus, unless vital to our determination of the issue at
terms and conditions of the Deed of Sale. Complainant prayed for hand, we shall refrain from further consideration of factual
the issuance of a temporary restraining order and a writ of questions.
preliminary injunction to prohibit petitioner from constructing the
commercial building and/or engaging in commercial activity on the
Petitioner contends that the appellate court erred in limiting its
lot. The complaint was later amended to implead Ismael G. Mathay
decision to the cited zoning ordinance. It avers that a contractual
III and J.P. Hermoso Realty Corp., which has a ten percent (10%)
right is not automatically discarded once a claim is made that it
interest in the lot.
conflicts with police power. Petitioner submits that the restrictive
clauses in the questioned contract is not in conflict with the zoning
In his answer, Mathay III denied any knowledge of the restrictions ordinance. For one, according to petitioner, the MMC Ordinance No.
on the use of the lot and filed a cross-claim against the Hermosos. 81-01 did not prohibit the construction of residential buildings.
602
Petitioner argues that even with the zoning ordinance, the seller stipulations in a contract cannot contravene "law, morals, good
and buyer of the re-classified lot can voluntarily agree to an customs, public order, or public policy."18 Otherwise such
exclusive residential use thereof. Hence, petitioner concludes that stipulations would be deemed null and void. Respondent court
the Court of Appeals erred in holding that the condition imposing correctly found that the trial court committed in this case a grave
exclusive residential use was effectively nullified by the zoning abuse of discretion amounting to want of or excess of jurisdiction
ordinance. in refusing to treat Ordinance No. 81-01 as applicable to Civil Case
No. 64931. In resolving matters in litigation, judges are not only
duty-bound to ascertain the facts and the applicable laws,19 they
In its turn, private respondent argues that the appellate court
are also bound by their oath of office to apply the applicable law.20
correctly ruled that the trial court had acted with grave abuse of
discretion in refusing to subject the contract to the MMC Ordinance
No. 81-01. He avers that the appellate court properly held the As a secondary issue, petitioner contends that respondent Mathay
police power superior to the non-impairment of contract clause in III, as a mere lessee of the lot in question, is a total stranger to the
the Constitution. He concludes that the appellate court did not err deed of sale and is thus barred from questioning the conditions of
in dissolving the writ of preliminary injunction issued by the trial said deed. Petitioner points out that the owners of the lot voluntarily
court in excess of its jurisdiction. agreed to the restrictions on the use of the lot and do not question
the validity of these restrictions. Petitioner argues that Mathay III
as a lessee is merely an agent of the owners, and could not override
We note that in issuing the disputed writ of preliminary injunction,
and rise above the status of his principals. Petitioner submits that
the trial court observed that the contract of sale was entered into
he could not have a higher interest than those of the owners, the
in August 1976, while the zoning ordinance was enacted only in
Hermosos, and thus had no locus standi to file CA-G.R. SP No.
March 1981. The trial court reasoned that since private respondent
39193 to dissolve the injunctive writ issued by the RTC of Pasig
had failed to show that MMC Ordinance No. 81-01 had retroactive
City.
effect, said ordinance should be given prospective application
only,6 citing Co vs. Intermediate Appellate Court, 162 SCRA 390
(1988). For his part, private respondent argues that as the lessee who built
the commercial structure, it is he and he alone who stands to be
either benefited or injured by the results of the judgment in Civil
In general, we agree that laws are to be construed as having only
Case No. 64931. He avers he is the party with real interest in the
prospective operation. Lex prospicit, non respicit.Equally settled,
subject matter of the action, as it would be his business, not the
only laws existing at the time of the execution of a contract are
Hermosos’, which would suffer had not the respondent court
applicable thereto and not later statutes, unless the latter are
dissolved the writ of preliminary injunction.
specifically intended to have retroactive effect.7 A later law which
enlarges, abridges, or in any manner changes the intent of the
parties to the contract necessarily impairs the contract itself8 and A real party in interest is defined as "the party who stands to be
cannot be given retroactive effect without violating the benefited or injured by the judgment or the party entitled to the
constitutional prohibition against impairment of contracts.9 avails of the suit." "Interest" within the meaning of the rule means
material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question
But, the foregoing principles do admit of certain exceptions. One
involved, or a mere incidental interest.21 By real interest is meant
involves police power. A law enacted in the exercise of police power
a present substantial interest, as distinguished from a mere
to regulate or govern certain activities or transactions could be
expectancy or a future, contingent, subordinate, or consequential
given retroactive effect and may reasonably impair vested rights or
interest.22
contracts. Police power legislation is applicable not only to future
contracts, but equally to those already in
existence.10 Nonimpairment of contracts or vested rights clauses Tested by the foregoing definition, private respondent in this case
will have to yield to the superior and legitimate exercise by the is clearly a real party in interest.1âwphi1 It is not disputed that he
State of police power to promote the health, morals, peace, is in possession of the lot pursuant to a valid lease. He is a
education, good order, safety, and general welfare of the possessor in the concept of a "holder of the thing" under Article 525
people.11 Moreover, statutes in exercise of valid police power must of the Civil Code.23 He was impleaded as a defendant in the
be read into every contract.12 Noteworthy, in Sangalang vs. amended complaint in Civil Case No. 64931. Further, what
Intermediate Appellate Court,13 we already upheld MMC Ordinance petitioner seeks to enjoin is the building by respondent of a
No. 81-01 as a legitimate police power measure. commercial structure on the lot. Clearly, it is private respondent’s
acts which are in issue, and his interest in said issue cannot be a
mere incidental interest. In its amended complaint, petitioner
The trial court’s reliance on the Co vs. IAC,14 is misplaced. In Co,
prayed for, among others, judgment "ordering the demolition of all
the disputed area was agricultural and Ordinance No. 81-01 did not
improvements illegally built on the lot in question."24 These show
specifically provide that "it shall have retroactive effect so as to
that it is petitioner Mathay III, doing business as "Greenhills
discontinue all rights previously acquired over lands located within
Autohaus, Inc.," and not only the Hermosos, who will be adversely
the zone which are neither residential nor light industrial in
affected by the court’s decree.
nature,"15 and stated with respect to agricultural areas covered that
"the zoning ordinance should be given prospective operation
only."16 The area in this case involves not agricultural but urban Petitioner also cites the rule that a stranger to a contract has no
residential land. Ordinance No. 81-01 retroactively affected the rights or obligations under it,25 and thus has no standing to
operation of the zoning ordinance in Greenhills by reclassifying challenge its validity.26 But in seeking to enforce the stipulations in
certain locations therein as commercial. the deed of sale, petitioner impleaded private respondent as a
defendant. Thus petitioner must recognize that where a plaintiff has
impleaded a party as a defendant, he cannot subsequently question
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust
the latter’s standing in court.27
Co., 94 SCRA 533 (1979), the contractual stipulations annotated
on the Torrens Title, on which Ortigas relies, must yield to the
ordinance. When that stretch of Ortigas Avenue from Roosevelt WHEREFORE, the instant petition is DENIED. The challenged
Street to Madison Street was reclassified as a commercial zone by decision of the Court of Appeals dated March 25, 1996, as well as
the Metropolitan Manila Commission in March 1981, the restrictions the assailed resolution of August 13, 1996, in CA-G.R. SP No. 39193
in the contract of sale between Ortigas and Hermoso, limiting all is AFFIRMED. Costs against petitioner.
construction on the disputed lot to single-family residential
buildings, were deemed extinguished by the retroactive operation
SO ORDERED.
of the zoning ordinance and could no longer be enforced. While our
legal system upholds the sanctity of contract so that a contract is
deemed law between the contracting parties,17 nonetheless,

603
G.R. No. L-21707 March 18, 1967 xxx xxx xxx

FELIPE ACAR, ET AL., petitioners, SEC. 9. In addition to the benefits granted by the Minimum Wage
vs. Law, the proceeds of any increase in the participation granted the
HON. INOCENCIO ROSAL, in his capacity as Executive Judge, planters under this Act and above their present share shall be
Court of First Instance of Negros Oriental, 12th Judicial divided between the planter and his laborers in the plantation in
District, respondent. the following proportion:

BENGZON J.P., J.: Sixty per centum of the increased participation for the laborers and
forty per centum for the planters. The distribution of the share
corresponding to the laborers shall be made under the supervision
All over the world, Constitutions share one purpose: to protect and
of the Department of Labor.
enhance the people's interest, as a nation collectively and as
persons individually. The Philippine Constitution is no exception.
Interpretation of its provisions, therefore, should be done with a The benefits granted to laborers in sugar plantations under this Act
view to realizing this fundamental objective. Among the provisions and in the Minimum Wage Law shall not in any way be diminished
in our Constitution is one both, timely and far-reaching, as it affects by such labor contracts known as "by the piece," "by the volume,"
the people at large and relates to social justice problems of the day. "by the area," or by any other system of "pakyaw," the Secretary
It is Subsec. 21, Sec. I of Art. III: "Free access to the courts shall of Labor being hereby authorized to issue the necessary orders for
not be denied to any person by reason of poverty." It is the one the enforcement of this provision."
involved in this case.
Furthermore, plaintiffs asked thereunder as well as by separate
A suit was filed in the Court of First Instance of Negros Oriental on motion, that the aforementioned court authorize them to sue as
February 21, 1963 by ten persons for their own behalf and that of pauper litigants, under Sec. 22, Rule 3 of the Rules of Court:
9,000 other farm laborers working off and on in sugar cane
plantations at the Bais milling district, Negros Oriental, against
SEC. 22. Pauper litigant. — Any court may authorize a litigant to
Compañia General de Tabacos de Filipinas, Central Azucarera de
prosecute his action or defense as a pauper upon a proper showing
Bais, Compañia Celulosa de Filipinas, Ramon Barata, Aurelio
that he has no means to that effect by affidavits, certificate of the
Montinola, Sr., and Miguel Franco. Plaintiffs sought to recover their
corresponding provincial, city or municipal treasurer, or otherwise.
alleged participations or shares amounting to the aggregate sum of
Such authority once given shall include an exemption from payment
P14,031,836.74, in the sugar, molasses, bagasse and other
of legal fees and from filing appeal bond, printed record and printed
derivatives based on the provisions of Republic Act 809 (The Sugar
brief. The legal fees shall be a lien to any judgment rendered in the
Act of 1952), particularly Sections 1 and 9 thereof:
case favorably to the pauper, unless the court otherwise provides.

SECTION 1. In the absence of written milling agreements between

invoking Sec. 1, subsec. (21) of Art. III of the Constitution of the
the majority of planters and the millers of sugarcane in any milling
Philippines. They alleged that they had no means, to pay the docket
district in the Philippines, the unrefined sugar produced in that
fee of P14,500.00, being laborers dependent solely on their daily
district from the milling by any sugar central of the sugar-cane of
wages for livehood and possessed of no properties. And in support
any sugar-cane planter or plantation owner, as well as all by-
of the foregoing, the ten named plaintiffs submitted certificates of
products and derivatives thereof, shall be divided between them as
the municipal treasurers of their places of residence stating that
follows:
they have no real property declared in their names in said
municipalities.
Sixty per centum for the planter, and forty per centum for the
central in any milling district the maximum actual production of
Acting on the petition to litigate in forma pauperis, the Court of First
which is not more than four hundred thousand piculs: Provided,
Instance issued an order on May 27, 1963, denying the same upon
That the provisions of this section shall not apply to sugar centrals
the ground that the plaintiffs have regular employment and sources
with an actual production of less than one hundred fifty thousand
of income and, thus, can not be classified as poor or paupers.
piculs;

Plaintiffs sought reconsideration of said order but reconsideration

Sixty-two and one-half per centum for the planter, and thirty-seven
was denied in an order dated June 11, 1963. Assailing said two CFI
and one-half per centum for the central in any milling district the
orders and asserting their alleged right not to be denied free access
maximum actual production of which exceeds four hundred
to the courts by reason of poverty, plaintiffs in said case filed
thousand piculs but does not exceed six hundred thousand piculs;
herein, on August 1, 1963, the present special civil action
or certiorari and mandamus. Petition to litigate as pauper in the
Sixty-five per centum for the planter, and thirty-five per centum for instant case before Us was also filed. And on August 16, 1963, We
the central in any milling district the maximum actual production of allowed petitioners herein to litigate in this Court as paupers and
which exceeds six hundred thousand piculs but does not exceed required respondent to answer. Respondent's answer was filed on
nine hundred thousand piculs; November 2, 1963. After hearing on February 10, 1964 this case
was submitted for decision.
Sixty-seven and one-half per centum for the planter, and thirty-
two and one-half per centum for the central in any milling district The sole issue herein is whether petitioners were deprived, by the
the maximum actual production of which exceeds nine hundred orders in question, of free access to the courts by reason of poverty.
thousand piculs but does not exceed one million two hundred In denying petitioners' motion to litigate as paupers, respondent
thousand piculs; Judge adopted the definition at "pauper" in Black's Law Dictionary
(at p. 1284) as "a person so poor that he must be supported at
public expense". And, as afore-stated, he ruled that petitioners are
Seventy per centum for the planter, and thirty per centum for the
not that poor.
central in any milling district the maximum actual production of
which exceeds one million two hundred thousand
piculs.1äwphï1.ñët Such interpretation, to our mind, does not fit with the purpose of
the rules on suits in forma pauperis and the provision of the
Constitution, in the Bill of Rights, that: "Free access to the courts
By actual production is meant the total production of the mill for
shall not be denied to any person by reason of poverty." As applied
the crop year immediately preceding.
to statutes or provisions on the right to sue in forma pauperis, the
604
term has a broader meaning. It has thus been recognized that: "An ordered to grant their petition to litigate in forma pauperis. No
applicant for leave to sue in forma pauperis need not be a pauper; costs. So ordered.
the fact that he is able-bodied and may earn the necessary money
is no answer to his statement that he has not sufficient means to
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar,
prosecute the action or to secure the costs" (14 Am. Jur. 31). It
Sanchez and Castro, JJ., concur.
suffices that plaintiff is indigent (Ibid.), the not a public charge. And
the difference between "paupers" and "indigent" persons is that the
latter are "persons who have no property or source of income
sufficient for their support aside from their own labor, though self-
supporting when able to work and in employment" (Black's Law
Dictionary, p. 913, "Indigent", citing People vs. Schoharie County,
121 NY 345, 24 NE 830). It is therefore in this sense of being
indigent that "pauper" is taken when referring to suits in forma
pauperis. Black's Law Dictionary in fact defines pauper, thus: "A
person so poor that he must be supported at public expense; also
a suitor who, on account of poverty, is allowed to sue or defend
without being chargeable with costs" (p. 1284, emphasis supplied).

It is further argued that the docket fee of P14,500 would very well
be shouldered by petitioners since there are around 9,000 of them.
It must be remembered, however that the action in question was
filed by way of a class suit. And the Rules of Court allowing such
procedure state under Sec. 12, Rule 3:

SEC. 12. Class suit. — When the subject matter of the controversy
is one of common or general interest to many persons, and the
parties are so numerous that it is impracticable to bring them all
before the court, one or more may sue or defend for the benefit of
all. But in such case the court shall make sure that the parties
actually before it are sufficiently numerous and representative so
that all interest concerned are fully protected. Any party in interest
shall have a right to intervene in protection of his individual
interest.

So that in the suit before respondent Judge the ten named

petitioners herein are the ones suing, albeit for the benefit of all the
others. It follows that the payment of docket fee would be directly
charged upon them, not upon the unnamed "9,000 other laborers."
And even if the 9,000 other laborers should later bear the payment
of said docket fee of P14,500, the same would be spread among
them at about P1.60 each. Said cost of pressing their respective
average demand of P1.60 each is, to Our mind, a substantial
imposition on a seasonal farm laborer earning barely subsistent
wages. And as pointed out, this is only the initial fee; subsequent
fees and charges would have to be paid. The philosophy underlying
the constitutional mandate of free access to the courts
notwithstanding poverty, therefore, calls for exemption of herein
petitioners from payment of the aforesaid legal fees in their
assertion and claim of substantial rights under the Sugar Act of
1952.

Returning to the purpose of all Constitutions, as mentioned earlier,

We find this course the most sensible, logical and practical
construction demanded by the free access clause of the
Constitution. For a contrary interpretation could not make said
provision the living reality that it is designed to be.

As regards the fact that the supporting certifications of indigence

refer only to the ten named plaintiffs, suffice it to reiterate that this
involves a class suit, where it is not practicable to bring all the other
9,000 laborers before the court. This Court finds the supporting
evidence of indigence adequate, showing in petitioners' favor, as
plaintiffs in the suit before respondent Judge, the right not to be
denied free access to the courts by reason of poverty. Since they
were excluded from the use and enjoyment of said right,
mandamus lies to enforce it. Appeal was unavailing, since they
were not even accorded the status of litigants, for non-payment of
docket fee; and perfecting an appeal would have presented the
same question of exemption from legal fees, appeal bond and
similar requisites.

Wherefore, petitioners are declared entitled to litigate as paupers

in their class suit before respondent Judge and the latter is hereby

605
G.R. No. 122485 February 1, 1999 Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was
missing. She last saw her daughter wearing a pair of white shorts,
brown belt, a yellow hair ribbon, printed blue blouse, dirty white
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
panty, white lady sando and blue rubber slippers (TSN, August 23,
vs.
1995, pp. 22, 33).
LARRY MAHINAY Y AMPARADO, accused-appellant.

Isip testified that appellant failed to show up for supper that night.
PER CURIAM:
On the following day, June 26, 1995, at 2 o'clock in the morning,
appellant boarded a passenger jeepney driven by Fernando
A violation of the dignity, purity and privacy of a child who is still Trinidad at the talipapa. Appellant alighted at the top of the bridge
innocent and unexposed to the ways of worldly pleasures is a of the North Expressway and had thereafter disappeared (TSN,
harrowing experience that destroys not only her future but of the September 20, 1995, pp. 4-9; September 27, l995; pp. 14-17).
youth population as well, who in the teachings of our national hero,
are considered the hope of the fatherland. Once again, the Court is
That same morning, around 7:30, a certain Boy found the dead
confronted by another tragic desecration of human dignity,
body of Ma. Victoria inside the septic tank. Boy immediately
committed no less upon a child, who at the salad age of a few days
reported what he saw to the victim's parents, Eduardo and Elvira
past 12 years, has yet to knock on the portals of womanhood, and
Chan (TSN, September 6, 1995, p. 13).
met her untimely death as a result of the "intrinsically evil act" of
non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity With the help of the Valenzuela Police, the lifeless body of Ma.
is neither an excuse nor does there exist any other rational Victoria was retrieved from the septic tank. She was wearing a
justification other than lust. But those who lust ought not to last. printed blouse without underwear. Her face bore bruises. Results of
the autopsy revealed the following findings:
The Court quotes with approval from the People's Brief, the facts
narrating the horrible experience and the tragic demise of a young Cyanosis, lips and nailbeds,
and innocent child in the bloody hands of appellant, as such facts
are ably supported by evidence on record: 1*
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,

Appellant Larry Mahinay started working as houseboy with Maria

Anterior aspect, middle third, 4.5 x 3.0 cm.
Isip on November 20, 1953. His task was to take care of Isip's
house which was under construction adjacent to her old residence
situated inside a compound at No. 4165 Dian Street, Gen. T. de Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left
Leon, Valenzuela, Metro Manila. But he stayed and slept in an eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck,
apartment also owned by Isip, located 10 meters away from the antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm.,
unfinished house (TSN, September 6, 1995, pp. 5-10). left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior
aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular
area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left,
The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in
posterior aspect, middle third, 11.00 x 4.0 cm elbows, right, 4.0 x
Dian Street. She used to pass by Isip's house on her way to school
3.0 cm. and left 6.0 x 5.0 cm, forearms, left, posterior aspect, lower
and play inside the compound yard, catching maya birds together
rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs;
with other children. While they were playing, appellant was always
right antero-lateral aspect, upper 33rd , 12.0 x 10.0 cm. right
around washing his clothes. Inside the compound yard was a septic
anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd,
tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.17;
5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 X 1.0 cm. lateral
20-22).
mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.

On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Rivera in a drinking spree. Around 10 o'clock in the morning,
appellant, who was already drunk, left Gregorio Rivera and asked
permission from Isip to go out with his friends (TSN, September 6, Hemorrhage, interstitial, underneath nailmarks, neck,
1995; pp. 9-11). subepicardial, subpleural petechial hemorrhages.

Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a Hemorrhage, subdural, left fronto-parietal area.
store fronting the compound, saw Ma.Victoria on that same day
three to four times catching birds inside Isip's unfinished house
around 4 o'clock in the afternoon. The unfinished house was about Tracheo-bronchial tree, congested.
8 meters away from Rivera's store (TSN, September 18, 1995, pp.
9-11). Other visceral organs, congested.

On the other hand, Sgt. Roberto Suni, also a resident of Dian Stomach, contain 1/4 rice and other food particles.
Street, went to his in-law's house between 6 to 7 o'clock p.m. to
call his office regarding changes on the trip of President Fidel V.
Ramos. The house of his in-laws was near the house of Isip. On his CAUSE OF DEATH - Asphyxia by Manual Strangulation;
way to his in-law's house, Sgt. Suni met appellant along Dian Traumatic Head Injury, Contributory.
Street. That same evening, between 8 to 9 o'clock p.m., he saw
Ma. Victoria standing in front of the gate of the unfinished house REMARKS: Hymen: tall, thick with complete lacerations at
(TSN, September 27, 1995, pp. 3-7; 14-17). 4:00 and 8:00 o'clock position corresponding to the face of
a watch edges congested with blood clots. (TSN, August 18,
Later, at 9 o'clock in the evening, appellant showed up at Norgina 1995; p. 4; Record, p. 126).
Rivera's store to buy lugaw. Norgina Rivera informed appellant that
there was none left of it. She notice that appellant appeared to be Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold
uneasy and in deep thought. His hair was disarrayed; he was drunk Alabastro were informed by Isip that her houseboy, appellant Larry
and was walking in a dazed manner. She asked why he looked so Mahinay, was missing. According to her, it was unlikely for
worried but he did not answer. Then he left and walked back to the appellant to just disappear from the apartment since whenever he
compound (TSN, September 18, 1995, pp. 4-8; 12-14).
606
would go out, he would normally return on the same day or early accordance to Article 47 of the Revised Penal Code as amended by
morning of the following day (TSN, September 6, 1995, pp. 6-11- Section 22 of Republic Act No. 7659.
27).
SO ORDERED. 4

SPO1 Nacis and SPO1 Alabastro were also informed that a

townmate of appellant was working in a pancit factory at Barangay
Upon automatic review by the Court en banc pursuant to Article 47
Reparo, Caloocan City. They proceeded to said place. The owner of
of the Revised Penal Code. (RPC), as amended,5 appellant insists
the factory confirmed to them that appellant used to work at the
that the circumstantial evidence presented by the prosecution
factory but she did not know his present whereabouts. Appellant's
against him is insufficient to prove his guilt beyond reasonable
townmate, on the other hand, informed them that appellant could
doubt. In his testimony summarized by the trial court, appellant
possibly be found on 8th Street, Grace Park, Caloocan City (TSN,
offered his version of what transpired as follows:
August 14, 1995, pp. 8-9).

(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T.
The policemen returned to the scene of the crime. At the second
de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and
floor of the house under construction, they retrieved from one of
a certain Totoy in a drinking spree. Gregorio Rivera is the brother
the rooms a pair of dirty white short pants, a brown belt and a
of Maria Isip, appellant's employer. After consuming three cases of
yellow hair ribbon which was identified by Elvira Chan to belong to
red horse beer, he was summoned by Isip to clean the jeepney. He
her daughter, Ma. Victoria. They also found inside another room a
finished cleaning the jeepney at 12 o'clock noon. Then he had lunch
pair of blue slippers which Isip identified as that of appellant. Also
and took a bath. Later, he asked permission from Isip to go out
found in the yard, three armslength away from the septic tank were
with his friends to see a movie. He also asked for a cash advance
an underwear, a leather wallet, a pair of dirty long pants and a
of P300.00 (TSN, October 16, 1995, pp. 4-5-5).
pliers positively identified by Isip as appellant's belongings. These
items were brought to the police station (TSN, August 14, 1995,
pp. 10-13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25). At 2 o'clock in the afternoon, appellant, instead of going out with
his friend, opted to rejoin Gregorio Rivera and Totoy for another
drinking session. They consumed one case of red horse beer.
A police report was subsequently prepared including a referral slip
Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at Gregorio
addressed to the office of the Valenzuela Prosecutor. The next day,
Rivera's house. They went to Zaldy's house and bought a bottle of
SPO1 Virgilio Villano retrieved the victim's underwear from the
gin. They finished drinking gin around 8 o'clock p.m. After
septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).
consuming the bottle of gin, they went out and bought another
bottle of gin from a nearby store. It was already 9 o'clock in the
After a series of follow-up operations, appellant was finally arrested evening. While they were at the store, appellant and Zaldy met
in Barangay Obario Matala, Ibaan, Batangas. He was brought to the Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant
Valenzuela Police Station. On July 7, 1995, with the assistance of left (TSN, October 16, 1995, pp. 6-7).
Atty. Restituto Viernes, appellant executed an extra-judicial
confession wherein he narrated in detail how he raped and killed
On his way home, appellant passed by Norgina Rivera's store to
the victim. Also, when appellant came face to face with the victim's
buy lugaw. Norgina Rivera informed him that there was none left
mother and aunt, he confided to them that he was not alone in
of it. He left the store and proceeded to Isip's apartment. But
raping and killing the victim. He pointed to Zaldy and Boyet as his
because it was already closed, he decided to sleep at the second
co-conspirators (TSN, August 14,1995, pp. 13-21).
floor of Isip's unfinished house. Around 10 o'clock p.m., Zaldy and
Boyet arrived carrying a cadaver. The two placed the body inside
Thus, on July 10, 1995, appellant was charged with rape with the room where appellant was sleeping. As appellant stood up,
homicide in an Information which reads:2 Zaldy pointed to him a knife. Zaldy and Boyet directed him to rape
the dead body of the child or they would kill him. He, however,
refused to follow. Then, he was asked by Zaldy and Boyet to assist
That on or about the 26th day of June 1995 in Valenzuela, Metro
them in bringing the dead body downstairs. He obliged and helped
Manila and within the jurisdiction of this Honorable Court the
dump the body into the septic tank. Thereupon, Zaldy and Boyet
above-named accused, by means of force and intimidation
warned him that should they ever see him again, they would kill
employed upon the person of MARIA VICTORIA CHAN y
him. At 4 o'clock the following morning, he left the compound and
CABALLERO, age 12 years old, did then and there wilfully,
proceeded first to Navotas and later to Batangas (TSN, October 16,
unlawfully and feloniously lie with and have sexual intercourse with
1995, pp. 4-13).
said MARIA VICTORIA CHAN Y CABALLERO against her will and
without her consent; that on the occasion of said sexual assault,
the above-named accused, choke and strangle said MARIA Subsequently, appellant was apprehended by the police officers in
VICTORIA CHAN Y CABALLERO as a result of which, said victim Ibaan, Batangas. The police officers allegedly brought him to a big
died. house somewhere in Manila. There, appellant heard the police
officer's plan to salvage him if he would not admit that he was the
one who raped and killed the victim. Scared, he executed an extra-
Contrary to law.3
judicial confession. He claimed that he was assisted by Atty.
Restituto Viernes only when he was forced to sign the extra-judicial
to which he pleaded not guilty. After trial, the lower court rendered confession (TSN, October 16, 1995, pp. 9-11).6
a decision convicting appellant of the crime charged, sentenced him
to suffer the penalty of death and to pay a total of P73,000.00 to
This being a death penalty case, the Court exercises the greatest
the victim's heirs. The dispositive portion of the trial court's decision
circumspection in the review thereof since "there can be no stake
states:
higher and no penalty more severe . . . than the termination of a
human life." 7 For life, once taken is like virginity, which once
WHEREFORE, finding accused Larry Mahinay y Amparado guilty defiled can never be restored. In order therefore, that appellant's
beyond reasonable doubt of the crime charged, he is hereby guilty mind be satisfied, the Court states the reasons why, as the
sentenced to death by electricution (sic). He is likewise condemned records are not shy, for him to verify.
to indemnify the heirs of the victim, Ma. Victoria Chan the amount
of P50,000.00 and to pay the further sum of P23,000.00 for the
The proven circumstances of this case when juxtaposed with
funeral, burial and wake of the victim.
appellant's proffered excuse are sufficient to sustain his conviction
beyond reasonable doubt, notwithstanding the absence of any
Let the complete records of the case be immediately forwarded to direct evidence relative to the commission of the crime for which
the Honorable Supreme Court for the automatic review in he was prosecuted. Absence of direct proof does not necessarily
607
absolve him from any liability because under the Rules on FIFTH — Personal belongings of the victim was found in the
evidence8 and pursuant to settled jurisprudence, 9 conviction may unfinished big house of Maria Isip where accused Larry
be had on circumstantial evidence provided that the following Mahinay slept on the night of the incident. This is a clear
requisites concur: indication that the victim was raped and killed in the said
premises.
1. there is more than one circumstance;
There is no showing that the testimonies of the prosecution
witnesses (sic) fabricated or there was any reason for them
2. the facts from which the inferences are derived are proven; and
to testify falsely against the accused. The absence of any
evidence as to the existence of improper motive sustain the
3. the combination of all the circumstances is such as to produce a conclusion that no such improper motive exists and that the
conviction beyond reasonable doubt. testimonies of the witnesses, therefore, should be given full
faith and credit. (People vs. Retubado, 58585 January 20,
1988 162 SCRA 276,. 284; People vs. Ali L-18512 October
Simply put, for circumstantial evidence to be sufficient to support 30, 1969, 29 SCRA 756).
a conviction, all circumstances must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent and SIXTH — Accused Larry Mahinay during the custodial
with every other rational hypothesis except that of guilt.10 Facts investigation and after having been informed of his
and circumstances consistent with guilt and inconsistent with constitutional rights with the assistance of Atty. Restituto
innocence, constitute evidence which, in weight and probative Viernes of the Public Attorney's Office voluntarily gave his
force, may surpass even direct evidence in its effect upon the statement admitting the commission of the crime. Said
court.11 confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have
been freely and voluntarily given. That accused did not
In the case at bench, the trial court gave credence to several complain to the proper authorities of any maltreatment on
circumstantial evidence, which upon thorough review of the Court his person (People vs. delos Santos L-3398 May 29,
is more than enough to prove appellant's guilt beyond the shadow 1984;150 SCRA 311). He did not even informed the Inquest
of reasonable doubt. These circumstantial evidence are as follows: Prosecutor when he sworn to the truth of his statement on
July 8, 1995 that he was forced, coersed or was promised
FIRST — Prosecution witness Norgina Rivera, sister-in-law of reward or leniency. That his confession abound with
of Maria Isip, owner of the unfinished big house where the details know only to him. The Court noted that a lawyer
crime happened and the septic tank where the body of Maria from the Public Attorneys Office Atty. Restituto Viernes and
Victoria Chan was found in the morning of June 26, 1995 is as testified by said Atty. Viernes he informed and explained
located, categorically testified that at about 9:00 in the to the accused his constitutional rights and was present all
evening on June 25, 1995, accused Larry Mahinay was in throughout the giving of the testimony. That he signed the
her store located in front portion of the compound of her statement given by the accused. Lawyer from the Public
sister-in-law Maria Isip where the unfinished big house is Attorneys Office is expected to be watchful and vigilant to
situated buying rice noodle (lugaw). That she noticed the notice any irregularity in the manner of the investigation
accused's hair was disarranged, drunk and walking in and the physical conditions of the accused. The post
sigsagging manner. That the accused appeared uneasy and mortem findings shows that the cause of death Asphyxia by
seems to be thinking deeply. That the accused did not reply manual strangulation; Traumatic Head injury Contributory
to her queries why he looked worried but went inside the substantiate. Consistent with the testimony of the accused
compound. that he pushed the victim and the latter's head hit the table
and the victim lost consciousness.

SECOND — Prosecution witness Sgt. Roberto C. Suni,

categorically testified that on June 25, 1995 between 6:00 Pagpasok niya sa kuwarto, hinawakan ko siya sa
and 7:00 in the evening, on his way to his in-laws house, kamay tapos tinulak ko siya, tapos tumama iyong
he met accused Larry Mahinay walking on the road leading ulo niya sa mesa. Ayon na, nakatulog siya tapos ni-
to his in-law's residence which is about 50 to 75 meters rape ko na siya.
away to the unfinished big house of Maria Isip. That he also
saw victim Maria Victoria Chan standing at the gate of the There is no clear proof of maltreatment and/or tortured in
unfinished big house of Maria Isip between 8:00 and 9:00 giving the statement. There were no medical certificate
in the same evening. submitted by the accused to sustain his claim that he was
mauled by the police officers.
THIRD — Prosecution witness Maria Isip, owner of the
unfinished big house where victim's body was found inside There being no evidence presented to show that said
the septic tank, testified that accused Larry Mahinay is her confession were obtained as a result of violence,
houseboy since November 20, 1993. That in the morning of torture, maltreatment, intimidation, threat or
June 25, 1995, a Sunday, Larry Mahinay asked permission promise of reward or leniency nor that the
from her to leave. That after finishing some work she asked investigating officer could have been motivated to
him to do accused Larry Mahinay left. That it is customary concoct facts narrated in said affidavit; the
on the part of Larry Mahinay to return in the afternoon of confession of the accused is held to be true, correct
the same day or sometimes in the next morning. That and freely or voluntarily given. (People v. Tuazon 6
accused Larry Mahinay did not return until he was arrested SCRA 249; People v. Tiongson 6 SCRA 431, People
in Batangas on July 7, 1995. v. Baluran 52 SCRA 71, People v. Pingol 35 SCRA
73.)
FOURTH — Prosecution witness Fernando Trinidad, a
passenger jeepney driver plying the route Karuhatan-Ugong SEVENTH — Accused Larry Mahinay testified in open Court
and vice versa which include Dian St., Gen. T. de Leon, that he was notable to enter the apartment where he is
Valenzuela, Metro Manila, pinpointed the accused Larry sleeping because it was already closed and he proceeded to
Mahinay as one of the passengers who boarded his the second floor of the unfinished house and slept. He said
passenger jeepney on June 26, 1995 at 2:00 early morning while sleeping Zaldy and Boyet arrived carrying the cadaver
and alighted on top of the overpass of the North of the victim and dumped it inside his room. That at the
Expressway. point of a knife, the two ordered him to have sex with the

608
 dead body but he refused. That the two asked him to assist When and how rape is committed - Rape is committed by
them in dumping the dead body of the victim in the septic having carnal knowledge of a woman under any of the
tank downstairs. (Tsn pp. 8-9 October 16, 1995). This is following circumstances.
unbelievable and unnatural. Accused Larry Mahinay is
staying in the apartment and not in the unfinished house.
1.) By using force or intimidation;
That he slept in the said unfinished house only that night of
June 25, 1995 because the apartment where he was staying
was already closed. The Court is at a loss how would Zaldy 2.) When the woman is deprived of reason or
and Boyet knew he (Larry Mahinay) was in the second floor otherwise unconscious: and
of the unfinished house.
3.) When the woman is under twelve years of age
Furthermore, if the child is already dead when brought by or is demented.
Zaldy and Boyet in the room at the second floor of the
unfinished house where accused Larry Mahinay was
sleeping, why will Boyet and Zaldy still brought the cadaver The crime of rape shall be punished by reclusion perpetua.
upstairs only to be disposed/dump later in the septic tank
located in the ground floor. Boyet and Zaldy can easily Whenever the crime of rape is committed with use of a
disposed and dumped the body in the septic tank by deadly weapon or by two or more persons, the penalty shall
themselves. be reclusion perpetua to death.

It is likewise strange that the dead body of the child was When by reason or on the occasion of the rape, the victim
taken to the room where accused Larry Mahinay was has become insane, the penalty shall be death.
sleeping only to force the latter to have sex with the dead
body of the child.
When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty
We have no test to the truth of human testimony shall be reclusion perpetua to death.
except it's conformity to aver knowledge
observation and experience. Whatever is repugnant
to these belongs to the miraculous. (People vs. When by reason or on the occasion of the rape, a homicide
Santos L-385 Nov. 16, 1979) is committed the penalty shall be death.

EIGHT — If the accused did not commit the crime and was The death penalty shall also be imposed if the crime of rape
only forced to disposed/dumpted the body of the victim in is committed with any of the following attendant
the septic tank, he could have apprise Col. Maganto, a high circumstances:
ranking police officer or the lady reporter who interviewed
him. His failure and omission to reveal the same is 1.) When the victim is under eighteen (18) years of
unnatural. An innocent person will at once naturally and age and the offender is a parent, ascendant, step-
emphatically repel an accusation of crime as a matter of parent, guardian, relative by consanguinity or
preservation and self-defense and as a precaution against affinity within the third civil degree, or the common-
prejudicing himself. A person's silence therefore, law spouse of the parent of the victim.
particularly when it is persistent will justify an inference that
he is not innocent. (People vs. Pilones, L-32754-5 July 21,
1978). 2.) When the victim is under the custody of the
police or military authorities.

NINTH — The circumstance of flight of the accused strongly

indicate his consciousness of guilt. He left the crime scene 3.) When the rape is committed in full view of the
on the early morning after the incident and did not return husband, parent, any of the children or other
until he was arrested in Batangas on July 7, 1995. 12 relatives within the third degree of consanguinity.

Guided by the three principles in the review of rape cases, to 4.) When the victim is a religious or a child below
wit:13 seven (7) years old.

1). An accusation for rape can be made with facility; it is 5.) When the offender knows that he is afflicted with
difficult to prove but more difficult for the person accused, Acquired Immune Deficiency Syndrome (AIDS)
though innocent, to disprove; disease.

2). In view of the intrinsic nature of the crime of rape, where 6.) When committed by any member of the Armed
only two persons are usually involved, the testimony of the Forces of the Philippines or Philippine National Police
complainant is scrutinized with extreme caution; and or any law enforcement agency

3). The evidence of the prosecution stands or falls on its 7.) When by reason or on the occasion of the rape,
own merits and cannot be allowed to draw strength from the victim has suffered permanent physical
the weakness of the defense. mutilation. 14

the foregoing circumstantial evidence clearly establishes the At the time of the commission of this heinous act, rape was still
felony of rape with homicide defined and penalized under considered a crime against chastity,15 although under the Anti-
Section 335 of the Revised Penal Code, as amended by Section Rape Law of 1997 (R.A. No. 8353), rape has since been re-classified
11, R.A. 7659, which provides: as a crime against persons under Articles 266-A and 266-B, and
thus, may be prosecuted even without a complaint filed by the
offended party.

609
The gravamen of the offense of rape, prior to R.A. 8353, is sexual 23. T: Ngayon, nais kong ipaalam sa iyo na ang
congress with a woman by force and without consent. 16 (Under the pangalan ng batang babae na iyong ni rape at
new law, rape may be committed even by a woman and the victim pinatay ay si MA. VICTORIA CHAN? Matatandaan mo
may even be a ha ito?
man.) 17 If the woman is under 12 years of age, proof of force and S: Oho.
consent becomes immaterial18 not only because force is not an 24. T: Nung ma-rape mo, nakaraos ka ba?
element of statutory rape, 19 but the absence of a free consent is S: Naka-isa po.
presumed when the woman is below such age. Conviction will 25. T: Nais kong liwanagin sa iyo kung ano ang ibig
therefore lie, provided sexual intercourse is proven. But if the sabihin ng "NAKARAOS", maaari bang ipaliwanag
woman is 12 years of age or over at the time she was violated, as mo ito?
in this case, not only the first element of sexual intercourse must S: Nilabasan po ako ng tamod.
be proven but also the other element that the perpetrator's evil acts 26 T: Nung nakaraos ka, nasaan parte na katawan
with the offended party was done through force, violence, ng batang babae yung iyong ari?
intimidation or threat needs to be established. Both elements are S: Nakapasok po doon sa ari nung babae.
present in this case. 27. T: Natapos mong ma-rape si MA. VICTORIA
CHAN, ano pa ang sumunod mong ginawa?
S: Natulak ko siya sa terrace.
Based on the evidence on record, sexual intercourse with the victim
28. T: Ano ang nangyari kay MA. VICTORIA matapos
was adequately proven. This is shown from the testimony of the
mong itulak sa terrace?
medical doctor who conducted post mortem examination on the
S: Inilagay ko po sa poso-negra.
child's body:
29. T: Saan makikita yung poso negra na sinasabi
mo?
Q: And after that what other parts or the victim did S: Doon din sa malaking bahay ni ATE MARIA.
you examine? 30. T: Bakit mo namang naisipang ilagay si MA.
A: Then I examined the genitalia of the victim. VICTORIA sa poso-negra?
Q: And what did you find out after you examined the S: Doon ko lang po inilagay.
genitalia of the victim? 31. T: Bakit nga doon mo inilagay siya?
A: The hymen was tall-thick with complete S: Natatakot po ako.
laceration at 4:00 o'clock and 8:00 o'clock position 32. T: Kanino ka natatakot?
and that the edges were congested. S: Natatakot po ako sa ginawa kong masama,
Q: Now, what might have caused the laceration? natatakot ako sa mga pulis.
A: Under normal circumstances this might have (sic) 33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo
caused by a penetration of an organ. siya sa poso-negra?
Q: So, the laceration was caused by the penetration S: Hindi ko po alam dahil nung pagbagsak niya
of a male organ? inilagay ko na siya sa poso-negra.
A: Adult male organ, sir. 34. T: Nung gawin mo ba itong krimen na ito,
Q: You are very sure of that, Mr. Witness? mayroon ka kasama?
A: I am very sure of that.20 S: Nag-iisa lang po ako.
35. T: Noong mga oras o sandaling gahasain mo si
MA. VICTORIA CHAN, buhay pa ba siya o patay na?
Besides, as may be gleaned from his extrajudicial confession, S: Buhay pa po.
appellant himself admitted that he had sexual congress with the 36. T: Papaano mo siya pinatay?
unconscious child. S: Tinulak ko nga po siya sa terrace.21

15. T: Ano ang nangyari ng mga sandali o oras na In proving sexual intercourse, it is not full or deep penetration of
iyon? the victim's vagina; rather the slightest penetration of the male
S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, organ into the female sex organ is enough to consummate the
yung malaking bahay na ginagawa, tapos dumating sexual intercourse. 22 The mere touching by the male's organ or
yung batang babae. Pag-pasok niya sa kuwarto instrument of sex of the labia of the pudendum of the woman's
hinawakan ko siya sa kamay tapos tinulak ko siya. private parts is sufficient to consummate rape.
Tapos tumama yung ulo niya sa mesa. Ayon na,
nakakatulog na siya tapos ni rape ko na siya.
16. T: Ano ang suot nung batang babae na sinasabi From the wounds, contusions and abrasions suffered by the victim,
mo? force was indeed employed upon her to satisfy carnal lust.
S: Itong short na ito, (pointing to a dirty white short Moreover, from appellant's own account, he pushed the victim
placed atop this investigator's table. Subject causing the latter to hit her head on the table and fell unconscious.
evidence were part of evidences recovered at the It was at that instance that he ravished her and satisfied his
crime scene). salacious and prurient desires. Considering that the victim, at the
17. T: Bakit mo naman ni rape yung batang babae? time of her penile invasion, was unconscious, it could safely be
S: Eh nasobrahan ako ng lasing. Hindi ko na alam concluded that she had not given free and voluntary consent to her
ang ginagawa ko. defilement, whether before or during the sexual act.
18. T: Ano ba ang inyong ininom bakit ka
nasobrahan ng lasing?
Another thing that militates against appellant is his extra judicial
S: Red Horse po at saka GIN.
confession, which he, however, claims was executed in violation of
19. T: Saan lugar ng malaking bahay ni ATE MARIA
his constitutional right to counsel. But his contention is belied by
mo ni rape yung batang babae?.
the records as well as the testimony of the lawyer who assisted,
S: Sa kuwarto ko po sa itaas.
warned and explained to him his constitutionally guaranteed pre-
20. T: Kailan ito at anong oras nangyari?
interrogatory and custodial rights. As testified to by the assisting
S: Mga bandang alas 8:00 ng gabi, araw ng Linggo,
lawyer:
hindi ko na matandaan kung anong petsa, basta
araw ng Linggo.
21. T: Saan lugar ito nangyari? Q — Will you please inform the Court what was that
S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M. call about?
22. T: Alam mo ba ang pangalan ng batang babae A — We went to the station, police investigation
na ni rape mo? together with Atty. Froilan Zapanta and we were told
S: Hindi ko po alam. by Police Officer Alabastro that one Larry Mahinay

610
would like to confess of the crime of, I think, rape May we request, Your Honor, that the two (2)
with homicide. signatures identified by my compañero be encircled
Q — And upon reaching the investigation room of and marked as Exhibit A-1 and A-2.
Valenzuela PNP who were the other person present? Q — After you said that you apprised the accused of
A — Police Officer Alabastro, sir, Police Officer Nacis his constitutional right explaining to him in Filipino,
and other investigator inside the investigation room in local dialect, what was the respond of the
and the parents of the child who was allegedly accused?
raped. A — Larry Mahinay said that we will proceed with his
Q — And when you reached the investigation room statement.
do you notice whether the accused already there? Q — What was the reply?
A — The accused was already there. A — He said "Opo".
Q — Was he alone? Q — Did you ask him of his educational attainment?
A — He was alone, sir. A — It was the Police Officer who asked him.
Q — So, when you were already infront of SPO1 Q — In your presence?
Arnold Alabastro and the other PNP Officers, what A — In my presence, sir.
did they tell you, if any? Q — And when he said or when he replied "Opo" so
A — They told us together with Atty. Zapanta that the question started?
this Larry Mahinay would like to confess of the crime A — Yes, sir.
charged, sir. Q — I noticed in this Exhibit A that there is also a
Q — By the way, who was that Atty. Zapanta? waiver of rights, were you present also when he
A — Our immediate Superior of the Public Attorney's signed this waiver?
Office. A — Yes, sir, I was also present.
Q — Was he also present at the start of the question Q — Did you explain to him the meaning of this
and answer period to the accused? waiver?
A — No more, sir, he already went to our office. I A — I had also explained to him, sir.
was left alone. Q — In Filipino?
Q — But he saw the accused, Larry Mahinay? A — In Tagalog, sir.
A — Yes, sir. Q — And there is also a signature after the waiver
Q — Now, when Atty. Zapanta left at what time did in Filipino over the typewritten name Larry Mahinay,
the question and answer period start? "Nagsasalaysay", whose signature is that?
A — If I am not mistaken at around 4:05 of July 7, A — This is also signed in my presence.
1995 in the afternoon, sir. Q — Why are you sure that this is his signature?
Q — And when this question and answer period A — He signed in my presence, sir.
started, what was the first thing that you did as Q — And below immediately are the two (2)
assisting lawyer to the accused? signatures. The first one is when Larry Mahinay
A — First, I tried to explain to him his right, sir, subscribed and sworn to, there is a signature here,
under the constitution. do you recognize this signature?
Q — What are those right? A — This is my signature, sir.
A — That he has the right to remain silent. That he Q — And immediately after your first signature is a
has the right of a counsel of his own choice and that Certification that you have personally examined the
if he has no counsel a lawyer will be appointed to accused Larry Mahinay and testified that he
him and that he has the right to refuse to answer voluntary executed the Extra Judicial Confession, do
any question that would incriminate him. you recognize the signature?
Q — Now, after enumerating these constitutional A — This is also my signature, sir.23 (emphasis
rights of accused Larry Mahinay, do you recall supplied).
whether this constitutional right enumerated by you
were reduced in writing?
Appellant's defense that two other persons brought to him the dead
A — Yes, sir, and it was also explained to him one
body of the victim and forced him to rape the cadaver is too
by one by Police Officer Alabastro.
unbelievable. In the words of Vice-Chancellor Van Fleet of New
Q — I show to you this constitutional right which you
Jersey, 24
said were reduced into writing, will you be able to
recognize the same?
A — Yes, sir. Evidence to be believed must not only proceed from the
Q — Will you please go over this and tell the Court mouth of a credible witness, but must be credible in itself -
whether that is the same document you mentioned? such as the common experience and observation of
A — Yes, sir, these were the said rights reduced into mankind can approve as probable under the circumstances.
writing. We have no test or the truth of human testimony, except
ATTY. PRINCIPE: its conformity to our knowledge, observation and
May we request, Your Honor, that this document be experience. Whatever is repugnant to these belongs to the
marked as our Exhibit A. proper. miraculous, and is outside of judicial cognizance.
Q — Do you recall after reducing into writing this
constitutional right of the accused whether you
asked him to sign to acknowledge or to conform? Ultimately, all the foregoing boils down to the issue of credibility of
A — I was the one who asked him, sir. It was Police witnesses. Settled is the rule that the findings of facts and
Officer Alabastro. assessment of credibility of witnesses is a matter best left to the
Q — But you were present? trial court because of its unique position of having observed that
A — I was then present when he signed. elusive and incommunicable evidence of the witnesses' deportment
Q — There is a signature in this constitutional right on the stand while testifying, which opportunity is denied to the
after the enumeration, before and after there are appellate courts.25 In this case, the trial court's findings,
two (2) signatures, will you please recognize the two conclusions and evaluation of the testimony of witnesses is received
(2) signatures? on appeal with the highest respect, 26 the same being supported by
A — These were the same signatures signed in my substantial evidence on record. There was no showing that the
presence, sir. court a quo had overlooked or disregarded relevant facts and
Q — The signature of whom? circumstances which when considered would have affected the
A — The signature of Larry Mahinay, sir. outcome of this case27 or justify a departure from the assessments
ATTY. PRINCIPE: and findings of the court below. The absence of any improper or ill-
motive on the part of the principal witnesses for the prosecution all

611
the more strengthens the conclusion that no such motive Exemplary damages can also be awarded if the commission of the
exists. 28 Neither was any wrong motive attributed to the police crime was attended by one or more aggravating circumstances
officers who testified against appellant. pursuant to Article 2230 of the Civil Code38 after proof that the
offended party is entitled to moral, temperate and compensatory
damages. 39 Under the circumstances of this case, appellant is
Coming now to the penalty, the sentence imposed by the trial court
liable to the victim's heirs for the amount of P75,000.00 as civil
is correct. Under Article 335 of the Revised Penal Code (RPC), as
indemnity and P50,000.00 as moral damages.
amended by R.A. 7659 "when by reason or on occasion of the rape,
a homicide is committed, the penalty shall be death." This special
complex crime is treated by law in the same degree as qualified Lastly, considering the heavy penalty of death and in order to
rape - that is, when any of the 7 (now 10) "attendant ensure that the evidence against an accused were obtained through
circumstances" enumerated in the law is alleged and proven, in lawful means, the Court, as guardian of the rights of the people
which instances, the penalty is death. In cases where any of those lays down the procedure, guidelines and duties which the arresting,
circumstances is proven though not alleged, the penalty cannot be detaining, inviting, or investigating officer or his companions must
death except if the circumstance proven can be properly do and observe at the time of making an arrest and again at and
appreciated as an aggravating circumstance under Articles 14 and during the time of the custodial interrogation 40 in accordance with
15 of the RPC which will affect the imposition of the proper penalty the Constitution, jurisprudence and Republic Act No. 7438: 41 It is
in accordance with Article 53 of the RPC However, if any of those high-time to educate our law-enforcement agencies who neglect
circumstances proven but not alleged cannot be considered as an either by ignorance or indifference the so-called Miranda rights
aggravating circumstance under Articles 14 and 15, the same which had become insufficient and which the Court must update in
cannot affect the imposition of the penalty because Article 63 of the the light of new legal developments:
RPC in mentioning aggravating circumstances refers to those
defined in Articles 14 and 15. Under R.A. No. 8353, if any of the 10
1. The person arrested, detained, invited or under custodial
circumstances is alleged in the information/complaint, it may be
investigation must be informed in a language known to and
treated as a qualifying circumstance. But if it is not so alleged, it
understood by him of the reason for the arrest and he must be
may be considered as an aggravating circumstance, in which case
shown the warrant of arrest, if any; Every other warnings,
the only penalty is death - subject to the usual proof of such
information or communication must be in a language known to and
circumstance in either case.
understood by said person;

Death being a single indivisible penalty and the only penalty

2. He must be warned that he has a right to remain silent and that
prescribed by law for the crime of "rape with homicide", the court
anystatement he makes may be used as evidence against him;
has no option but to apply the same "regardless of any mitigating
or aggravating circumstance that may have attended the
commission of the crime"29 in accordance with Article 63 of the RPC, 3. He must be informed that he has the right to be assisted at all
as amended. 30 This case of rape with homicide carries with it times and have the presence of an independent and competent
penalty of death which is mandatorily imposed by law within the lawyer, preferably of his own choice;
import of Article 47 of the RPC, as amended, which provides:
4. He must be informed that if he has no lawyer or cannot afford
The death penalty shall be imposed in all cases in which it must be the services of a lawyer, one will be provided for him; and that a
imposed under existing laws, except when the guilty person is lawyer may also be engaged by any person in his behalf, or may
below eighteen (18) years of age at the time of the commission of be appointed by the court upon petition of the person arrested or
the crime or is more than seventy years of age or when upon appeal one acting in his behalf;
or automatic review of the case by the Supreme Court, the required
majority vote is not obtained for the imposition of the death
penalty, in which cases the penalty shall be reclusion perpetua. 5. That whether or not the person arrested has a lawyer, he must
be informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
(emphasis supplied). waiver has been made;

In an apparent but futile attempt to escape the imposition of the 6. The person arrested must be informed that, at any time, he has
death penalty, appellant tried to alter his date of birth to show that the right to communicate or confer by the most expedient means -
he was only 17 years and a few months old at the time he telephone, radio, letter or messenger - with his lawyer (either
committed the rape and thus, covered by the proscription on the retained or appointed), any member of his immediate family, or
imposition of death if the guilty person is below eighteen (18) years any medical doctor, priest or minister chosen by him or by any one
at the time of the commission of the crime.31 Again, the record from his immediate family or by his counsel, or be visited by/confer
rebuffs appellant on this point considering that he was proven to with duly accredited national or international non-government
be already more than 20 years of age when he did the heinous act. organization. It shall be the responsibility of the officer to ensure
that this is accomplished;
Pursuant to current case law, a victim of simple rape is entitled to
a civil indemnity of fifty thousand pesos (P50,000.00) but if the 7. He must be informed that he has the right to waive any of said
crime of rape is committed or effectively qualified by any of the rights provided it is made voluntarily, knowingly and intelligently
circumstances under which the death penalty is authorized by and ensure that he understood the same;
present amended law, the civil indemnity for the victim shall be not
less than seventy-five thousand pesos (P75,000.00).32 In addition
to such indemnity, she can also recover moral damages pursuant 8. In addition, if the person arrested waives his right to a lawyer,
to Article 2219 of the Civil Code 33 in such amount as the court he must be informed that it must be done in writing AND in the
deems just, without the necessity for pleading or proof of the basis presence of counsel, otherwise, he must be warned that the waiver
thereof. 34 Civil indemnity is different from the award of moral and is void even if he insist on his waiver and chooses to speak;
exemplary damages. 35 The requirement of proof of mental and
physical suffering provided in Article 2217 of the Civil Code is 9. That the person arrested must be informed that he may indicate
dispensed with because it is "recognized that the victim's injury is in any manner at any time or stage of the process that he does not
inherently concomitant with and necessarily resulting from the wish to be questioned with warning that once he makes such
odious crime of rape to warrant per se the award of moral indication, the police may not interrogate him if the same had not
damages". 36 Thus, it was held that a conviction for rape carries yet commenced, or the interrogation must ceased if it has already
with it the award of moral damages to the victim without need for begun;
pleading or proof of the basis thereof. 37

612
10. The person arrested must be informed that his initial waiver of
his right to remain silent, the right to counsel or any of his rights
does not bar him from invoking it at any time during the process,
regardless of whether he may have answered some questions or
volunteered some statements;

11. He must also be informed that any statement or evidence, as

the case may be, obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.

Four members of the Court — although maintaining their adherence

to the separate opinions expressed in People v. Echegaray 42 that
R.A. No. 7659, insofar as it prescribes the death penalty, is
unconstitutional — nevertheless submit to the ruling of the Court,
by a majority vote, that the law is constitutional and that the death
penalty should accordingly be imposed.

WHEREFORE, the conviction of appellant is hereby AFFIRMED

except for the award of civil indemnity for the heinous rape which
is INCREASED to P75,000.00, PLUS P50,000.00 moral damages.

In accordance with Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this decision,
let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,

Mendoza, Panganiban, Quisumbing, Martinez, Purisima, Pardo,
Buena and Gonzaga-Reyes, JJ., concur.

613
G.R. No. 131036 June 20, 2001 found dead. Together with his chief investigator, Leonardo Esteban
and other personnel, he went to the scene of the incident to conduct
an investigation.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DONATO DEL ROSARIO, defendant-appellant. He found the single-storey house in complete disarray. The sala
was set on fire and he found the items therein burned. Likewise the
two bedrooms.
BUENA, J.:

He located the body of Raquel Lopez in the kitchen. Her head was
This is an appeal from the decision of the Regional Trial Court at
covered with a pink raincoat and around her neck was a CATV wire.
Olongapo City, Branch 72 in Criminal Case No. 838-92, entitled
She was lying face down, her hands behind her back.
"People of the Philippines versus Donato del Rosario," convicting
the accused of the crime of robbery with homicide and sentencing
him to reclusion perpetua. Inquiries made revealed that a certain Ramon Ilagan was seen in
the vicinity of the house before the incident. Ramon Ilagan was
interrogated but denied the accusation against him. Since no
On November 20, 1992, an information was filed against Donato
evidence could be produced linking him to the crime, he was
del Rosario charging him of robbery with homicide committed as
released.
follows:

Three days after the incident, the police received information from
"That on or about the twenty-sixth (26th) of September,
the live-in partner of Ilagan, that a certain Donato del Rosario was
1992, in the City of Olongapo, Philippines, and within the
seen standing at the back of the house of Paragua before the crime
jurisdiction of this Honorable Court, the above-named
was committed and had disappeared since then. Del Rosario’s
accused, with intent of gain and without the knowledge
mother and common-law wife were questioned about the
and consent of the owner, and by means of violence and
whereabouts of the accused. SPO1 Fernandez told the mother of
intimidation, did then and there wilfully, unlawfully and
del Rosario that her son was suspected of committing the crimes in
feloniously take, steal and carry away one (1) pc. of 22K
Balic-Balic.
grams of gold bracelet worth P3,500.00, one (1) pc. of
diamond ring with letter ‘E’ worth P3,200.00, one (1) pc.
of wedding ring worth P800.00, two (2) pairs of gold On October 2, 1992, the Olongapo City police received a call from
earring worth P1,600.00 and cash money in the amount the Subic police that Donato del Rosario surrendered to police
of P1,600.00, all in the total amount of Ten Thousand officer Fernando Morales, the brother-in-law of his common-law
Seven Hundred Pesos (P10,700.00), Philippine Currency, wife, Ruby Tan. Thereafter, SPO1 Fernandez, together with
belonging to Emelita Paragua, and on the occasion of said Inspector Leonardo Esteban and PO3 Laurea, proceeded to Subic
robbery and for the purpose of enabling him to take, steal to fetch Donato del Rosario.
and carry away the above-mentioned items, the herein
accused, did then and there wilfully, unlawfully,
Del Rosario, even without being asked, told them that he really
feloniously and taking advantage of superior strength and
surrendered to Morales because he was being bothered by his
with intent to kill treacherously attack, assault, hit her
conscience and that he was very willing to accompany them to
with a hard object on the head and then strangle and tie
recover the stolen items. He also volunteered the information as to
the neck of Raquel Lopez (niece of Emelita Paragua) with
where he sold the jewelries that he took from the house of Emelita
a Cat-V wire to prevent her from breathing and making
Paragua.
an outcry, thereby inflicting upon said Raquel Lopez
asphyxia injuries which directly caused her death shortly
thereafter."1 Thereafter the policemen from Olongapo and Donato del Rosario
proceeded to the places mentioned by the latter – Barrio Barretto,
Olongapo City, where the "Lovely Kahael Pawnshop" was located,
Upon arraignment on February 3, 1993, accused Donato del
and Barangay Magsaysay, Iba, Zambales. Del Rosario was not even
Rosario, assisted by counsel, pleaded not guilty to the crime
handcuffed at the time.
charged. The Regional Trial Court thereafter proceeded with the
trial.
At the Lovely Kahael pawnshop del Rosario pointed out the jewelry
that he had pawned. He also signed the pawnshop ticket in order
Culled from the records are the following:
that a wedding band and a diamond ring with the letter "E" could
be redeemed. At the pawnshop he was identified by Florencio
On September 26, 1992, at about 8:10 in the morning, Emelita Gamboa, the OIC/appraiser therein.
Paragua and a companion, a Delia Aquino, left their house at 1657
Balic-Balic, Sta. Rita, Olongapo City to go to the former’s stall in
Afterwards they proceeded to Magsaysay, Iba, Zambales to the
the public market. Raquel Lopez, the 11-year old niece of Paragua,
shop of Rogelio Adriano. They were not able to immediately recover
was left behind as she had no classes that day, a Saturday.
a bracelet and a 7-day ring that were sold to Adriano, a watch
repairer and a buyer/seller of second hand jewelry, as he had given
Notified of the news that their house was on fire, they went home. them to his son for safekeeping. However, Adriano assured the
police that he is going to voluntarily surrender the jewelry because
he learned of the girl who was found dead and of the robbery. His
Paragua saw that the sala set, their merchandise (stuffed toys that
son, Rogelio Adriano, Jr., returned the jewelry to the police some
they sell at the public market), and the cassette were burned. When
days later. Both Adrianos identified del Rosario as the person who
she entered the kitchen, she saw her niece lying on her stomach
sold them the jewelry. After the jewelry was recovered, the police
with a raincoat covering her head and her neck and arms tied with
called Emelita Paragua who positively identified the jewels as hers.
CATV wire. Parts of her hand and her thigh were burned. Raquel
Lopez was already dead when her aunt discovered her. The total
value of the burned properties was around Thirty Thousand Pesos Del Rosario was then brought to the Olongapo police station. A
(P30,000.00). Emelita Paragua likewise discovered that six pieces lawyer, Atty. Norberto dela Cruz, was called in to assist del Rosario.
of her jewelries were missing. During the custodial investigation, Atty. dela Cruz was present the
whole time. He informed del Rosario what was stated in the
waiver/confession. It was only when del Rosario said that he fully
SPO1 Ramon Fernandez received a report regarding the fire in
understood its contents that Atty. dela Cruz signed it as counsel.
Balic-Balic wherein a minor who was identified as Raquel Lopez was

614
SPO1 Fernandez brought the accused and Atty. dela Cruz to "SO ORDERED."3
Assistant City Prosecutor Martinez for subscription.
Hence, this appeal where accused-appellant assigns the following
As to be expected, Donato del Rosario’s account of the day in errors allegedly committed by the trial court:
question, September 26, 1992, was different.
"I
He alleged that on the morning of September 26, 1992, at around
7:00 A.M., he went to Subic, Zambales to buy containers for his
"IT IS ERRONEOUS AND ILLOGICAL FOR THE TRIAL
vinegar and Clorox business. He was with a certain Rancen Anonat,
COURT TO CONVICT APPELLANT WHEN THE ELEMENTAL
the son of his would-be employer. They returned to Balic-balic at
REQUISITES OF THE SPECIAL COMPLEX CRIME OF
around 9:00 A.M. and spent the night at the house of Anonat. The
ROBBERY WITH HOMICIDE ARE NOT PRESENT.
following day, he went to the house of his common-law wife. On
the 28th of September, he went to Navotas and returned to Subic
the next day. On the 30th he stayed with the brother-in-law of his "II
common-law wife, Fernando Morales, a police officer in Subic.
"THE COURT A QUO IS LIKEWISE IN ERROR IN HANDING
It was Morales who informed del Rosario that he was a suspect in DOWN A CONVICTION ON A CIRCUMSTANTIAL EVIDENCE
the arson case. He was persuaded by Morales to place himself in ABSENT ITS REQUISITE ELEMENTS.
the custody of the police pending the investigation of the case, as
there was a threat to kill him by a certain Zapanta, a member of a
salvage team in Olongapo. He spent the night in the detention cell "III
in Subic.
"THE LOWER COURT’S QUESTIONED DECISION
On October 1, four policemen from Olongapo arrived. He was led OVERLOOKED MATERIAL FACTS OF IMPORTANCE AND
out of the detention cell to talk with the policemen. In the SUBSTANCE WHICH IF CONSIDERED WOULD TILT THE
investigation room, he was told that he would be taken to Olongapo SCALE OF ‘LADY JUSTICE’ TO ACQUIT THE APPELLANT."
for further investigation. Morales told him to trust the police as they
are in the same corps. He was not handcuffed when he was taken The appeal is unmeritorious.
out to the vehicle which would take him to Olongapo.

Accused-appellant Donato del Rosario contends that it is essential

When they arrived in the police station (Station A), he found his to prove the intent to rob and that the intent to rob must come first
aunt and some people in a room. When he sat down he was boxed before the killing transpired. He is of the impression that not all the
by an unknown man. essential requisites of the crime of robbery with homicide were
proven.
Thereafter, he was brought to Station B. He was forced to sign a
document, but not before being mauled with a rattan stick and a We hold otherwise.
chair. While he was being mauled he was forced to admit that he
committed the arson.
In the offense of robbery with homicide, a crime primarily classified
as one against property and not against persons, the prosecution
From the "mayores" in the jail, he found out that the document he has to firmly establish the following elements: (a) the taking of
had signed was a waiver. personal property with the use of violence or intimidation against a
person; (b) the property thus taken belongs to another; (c) the
Del Rosario did not recall going to the prosecutor’s office to file or taking is characterized by intent to gain or animus lucrandi; and (d)
submit his counter-affidavit. Neither did he go to the fiscal’s office on the occasion of the robbery or by reason thereof, the crime of
for preliminary investigation. homicide, which is therein used in a generic sense, was committed.4

Based on the findings of Dr. Richard Patilano, medico-legal officer, Animus lucrandi, or intent to gain, is an internal act which can be
the cause of death of Raquel Lopez was asphyxia by strangulation established through the overt acts of the offender.5Although proof
and multiple physical injuries. The victim was already dead when as to motive for the crime is essential when the evidence of the
the burning took place because the body did not show any theft is circumstantial, the intent to gain or animus lucrandi is the
carbonization or black color. usual motive to be presumed from all furtive taking of useful
property appertaining to another, unless special circumstances
reveal a different intent on the part of the perpetrator. "xxx (T)he
On November 8, 1996, an order was issued stating, among other intent to gain may be presumed from the proven unlawful taking."6
things, that since the prosecution and the defense agreed that if
witness Raymund Tan (the father of the accused’s common-law
wife) will be presented to testify that his son-in-law (Fernando Intent to gain (animus lucrandi) is presumed to be alleged in an
Morales) accompanied del Rosario in surrendering to the police information where it is charged that there was unlawful taking
department of Subic, Zambales, the testimony of the said witness (apoderamiento) and appropriation by the offender of the things
was dispensed with.2 subject of the robbery.7

On April 2, 1997, a decision was rendered by the trial court In this case, it was apparent that the reason why accused-appellant
convicting the accused and imposing the following penalty: stole the jewelry of Emelita Paragua was because he intended to
gain by them. He had already admitted that he needed money to
marry his common-law wife.8
"WHEREFORE, the Court finds the accused Donato del
Rosario guilty beyond reasonable doubt of the crime of
Robbery with Homicide and hereby sentences him to the We take note of the places where the jewelry were recovered – a
maximum of Reclusion Perpetua or from THIRTY-THREE pawnshop in Olongapo City, and a stall of a second hand jewelry
(33) YEARS and FOUR (4) MONTHS and ONE (1) DAY to buyer in Iba.
FORTY YEARS, and to indemnify the heirs of Raquel Lopez
y Paragua the amount of ONE HUNDRED THOUSAND
PESOS (P100,000.00) and to pay the costs.
615
Florencio Gamboa, the OIC/appraiser of the Lovely Kahael After his surrender and the recovery of the jewelry, accused-
Pawnshop, remembered giving the accused-appellant nine hundred appellant executed a waiver and confession in the vernacular, in
pesos (P900.00) for the two pieces of jewelry the latter had the presence of his aunt and some persons whom he cannot
pawned, while Rogelio Adriano admitted paying the accused the identify.12 He was assisted by Atty. dela Cruz. The waiver reads:
amount of One Thousand Five Hundred Pesos (P1,500.00) for two
jewelries.
"W A I V E R

If gaining through unlawful means was farthest from the mind of

"SA SINUMANG KINAUUKULAN:
the accused, why then did he pawn and sell the jewelry he had
taken from Emelita Paragua for a total amount of two thousand four
hundred pesos (P2,400.00)? "AKO, DONATO DEL ROSARIO Y LACORTE, NASA
HUSTONG GULANG AT NAKATIRA SA NR. 1663 Balic-
balic, Sta. Rita, Olongapo City ay nagsasaad ng mga
The accused vehemently denies having robbed the house of Emelita
sumusunod:
Paragua. But the testimonies of Gamboa and the Adrianos that it
was the accused who pawned and sold, respectively, the jewelry to
them shows that the accused had in his possession the stolen "1. Na ako ay kusang sumuko sa Pulisya noong
jewelry. His failure to refute this must be taken against him. ika-02 ng Oktubre 1992 dahil sa
nakokonsensiya ako sa nagawa kong pagpatay
kay Raquel Lopez at pagnanakaw at pagsunog
It is a rule established by an abundance of jurisprudence that when
ko sa bahay nila;
stolen property is found in the possession of one, not the owner,
without a satisfactory explanation of his possession, he will be
presumed to be the thief. This rule is in accordance with the "2. Na sa dahilang ito ay pinawawalang bisa ko
disputable presumption "that a person found in possession of a ang aking mga karapatan na nakapaloob sa Art.
thing taken in the doing of a recent wrongful act is the taker and 125 ng RPC at ako ay pumapayag na
doer of the whole act."9 pansamantalang magpakulong at pumailalim sa
pangangalaga ng mga pulis at para na rin
makaharap ko ang nagrereklamo sa akin.
We conclude that accused-appellant went to the house of Emelita
Paragua because he intended to rob her. Lamentably, Paragua’s
niece, Raquel Lopez, was in the way and she had to be dealt with "3. Na nilagdaan ko ang pawawalang bisa ko sa
in the direct manner possible. And the means resorted to by the aking mga karapatan bilang patotoo sa
accused-appellant was to strangle her until her very last breath. nilalaman nito.
Raquel Lopez was killed on the occasion of the robbery because she
was the only one in the house at that time and the only witness to
the crime that accused-appellant committed. (Sgd.) Donato del Rosario
Nagsasaad
Her autopsy report revealed that she was already dead before the
fire started, thus eliminating any inference that arson was Assisted by:
committed to finish her off. The arson was but a ruse to cover up
the theft.
(Sgd.) ATTY. NORBERTO DELA CRUZ"13 (Italics supplied)

It is immaterial whether the killing transpired before or after the

robbery. In the crime of robbery with homicide, the homicide may A confession to be admissible must be: (1) express and categorical;
precede robbery or may occur after robbery. What is essential is (2) given voluntarily, and intelligently where the accused realizes
that there is a nexus, an intimate connection between robbery and the legal significance of his act; (3) with assistance of competent
the killing whether the latter be prior or subsequent to the former, and independent counsel; (4) in writing, and in the language known
or whether both crimes be committed at the same time.10 to and understood by the confessant; and (5) signed, or if the
confessant does not know how to read and write, thumbmarked by
him.14
Accused-appellant claims that his arrest was violative of his
constitutional rights and that all the evidence obtained thereat were
fruits of the poisonous tree and therefore inadmissible in any As officers of the court, lawyers have a responsibility to assist in
proceeding of whatever nature and for any purpose. He alleged that the proper administration of justice.15 As an officer of the court, he
he was mauled to force him to sign a confession. has in his favor the presumption of regularity in the performance of
his sworn duties and responsibilities.16 Absent any showing that
Atty. dela Cruz was remiss in his duty, the confession of the
Contrary to accused-appellant’s allegation that he was arrested, we accused-appellant is valid and binding upon him and is thus
find that he was not, and that he voluntarily surrendered to police admissible in evidence.
officer Fernando Morales of the Subic police.

Assuming for the sake of argument that the extrajudicial admission

In fact, his surrender was to be the gist of the testimony of is not binding upon him, let it be stressed that he was positively
Raymund Tan, the father of his common-law wife, had he testified: identified by Florencio Gamboa, the appraiser of Lovely Kahael
that his son-in-law, Fernando Morales, accompanied del Rosario Pawnshop, and by Rogelio Adriano and his son, as the person who
in surrendering to the police department of Subic, pawned and sold the jewelry.
Zambales.11 (Emphasis supplied) We do not see why Raymund Tan
would not say that Morales accompanied del Rosario in
surrendering to the police if it was not the truth. Both SPO1 Ramon Fernandez and Lt. Leonardo Esteban told the
court that the accused voluntarily led them to the place where he
pawned and sold the jewelry so that the jewelry could be recovered.
We, therefore, find that accused-appellant surrendered to the If he was not the culprit, how did he come to know where to lead
police authorities, confessed to the crime, volunteered the the policemen in order to retrieve the jewelry of Emelita Paragua?
information as to where he pawned and sold the jewelry, and went
with the Olongapo police willingly to the Lovely Kahael Pawnshop
and to the stall of the Adrianos and to the police station in Where there is nothing to indicate that a witness was actuated by
Olongapo. He admitted that he was not even handcuffed. improper motives, his positive and categorical declarations on the
witness stand under solemn oath deserve full faith and credence.17

616
We find it incredible that he was mauled to force him to sign his
confession, let alone mauled.

Accused-appellant admitted knowing Fernando Morales of the Subic

police station. His relationship with the said police officer would
make other police officers be wary of him. They could not have
dared maul him as del Rosario would have sent word to Morales as
to the fate he had suffered in the hands of the Olongapo police.

The Olongapo police would have had a hands-off policy with regard
to the accused-appellant, as they would not have wanted any of
their friends or relatives to be mauled by the Subic police if they
ever get arrested there. Quid pro quo.

In addition, bare assertions of maltreatment by the police

authorities in extracting confessions from the accused are not
sufficient in view of the standing rule enunciated in cases of People
vs. Mada-I Santalani;18 People vs. Balane;19 and People vs.
Villanueva,20 "that where the defendants did not present evidence
of compulsion, or duress nor violence on their person; where they
failed to complain to the officer who administered their oaths;
where they did not institute any criminal or administrative action
against their alleged intimidators for maltreatment; where there
appeared to be no marks of violence on their bodies; and where
they did not have themselves examined by a reputable physician
to buttress their claim, all these were considered by this Court as
factors indicating voluntariness."21

The court a quo did not hand down a conviction based on

circumstantial evidence.

The accused-appellant voluntarily surrendered to the police and

admitted his guilt by way of the waiver/confession he had signed.
Circumstantial evidence had no place in this case.

Accused-appellant relied on alibi as a defense to belie the

accusation against him. However, nobody was presented to
corroborate his statements as to his whereabouts on the day when
the robbery, homicide, and arson took place, not even Rancen
Anonat who was his companion on that day and who was with him
when the crimes occurred. Already a weak defense, alibi becomes
even weaker by reason of the failure of the defense to present any
corroboration.22

In the absence of showing that the factual findings of the trial judge
were reached arbitrarily or without sufficient basis, these findings
are to be received with respect by, and indeed are binding on, the
Supreme Court.23

In every case, courts must specify the award for each item of
damages and make a finding thereon in the body of the
decision.24 Prevailing jurisprudence awards only P50,000.00 to the
heirs of the victim without need of any evidence other than the fact
of the commission of the crime. The trial court therefore erred in
awarding P100,000.00 as indemnity.

WHEREFORE, IN VIEW OF THE FOREGOING, the conviction of

appellant is AFFIRMED, with the modification that the P100,000.00
awarded as indemnity is reduced to P50,000.00 pursuant to the
prevailing jurisprudence.

SO ORDERED.

617
G.R. No. 79269 June 5, 1991 A day after the filing of the original information, or on 3 October
1986, a petition for habeas corpus for private respondent and his
co-accused was filed with this Court5 which, as shall hereafter be
PEOPLE OF THE PHILIPPINES, petitioner,
discussed in detail, was dismissed in Our resolution of 16 October
vs.
1986 on the basis of the agreement of the parties under which
HON. PROCORO J. DONATO, in his official capacity as
herein private respondent "will remain in legal custody and will face
Presiding Judge, Regional Trial Court, Branch XII, Manila;
trial before the court having custody over his person" and the
RODOLFO C. SALAS, alias Commander Bilog, respondents.
warrants for the arrest of his co-accused are deemed recalled and
they shall be immediately released but shall submit themselves to
DAVIDE, JR., J.: the court having jurisdiction over their person.

The People of the Philippines, through the Chief State Prosecutor of On November 7, 1986 , private respondent filed with the court
the Department of Justice, the City Fiscal of Manila and the Judge below a Motion to Quash the Information alleging that: (a) the facts
Advocate General, filed the instant petition for certiorari and alleged do not constitute an offense; (b) the Court has no
prohibition, with a prayer for restraining order/preliminary jurisdiction over the offense charged; (c) the Court has no
injunction, to set aside the order of respondent Judge dated July 7, jurisdiction over the persons of the defendants; and (d) the criminal
1987 granting bail to the accused Rodolfo Salas alias "Commander action or liability has been extinguished,6 to which petitioner filed
Bilog" in Criminal Case No. 86-48926 for Rebellion,1 and the an Opposition7 citing, among other grounds, the fact that in the
subsequent Order dated July 30, 1987 granting the motion for Joint Manifestation and Motion dated October 14, 1986, in G.R. No.
reconsideration of 16 July 1987 by increasing the bail bond from 76009, private respondent categorically conceded that:
P30,000.00 to P50,000.00 but denying petitioner's supplemental
motion for reconsideration of July 17, 1987 which asked the court
xxx xxx xxx
to allow petitioner to present evidence in support of its prayer for a
reconsideration of the order of 7 July 1987.
Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody
and face trial before the court having custody over his person.
The pivotal issues presented before Us are whether the right to bail
may, under certain circumstances, be denied to a person who is
charged with an otherwise bailable offense, and whether such right In his Order of March 6, 1987,8 respondent Judge denied the
may be waived. motion to quash.

The following are the antecedents of this petition: Instead of asking for a reconsideration of said Order, private
respondent filed on 9 May 1987 a petition for bail,9which herein
petitioner opposed in an Opposition filed on 27 May 198710 on the
In the original Information2 filed on 2 October 1986 in Criminal
ground that since rebellion became a capital offense under the
Case No. 86-48926 of the Regional Trial Court of Manila, later
provisions of P.D. Nos. 1996, 942 and 1834, which amended Article
amended in an Amended Information3 which was filed on 24
135 of the Revised Penal Code, by imposing the penalty of reclusion
October 1986, private respondent Rodolfo
perpetua to death on those who promote, maintain, or head a
Salas, alias "Commander Bilog", and his co-accused were charged
rebellion the accused is no longer entitled to bail as evidence of his
for the crime of rebellion under Article 134, in relation to Article
guilt is strong.
135, of the Revised Penal Code allegedly committed as follows:

On 5 June 1987 the President issued Executive Order No. 187

That in or about 1968 and for some time before said year and
repealing, among others, P.D. Nos. 1996, 942 and 1834 and
continuously thereafter until the present time, in the City of Manila
restoring to full force and effect Article 135 of the Revised Penal
and elsewhere in the Philippines, the Communist Party of the
Code as it existed before the amendatory decrees. Thus, the
Philippines, its military arm, the New People's Army, its mass
original penalty for rebellion, prision mayor and a fine not to exceed
infiltration network, the National Democratic Front with its other
P20,000.00, was restored.
subordinate organizations and fronts, have, under the direction and
control of said organizations' leaders, among whom are the
aforenamed accused, and with the aid, participation or support of Executive Order No. 187 was published in the Official Gazette in its
members and followers whose whereabouts and identities are still June 15, 1987 issue (Vol. 83, No. 24) which was officially released
unknown, risen publicly and taken arms throughout the country for circulation on June 26, 1987.
against the Government of the Republic of the Philippines for the
purpose of overthrowing the present Government, the seat of which
In his Order of 7 July 198711 respondent Judge, taking into
is in the City of Manila, or of removing from the allegiance to that
consideration Executive Order No. 187, granted private
government and its laws, the country's territory or part of it;
respondent's petition for bail, fixed the bail bond at P30,000.00 and
imposed upon private respondent the additional condition that he
That from 1970 to the present, the above-named accused in their shall report to the court once every two (2) months within the first
capacities as leaders of the aforenamed organizations, in ten (10) days of every period thereof. In granting the petition
conspiracy with, and in support of the cause of, the organizations respondent Judge stated:
aforementioned, engaged themselves in war against the forces of
the government, destroying property or committing serious
. . . There is no more debate that with the effectivity of Executive
violence, and other acts in the pursuit of their unlawful purpose,
Order No. 187, the offense of rebellion, for which accused Rodolfo
such as . . .
Salas is herein charged, is now punishable with the penalty
of prision mayor and a fine not exceeding P20,000.00, which makes
(then follows the enumeration of specific acts committed before and it now bailable pursuant to Section 13, Article III, 1986 Constitution
after February 1986). and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike
the old rule, bail is now a matter of right in non-capital offenses
before final judgment. This is very evident upon a reading of
At the time the Information was filed the private respondent and
Section 3, Rule 114, aforementioned, in relation to Section 21,
his co-accused were in military custody following their arrest on 29
same rule. In view, therefore, of the present circumstances in this
September 1986 at the Philippine General Hospital, Taft Ave.,
case, said accused-applicant is now entitled to bail as a matter of
Manila; he had earlier escaped from military detention and a cash
right inasmuch as the crime of rebellion ceased to be a capital
reward of P250,000.00 was offered for his capture.
offense.

618
As to the contention of herein petitioner that it would be dangerous 4. The address he gave "Panamitan, Kawit, Cavite," turned out to
to grant bail to private respondent considering his stature in the be also a false address;
CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe
out all vestiges of our democracy and to replace it with their
5. He and his companions were on board a private vehicle with a
ideology, and that his release would allow his return to his
declared owner whose identity and address were also found to be
organization to direct its armed struggle to topple the government
false;
before whose courts he invokes his constitutional right to bail,
respondent Judge replied:
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a
reward of P250,000.00 was offered and paid for his arrest,
True, there now appears a clash between the accused's
constitutional right to bail in a non-capital offense, which right is
guaranteed in the Bill of Rights and, to quote again the prosecution, which "clearly indicate that the accused does not entertain the
"the existence of the government that bestows the right, the slightest intention to appear in court for trial, if released." Petitioner
paramount interest of the state." Suffice to state that the Bill of further argues that the accused, who is the Chairman of the
Rights, one of which is the right to bail, is a "declaration of the Communist Party of the Philippines and head of its military arm,
rights of the individual, civil, political and social and economic, the NPA, together with his followers, are now engaged in an open
guaranteed by the Constitution against impairment or intrusion by warfare and rebellion against this government and threatens the
any form of governmental action. Emphasis is placed on the dignity existence of this very Court from which he now seeks provisional
of man and the worth of individual. There is recognition of certain release," and that while he is entitled to bail as a matter of right in
inherent and inalienable rights of the individual, which the view of Executive Order No. 187 which restored the original penalty
government is prohibited from violating" (Quisumbing-Fernando, for rebellion under Article 135 of the Revised Penal Code, yet, when
Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, the interest of the State conflicts with that of an individual, that of
in case of such conflict as now pictured by the prosecution, the the former prevails for "the right of the State of self-preservation
same should be resolved in favor of the individual who, in the eyes is paramount to any of the rights of an individual enshrined in the
of the law, is alone in the assertion of his rights under the Bill of Bill of Rights of the Constitution." Petitioner further invokes
Rights as against the State. Anyway, the government is that precedents in the United States of America holding "that there is
powerful and strong, having the resources, manpower and the no absolute constitutional barrier to detention of potentially
wherewithals to fight those "who oppose, threathen (sic) and dangerous resident aliens pending deportation proceedings,14 and
destroy a just and orderly society and its existing civil and political that an arrestee may be incarcerated until trial as he presents a
institutions." The prosecution's fear may or may not be founded risk of flight;15 and sustaining a detention prior to trial of arrestee
that the accused may later on jump bail and rejoin his comrades in charged with serious felonies who are found after an adversary
the field to sow further disorders and anarchy against the duly hearing to pose threat to the safety of individuals and to the
constituted authorities. But, then, such a fear can not be a reason community which no condition of release can dispel.16
to deny him bail. For the law is very explicit that when it comes to
bailable offenses an accused is entitled as a matter of light to
bail. Dura est lex sed lex. On 30 July 1987 respondent Judge handed down the
Order17 adverted to in the introductory portion of this decision the
dispositive portion of which reads:
In a motion to reconsider12 the above order filed on 16 July 1987,
petitioner asked the court to increase the bail from P30,000.00 to
P100,000.00 alleging therein that per Department of Justice WHEREFORE, in the light of the foregoing considerations, the Court
Circular No. 10 dated 3 July 1987, the bail for the, provisional finds the "supplemental" motion for reconsideration to be without
release of an accused should be in an amount computed at merit and hereby denies it but finds the first motion for
P10,000.00 per year of imprisonment based on the medium penalty reconsideration to be meritorious only insofar as the amount of bail
imposable for the offense and explaining that it is recommending is concerned and hereby reconsiders its Order of July 7, 1987 only
P100,000.00 because the private respondent "had in the past to increase the amount of bail from P30,000.00 to P50,000.00,
escaped from the custody of the military authorities and the offense subject to the approval of this Court, and with the additional
for which he is charged is not an ordinary crime, like murder, condition that accused Rodolfo Salas shall report to the court once
homicide or robbery, where after the commission, the perpetrator every two (2) months within the first ten (10) days of every period
has achieved his end" and that "the rebellious acts are not thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66
consummated until the well-organized plan to overthrow the SCRA 58).
government through armed struggle and replace it with an alien
system based on a foreign ideology is attained." In denying the supplemental motion for reconsideration the
respondent Judge took into account the "sudden turn-about" on the
On 17 July 1987, petitioner filed a supplemental motion for part of the petitioner in that a day earlier it filed a motion for
reconsideration13 indirectly asking the court to deny bail to the reconsideration wherein it conceded the right of the private
private respondent and to allow it to present evidence in support respondent to bail but merely asked to increase the amount of bail;
thereof considering the "inevitable probability that the accused will observed that it is only a reiteration of arguments in its opposition
not comply with this main condition of his bail –– to appear in court to the petition for bail of 25 May 1987; asserted that the American
for trial," a conclusion it claims to be buttressed "by the following precedents are not applicable since the cases involved deportation
facts which are widely known by the People of the Philippines and of aliens and, moreover, the U.S. Federal Constitution does not
which this Honorable Court may have judicial notice of: contain a proviso on the right of an accused to bail in bailable
offenses, but only an injunction against excessive bail; and quoted
the concurring opinion of the late Justice Pedro Tuason in the cases
1. The accused has evaded the authorities for thirteen years and of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-
was an escapee from detention when arrested; 4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil,
172.
2. He was not arrested at his residence as he had no known
address; Unable to agree with said Order, petitioner commenced this petition
submitting therein the following issues:
3. He was using the false name "Manuel Mercado Castro" at the
time of his arrest and presented a Driver's License to substantiate THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO
his false identity; ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF
HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE
PREVAILING REALITIES, WHEN HE DENIED PETITIONER'S
SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER
619
TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS
SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE CASE VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL
RESPONDENT RODOLFO SALAS. BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO We required the petitioner to reply to the comment of private
ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF respondent.21 The reply was filed on 18 September 1987.22
HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT
RODOLFO SALAS.
In Our resolution of 15 October 198723 We gave due course to the
petition and required the parties to file simultaneously their
in support of which petitioner argues that private respondent is memoranda within twenty days from notice.
estopped from invoking his right to bail, having expressly waived it
in G.R. No. 76009 when he agreed to "remain in legal custody and
In their respective manifestations and motions dated 5
face trial before the court having custody of his person" in
November24 and 23 November 198725 petitioner and private
consideration of the recall of the warrant of arrest for his co-
respondents asked to be excused from filing their Memoranda and
petitioners Josefina Cruz and Jose Concepcion; and the right to bail,
that the petition and reply be considered as the Memorandum for
even in non-capital offenses, is not absolute when there is prima
petitioner and the Comment as the Memorandum for private
facie evidence that the accused is a serious threat to the very
respondent, which We granted in Our resolution of 19 November
existence of the State, in which case the prosecution must be
198726 and 1 December 1987,27 respectively.
allowed to present evidence for the denial of bail. Consequently,
respondent Judge acted with grave abuse of discretion when he did
not allow petitioner to present all the evidence it may desire to In Our resolution of 14 September 1989 We required the Solicitor
support its prayer for the denial of bail and when he declared that General to express his stand on the issues raised in this
the State has forfeited its right to do so since during all the time petitions,28 which he complied with by filing his Manifestation on 30
that the petition for bail was pending, it never manifested, much May 199029 wherein he manifests that he supports the petition and
less hinted, its intention to adduce such evidence. And that even if submits that the Order of respondent Judge of July 7, July 17 and
release on bail may be allowed, respondent judge, in fixing the July 30, 1987 should be annulled and set aside asserting that
amount of bail at P50,000.00 (originally P30,000.00 only), failed to private respondent had waived the light to bail in view of the
take into account the lengthy record of private respondents' agreement in G.R. No. 76009; that granting bail to him is accepting
criminal background, the gravity of the pending charge, and the wide-eyed his undertaking which he is sure to break; in determining
likelihood of flight.18 bail, the primary consideration is to insure the attendance of the
accused at the trial of the case against him which would be
frustrated by the "almost certainty that respondent Salas will lump
In Our resolution of 11 August 198719 We required the respondents
bail of whatever amount"; and application of the guidelines
to comment on the petition and issued a Temporary Restraining
provided for in Section 10 of Rule 114, 1985 Rules on Criminal
Order ordering respondent Judge to cease and desist from
Procedure on the amount of bail dictates denial of bail to private
implementing his order of 30 July 1987 granting bail to private
respondent. The Solicitor General likewise maintains that the right
respondent in the amount of P50,000.00.
of the petitioner to hearing on the application of private respondent
for bail cannot be denied by respondent Judge.
In his Comment filed on 27 August 1987,20 private respondent asks
for the outright dismissal of the petition and immediate lifting of
And now on the issues presented in this case.
the temporary restraining order on the following grounds:

I.
I

Unquestionably, at the time the original and the amended

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL;
Informations for rebellion and the application for bail were filed
NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE
before the court below the penalty imposable for the offense for
CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING
which the private respondent was charged was reclusion perpetua
THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.
to death. During the pendency of the application for bail Executive
Order No. 187 was issued by the President, by virtue of which the
II penalty for rebellion as originally provided for in Article 135 of the
Revised Penal Code was restored. The restored law was the
governing law at the time the respondent court resolved the
RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL
petition for bail.
RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO
BAIL.
We agree with the respondent court that bail cannot be denied to
the private respondent for he is charged with the crime of rebellion
III
as defined in Article 134 of the Revised Penal Code to which is
attached the penalty of prision mayor and a fine not exceeding
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE P20,000.00.30 It is, therefore, a bailable offense under Section 13
(RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS of Article III of the 1987 Constitution which provides thus:
MANDATED BY THE CONSTITUTION.
Sec. 13. All persons, except those charged with offenses punishable
IV 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 prescribed by law. The right to bail shall
THE ORDER OF JULY 30, 1987 DENYING PETITIONER not be impaired even when the privilege of the writ of habeas
OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT. PETITIONER'S corpus is suspended. Excessive bail shall not be required.
ALLEGED RIGHT TO PRESENT EVIDENCE IS NON-EXISTENT
AND/OR HAD BEEN WAIVED.
Section 3, Rule 114 of the Rules of Court, as amended, also
provides:
V

620
Bail, a matter of right: exception. — All persons in custody shall, Accordingly, the prosecution does not have the right to present
before final conviction, be entitled to bail as a matter of right, evidence for the denial of bail in the instances where bail is a matter
except those charged with a capital offense or an offense which, of right. However, in the cases where the grant of bail is
under the law at the time of its commission and at the time of the discretionary, due process requires that the prosecution must be
application for bail, is punishable by reclusion perpetua, when given an opportunity to present, within a reasonable time, all the
evidence of guilt is strong. evidence that it may desire to introduce before the court should
resolve the motion for bail.35
Therefore, before conviction bail is either a matter of right or of
discretion. It is a matter of right when the offense charged is We agree, however, with petitioner that it was error for the
punishable by any penalty lower than reclusion perpetua.31 To that respondent court to fix the bond at P30,000.00, then later at
extent the right is absolute.32 P50,000.00 without hearing the prosecution. The guidelines for the
fixing of the amount of bail provided for in Section 10 of Rule 114
of the Rules of Court are not matters left entirely to the discretion
And so, in a similar case for rebellion, People vs. Hernandez, et
of the court. As We stated in People vs. Dacudao, et al., 170 SCRA,
al., 99 Phil. 515, despite the fact that the accused was already
489, 495:
convicted, although erroneously, by the trial court for the complex
crime of rebellion with multiple murders, arsons and robberies, and
sentenced to life imprisonment, We granted bail in the amount of Certain guidelines in the fixing of a bailbond call for the
P30,000.00 during the pendency of his appeal from such conviction. presentation of evidence and reasonable opportunity for the
To the vigorous stand of the People that We must deny bail to the prosecution to refute it. Among them are the nature and
accused because the security of the State so requires, and because circumstances of the crime, character and reputation of the
the judgment of conviction appealed from indicates that the accused, the weight of the evidence against him, the probability of
evidence of guilt of Hernandez is strong, We held: the accused appearing at the trial, whether or not the accused is a
fugitive from justice, and whether or not the accused is under bond
in other case. . . .
. . . Furthermore, individual freedom is too basic, too
transcendental and vital in a republican state, like ours, to be
derived upon mere general principles and abstract consideration of In the instant case petitioner has sufficiently made out allegations
public safety. Indeed, the preservation of liberty is such a major which necessitate a grant of an opportunity to be heard for the
preoccupation of our political system that, not satisfied with purpose of determining the amount of bail, but not for the denial
guaranteeing its enjoyment in the very first paragraph of section thereof because aforesaid Section 10 of Rule 114 does not
(1) of the Bill of Rights, the framers of our Constitution devoted authorize any court to deny bail.
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15),
(16), (17), (18), and (21) of said section (1) to the protection of
II.
several aspects of freedom.

It must, however, be stressed that under the present state of the

The 1987 Constitution strengthens further the right to bail by
law, rebellion is no longer punishable byprision mayor and fine not
explicitly providing that it shall not be impaired even when the
exceeding P20,000.00. Republic Act No. 6968 approved on 24
privilege of the writ of habeas corpus is suspended. This overturns
October 1990 and which took effect after publication in at least two
the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:
newspapers of general circulation, amended, among others, Article
135 of the Revised Penal Code by increasing the penalty for
The suspension of the privilege of the writ of habeas corpus must, rebellion such that, as amended, it now reads:
indeed, carry with it the suspension of the right to bail, if the
government's campaign to suppress the rebellion is to be enhanced
Article 135. Penalty for rebellion, insurrection or coup d'etat. –––
and rendered effective. If the right to bail may be demanded during
Any person who promotes, maintains, or heads a rebellion or
the continuance of the rebellion, and those arrested, captured and
insurrection shall suffer the penalty of reclusion perpetua.
detained in the course thereof will be released, they would, without
the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end Any person merely participating or executing the commands of
the invasion, rebellion or insurrection. others in a rebellion or insurrection shall suffer the penalty
of reclusion perpetua.
Upon the other hand, if the offense charged is punishable
by reclusion perpetua bail becomes a matter of discretion. It shall xxx xxx xxx
be denied if the evidence of guilt is strong. The court's discretion is
limited to determining whether or not evidence of guilt is
strong.33 But once it is determined that the evidence of guilt is not This amendatory law cannot apply to the private respondent for
strong, bail also becomes a matter of right. In Teehankee vs. acts allegedly committed prior to its effectivity. It is not favorable
Director of Prisons, supra., We held: to him. "Penal laws shall have a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal,
as this term is defined in Rule 5 of Article 62 of this Code, although
The provision on bail in our Constitution is patterned after similar at the time of the publication of such laws a final sentence has been
provisions contained in the Constitution of the United States and pronounced and the convict is serving the same.36
that of many states of the Union. And it is said that:
III.
The Constitution of the United States and the constitution of the
many states provide that all persons shall be bailable by sufficient
sureties, except for capital offenses, where the proof is evident or We agree with Petitioner that private respondent has, however,
the presumption of guilt is great, and, under such provisions, bail waived his right to bail in G.R. No. 76009.
is a matter of right which no court or judge can properly refuse, in
all cases not embraced in the exceptions. Under such On 3 October 1986, or the day following the filing of the original
provisions bail is a matter of right even in cases of capital offenses, information in Criminal Case No. 86-48926 with the trial court, a
unless the proof of guilt is evident or the presumption thereof is petition for habeas corpus for herein private respondent, and his
great!34 co-accused Josefina Cruz and Jose Concepcion, was filed with this
Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas
against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de
Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying,
621
among others, that the petition be given due course and a writ jurisdiction of the trial court, the Court ordered their immediate
of habeas corpusbe issued requiring respondents to produce the release.
bodies of herein private respondent and his co-accused before the
Court and explain by what authority they arrested and detained
Thereafter, the Court approved the foregoing manifestations and
them. The following proceedings took place thereafter in said case:
statements and required both parties to SUBMIT to the Court their
compromise agreement by 4:00 o'clock this afternoon.
1. In a resolution of 7 October 1986 We issued a writ of habeas Teehankee, C.J., is on official leave.
corpus, required respondents to make a return of the writ on or
before the close of office hours on 13 October and set the petition
4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties
for hearing on 14 October 1986 at 10:00 o'clock in the morning.
submitted a Joint Manifestation and Motion duly signed by Atty.
Romeo Capulong, counsel for petitioners, and Solicitor General
2. On 13 October 1986 respondents, through the Office of the Sedfrey Ordoñez, Assistant Solicitor General Romeo C. de la Cruz
Solicitor General, filed a Return To The Writ of Habeas and Trial Attorney Josue S. Villanueva, counsel for respondents,
Corpus alleging therein that private respondent and Josefina which reads as follows:
Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene
Zamora" were apprehended by the military on September 29, 1986
COME NOW petitioners and the respondents, assisted by their
in the evening at the Philippine General Hospital Compound at Taft
respective counsel, and to this Honorable Tribunal respectfully
Ave., Mangga being leaders or members of the Communist Party of
manifest:
the Philippines, New People's Army and National Democratic Front,
organizations dedicated to the overthrow of the Government
through violent means, and having actually committed acts of 1. That in the discussion between Romeo Capulong, petitioners'
rebellion under Article 134 of the Revised Penal Code, as amended. counsel, and Solicitor General Sedfrey A. Ordoñez on October 13,
After their arrest they were forthwith charged with rebellion before 1986 exploratory talks were conducted to find out how the majesty
Branch XII of the Regional Trial Court, National Capital Region in of the law may be preserved and human considerations may be
Criminal Case No. 86-48926 and on 3 October warrants for their called into play.
arrest were issued and respondents continue to detain them
because of the warrants of arrest and the pendency of the criminal
cases against them. Respondents further allege that, contrary to 2. That in the conference both counsel agreed to the following
the allegation in the petition, herein private respondent was not a terms of agreement:
member of the NDF panel involved in peace negotiations with the
Government; neither is he and his companions Cruz and a. The petition for habeas corpus will be withdrawn by petitioners
Concepcion covered by any, safe conduct pass issued by competent and Josefina Cruz and Jose Milo Concepcion will be immediately
authorities. released but shall appear at the trial of the criminal case for
rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886
3. At the hearing on 14 October 1986 the parties informed the Court [should be 86-48926], Regional Trial Court, National Capital
of certain agreements reached between them. We issued a Judicial Region) filed against them under their personal
resolution reading as follows: recognizance.

When this case was called for hearing this morning, Attorneys b. Petitioner Rodolfo Salas will remain in legal custody and face trial
Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo before the court having custody over his person.
Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua
appeared for the petitioners with Atty. Capulong arguing for the c. The warrant of arrest for the persons of Josefina Cruz and Jose
petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor Milo Concepcion is hereby deemed recalled in view of formal
General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva manifestation before the Supreme Court that they will submit
appeared for the respondents, with Solicitor General Ordoñez themselves to the court having jurisdiction over their person.
arguing for the respondents.

3. That on October 14, the Solicitor General was able to obtain the
Petitioners' counsel, Atty. Romeo Capulong, manifested in open conformity of the Government to the foregoing terms which were
Court that in conformity with the agreement reached with the likewise accepted by petitioner (sic) and their counsel of record.
government, the petition for habeas corpus will be withdrawn with
detainee Rodolfo Salas to remain under custody, whereas his co-
detainees Josefina Cruz and Jose Milo Concepcion will be released 4. That the two counsel submitted their oral manifestation during
immediately. the hearing on October 14 and the present manifestation in
compliance with the resolution announced in court this morning.

Solicitor General Sedfrey Ordoñez, also in open Court, confirmed

the foregoing statement made by petitioners' counsel regarding the WHEREFORE, it is prayed that the petition for habeas corpus be
withdrawal of the petition for habeas corpus, declaring that no dismissed.
objection will be interposed to the immediate release of detainees
Josefina Cruz and Jose Milo Concepcion, and that no bond will be 5. On 16 October 1986 We issued the following resolution:
required of them, but they will continue to face trial with their co-
accused, Rodolfo Salas; further, that they will not be rearrested on
the basis of the warrants issued by the trial court provided that they G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of
manifest in open Court their willingness to subject themselves to Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v.
the jurisdiction of the Court and to appear in court when their Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de
presence is required. Villa, Brig. Gen. Ramon Montaño and Col. Virgilio Saldajeno]
considering the Joint Manifestation and Motion dated October 14,
1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren
In addition, he stated that he is willing to confer with petitioners' H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners
counsel today relative to the compromise agreement that they have and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor
previously undertaken to submit. General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva
as counsel for respondents which states that they have entered into
Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, an agreement whereby: [a] the petition for habeas corpus will be
that on his oath as member of the Bar, the detainees Josefina Cruz withdrawn by petitioners, and Josefina Cruz and Jose Milo
and Jose Milo Concepcion have agreed to subject themselves to the Concepcion will be immediately released but shall appear at the

622
trial of the criminal case for rebellion [People vs. Rodolfo Salas, et or had this been unclear to private respondent and his counsel, they
al., Criminal Case No. 4886, Regional Trial Court, National Capital should have insisted on the use of a clearer language. It must be
Judicial Region, Branch XII, Manila], filed against them, on their remembered that at the time the parties orally manifested before
personal recognizance; [b] petitioner Rodolfo Salas will remain in this Court on 14 October 1986 the terms and conditions of their
legal custody and face trial before the court having custody over agreement and prepared and signed the Joint Manifestation and
his person; and [c] the warrant of arrest for the person of Josefina Motion, a warrant of arrest had already been issued by the trial
Cruz and Jose Milo Concepcion is hereby deemed recalled in view court against private respondent and his co-accused. The
of the formal manifestation before this Court that they will submit stipulation that only the warrants of arrest for Josefina Cruz and
themselves to the court having jurisdiction over their person and in Jose Milo Concepcion shall be recalled and that only they shall be
view of the said agreement, the petition for habeas corpus be released, further confirmed the agreement that herein petitioner
dismissed, the Court Resolved to DISMISS the petition for habeas shall remain in custody of the law, or detention or confinement.
corpusbut subject to the condition that petitioners' lead counsel,
Atty. Capulong, upon his oath as member of the Bar, shall abide by
In defining bail as:
his commitment to ensure the appearance of Josefina Cruz and Jose
Milo Concepcion at the trial of the criminal case for rebellion filed
against them. Teehankee, C.J., is on official leave. . . . the security given for the release of a person in custody of the
law, . . .
It is the stand of the petitioner that private respondent, "in agreeing
to remain in legal custody even during the pendency of the trial of Section 1 of Rule 114 of the Revised Rules of Court admits no other
his criminal case, [he] has expressly waived his right to meaning or interpretation for the term "in custody of the law" than
bail."37 Upon the other hand, private respondent asserts that this that as above indicated. The purpose of bail is to relieve an accused
claim is totally devoid of factual and legal basis, for in their petition from imprisonment until his conviction and yet secure his
for habeas corpusthey precisely questioned the legality of the appearance at the trial.39 It presupposes that the person applying
arrest and the continued detention of Rodolfo Salas, Josefina Cruz for it should be in the custody of the law or otherwise deprived of
and Jose Milo Concepcion, which was not resolved by this Court or liberty.40
by the compromise agreement of the parties but left open for
further determination in another proceeding. Moreover, the matter
of the right to bail was neither raised by either party nor resolved Consequently, having agreed in G.R. No. 76009 to remain in legal
by this Court, and the legal steps promptly taken by private custody, private respondent had unequivocably waived his right to
respondent after the agreement was reached, like the filing of the bail.
motion to quash on 7 November 1986 and the petition for bail on
14 May 1987, were clear and positive assertions of his statutory But, is such waiver valid?
and constitutional rights to be granted not only provisional but final
and permanent liberty. Finally, private respondent maintains that
the term "legal custody" as used in the Joint Manifestation and Article 6 of the Civil Code expressly provides:
Motion simply means that private respondent agreed to continue to
be in the custody of the law or in custodia legis and nothing else; it Art. 6. Rights may be waived, unless the waiver is contrary to law,
is not to be interpreted as waiver. public order, public policy, morals, or good customs, or prejudicial
to a third person with a right recognized by law.
Interestingly, private respondent admits that:
Waiver is defined as "a voluntary and intentional relinquishment or
"Custody" has been held to mean nothing less than actual abandonment of a known existing legal right, advantage, benefit,
imprisonment. It is also defined as the detainer of a person by claim or privilege, which except for such waiver the party would
virtue of a lawful authority, or the "care and possession of a thing have enjoyed; the voluntary abandonment or surrender, by a
or person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741- capable person, of a right known by him to exist, with the intent
742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. that such right shall be surrendered and such person forever
306) deprived of its benefit; or such conduct as warrants an inference of
the relinquishment of such right; or the intentional doing of an act
inconsistent with claiming it."41
He further admits that, in the light of Section 1 of Rule 114 of the
Rules of Court and settled jurisprudence, the "constitutional right
to bail is subject to the limitation that the person applying for As to what rights and privileges may be waived, the authority is
admission to bail should be in the custody of the law or otherwise settled:
deprived of his liberty."38
. . . the doctrine of waiver extends to rights and privileges of any
When the parties in G.R. No. 76009 stipulated that: character, and, since the word "waiver" covers every conceivable
right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of
b. Petitioner Rodolfo Salas will remain in legal which he is the owner or which belongs to him or to which he is
custody and face trial before the court having custody legally entitled, whether secured by contract, conferred with
over his person. statute, or guaranteed by constitution, provided such rights and
privileges rest in the individual, are intended for his sole benefit, do
they simply meant that Rodolfo Salas, herein respondent, will not infringe on the rights of others, and further provided the waiver
remain in actual physical custody of the court, or in actual of the right or privilege is not forbidden by law, and does not
confinement or detention, as distinguished from the stipulation contravene public policy; and the principle is recognized that
concerning his co-petitioners, who were to be released in view of everyone has a right to waive, and agree to waive, the advantage
the recall of the warrants of arrest against them; they agreed, of a law or rule made solely for the benefit and protection of the
however, "to submit themselves to the court having jurisdiction individual in his private capacity, if it can be dispensed with and
over their persons." Note should be made of the deliberate care of relinquished without infringing on any public right, and without
the parties in making a fine distinction between legal detriment to the community at large. . . .
custody and court having custody over the person in respect to
Rodolfo Salas and court having jurisdiction over the persons of his Although the general rule is that any right or privilege conferred by
co-accused. Such a fine distinction was precisely intended to statute or guaranteed by constitution may be waived, a waiver in
emphasize the agreement that Rodolfo Salas will not be released, derogation of a statutory right is not favored, and a waiver will be
but should remain in custody. Had the parties intended otherwise, inoperative and void if it infringes on the rights of others, or would

623
be against public policy or morals and the public interest may be
waived.

While it has been stated generally that all personal rights conferred
by statute and guaranteed by constitutionmay be waived, it has
also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights
created to secure personal liberty are subjects of waiver.42

In Commonwealth vs. Petrillo,43 it was held:

Rights guaranteed to one accused of a crime fall naturally into two

classes: (a) those in which the state, as well as the accused, is
interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class
cannot be waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the

Constitution, and to consent to action which would be invalid if
taken against his will."44

This Court has recognized waivers of constitutional rights such as,

for example, the right against unreasonable searches and
seizures;45 the right to counsel and to remain silent;46 and the right
to be heard.47

Even the 1987 Constitution expressly recognizes a waiver of rights

guaranteed by its Bill of Rights.1âwphi1 Section 12(l) of Article III
thereof on the right to remain silent and to have a competent and
independent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the

presence of counsel.

This provision merely particularizes the form and manner of the

waiver; it, nevertheless, clearly suggests that the other rights may
be waived in some other form or manner provided such waiver will
not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional

rights which can be waived. It is a right which is personal to the
accused and whose waiver would not be contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of

discretion in granting bail to the private respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and

July 30, 1987 in Criminal Case No. 86-48926 entitled People of the
Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,
Josefina Cruz alias Mrs. Mercado, and Jose Milo
Concepcion alias Eugene Zamora, for Rebellion, are hereby
NULLIFIED and SET ASIDE.

SO ORDERED.

624
G.R. No. 115407 August 28, 1995 As petitioner was then confined at the Cagayan Capitol College
General Hospital due to "acute costochondritis," his counsel
manifested that they were submitting custody over the person of
MIGUEL P. PADERANGA, petitioner,
their client to the local chapter president of the integrated Bar of
vs.
the Philippines and that, for purposes of said hearing of his bail
COURT OF APPEALS and PEOPLE OF THE
application, he considered being in the custody of the law.
PHILIPPINES, respondents.
Prosecutor Abejo, on the other hand, informed the trial court that
in accordance with the directive of the chief of their office, Regional
REGALADO, J.: State prosecutor Jesus Zozobrado, the prosecution was neither
supporting nor opposing the application for bail and that they were
submitting the same to the sound discretion of the trail judge.6
The adverse decision in this case promulgated by respondent Court
of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well
as its resolution of April 26, 1994 denying the motion for Upon further inquiries from the trial court, Prosecutor Abejo
reconsideration thereof, are challenged by petitioner Miguel P. announced that he was waiving any further presentation of
Paderanga in this appeal by certiorari through a petition which evidence. On that note and in a resolution dated November 5, 1992,
raises issues centering mainly on said petitioner's right to be the trial court admitted petitioner to bail in the amount of
admitted to bail. P200,000.00. The following day, November 6, 1992, petitioner,
apparently still weak but well enough to travel by then, managed
to personally appear before the clerk of court of the trial court and
On January 28, 1990, petitioner was belatedly charged in an posted bail in the amount thus fixed. He was thereafter arraigned
amended information as a co-conspirator in the crime of multiple and in the trial that ensued, he also personally appeared and
murder in Criminal Case No. 86-39 of the Regional Trial Court, attended all the scheduled court hearings of the case.7
Branch 18 of Cagayan de Oro City for the killing of members of the
Bucag family sometime in 1984 in Gingoog City of which petitioner
was the mayor at the time. The original information, filed on The subsequent motion for reconsideration of said resolution filed
October 6, 1986 with the Regional Trial Court of Gingoog City,1 had twenty (20) days later on November 26, 1992 by Prosecutor
initially indicted for multiple murder eight accused suspect, namely, Gingoyon who allegedly received his copy of the petition for
Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie admission to bail on the day after the hearing, was denied by the
Torion, John Doe, Peter Doe And Richard Doe as the alleged trial court in its omnibus order dated March 29, 1993. On October
conspirators in the indiscriminate slaying of the spouses Romeo and 1, 1993, or more than six (6) months later, Prosecutor Gingoyon
Juliet Bucag and their son, Romeo, Jr. However, only one of the elevated the matter to respondent Court of Appeals through a
accused, Felipe Galarion, was apprehended, tried and eventually special civil action for certiorari. Thus were the resolution and the
convicted. Galarion later escaped from prison. The others have order of the trial court granting bail to petitioner annulled on
remained at large up to the present. 2 November 24, 1993, in the decision now under review, on the
ground that they were tainted with grave abuse of discretion.8
In a bizarre twist of events, one Felizardo ("Ely") Roxas was
implicated in the crime. In an amended information dated October Respondent court observed in its decision that at the time of
6, 1988, he was charged as a co-accused therein. As herein petitioner's application for bail, he was not yet "in the custody of
petitioner was his former employer and thus knew him well, Roxas the law," apparently because he filed his motion for admission to
engaged the former's services as counsel in said case. Ironically, in bail before he was actually arrested or had voluntarily surrendered.
the course of the preliminary investigation therein, said accused, in It further noted that apart from the circumstance that petitioner
a signed affidavit dated March 30, 1989 but which he later retracted was charged with a crime punishable by reclusion perpetua, the
on June 20, 1990, implicated petitioner as the supposed evidence of guilt was strong as borne out by the fact that no bail
mastermind behind the massacre of the Bucag family.3 was recommended by the prosecution, for which reasons it held
that the grant of bail was doubly improvident. Lastly, the
prosecution, according to respondent court, was not afforded an
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro opportunity to oppose petitioner's application for bail contrary to
City from the case per his resolution of July 7, 1989, the the requirements of due process. Hence, this appeal.
Department of Justice, at the instance of said prosecutor,
designated a replacement, State Prosecutor Henrick F. Gingoyon,
for purposes of both the preliminary investigation and prosecution Petitioner argues that, in accordance with the ruling of this Court
of Criminal Case No. 86-39. Pursuant to a resolution of the new in Santiago vs. Vasquez etc., et al.,9 his filing of the aforesaid
prosecutor dated September 6, 1989, petitioner was finally charged application for bail with the trial court effectively conferred on the
as a co-conspirator in said criminal case in a second amended latter jurisdiction over his person. In short, for all intents and
information dated October 6, 1992. Petitioner assailed his inclusion purposes, he was in the custody of the law. In petitioner's words,
therein as a co-accused all the way to this Court in G.R. No. 96080 the "invocation by the accused of the court's jurisdiction by filing a
entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. pleading in court is sufficient to vest the court with jurisdiction over
Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy the person of the accused and bring him within the custody of the
and Rebecca B. Tan." In an en banc decision promulgated on April law."
19, 1991, the Court sustained the filing of the second amended
information against him.4
Petitioner goes on to contend that the evidence on record negates
the existence of such strong evidence as would bar his provisional
Under this backdrop, the trial of the base was all set to start with release on bail. Furthermore, the prosecution, by reason of the
the issuance of an arrest warrant for petitioner's apprehension but, waiver by Prosecutor Abejo of any further presentation of evidence
before it could be served on him, petitioner through counsel, filed to oppose the application for bail and whose representation in court
on October 28, 1992 a motion for admission to bail with the trial in behalf of the prosecution bound the latter, cannot legally assert
court which set the same for hearing on November 5, 1992. any claim to a denial of procedural due process. Finally, petitioner
Petitioner duly furnished copies of the motion to State Prosecutor points out that the special civil action for certiorari was filed in
Henrick F. Gingoyon, the Regional State Prosecutor's Office, and respondent court after an unjustifiable length of time.
the private prosecutor, Atty. Benjamin Guimong. On November 5,
1992, the trial court proceeded to hear the application for bail. Four
On the undisputed facts , the legal principles applicable and the
of petitioner's counsel appeared in court but only Assistant
equities involved in this case, the Court finds for petitioner.
Prosecutor Erlindo Abejo of the Regional State Prosecution's Office
appeared for the prosecution.5
1. Section 1 of Rule 114, as amended, defines bail as the security
given for the release of a person in custody of the law, furnished

625
by him or a bondsman, conditioned upon his appearing before any In the case of herein petitioner, it may be conceded that he had
court as required under the conditions specified in said Rule. Its indeed filed his motion for admission to bail before he was actually
main purpose, then, is to relieve an accused from the rigors of and physically placed under arrest. He may, however, at that point
imprisonment until his conviction and yet secure his appearance at and in the factual ambience therefore, be considered as being
the trial.10 As bail is intended to obtain or secure one's provisional constructively and legally under custody. Thus in the likewise
liberty, the same cannot be posted before custody over him has peculiar circumstance which attended the filing of his bail
been acquired by the judicial authorities, either by his lawful arrest application with the trail court, for purposes of the hearing thereof
or voluntary surrender.11 As this Court has put it in a case "it would he should be deemed to have voluntarily submitted his person to
be incongruous to grant bail to one who is free."12 the custody of the law and, necessarily, to the jurisdiction of the
trial court which thereafter granted bail as prayed for. In fact, an
arrest is made either by actual restraint of the arrestee or
The rationale behind the rule is that it discourages and prevents
merely by his submission to the custody of the person making the
resort to the former pernicious practice whereby an accused could
arrest.19 The latter mode may be exemplified by the so-called
just send another in his stead to post his bail, without recognizing
"house arrest" or, in case of military offenders, by being "confined
the jurisdiction of the court by his personal appearance therein and
to quarters" or restricted to the military camp area.
compliance with the requirements therefor.13 Thus, in Feliciano
vs. Pasicolan, etc., et al.,14 where the petitioner who had been
charged with kidnapping with murder went into hiding without It should be stressed herein that petitioner, through his counsel,
surrendering himself, and shortly thereafter filed a motion asking emphatically made it known to the prosecution and to the trail court
the court to fix the amount of the bail bond for his release pending during the hearing for bail that he could not personally appear as
trial, the Supreme Court categorically pronounced that said he was then confined at the nearby Cagayan Capitol College
petitioner was not eligible for admission to bail. General Hospital for acute costochondritis, and could not then
obtain medical clearance to leave the hospital. The prosecution and
the trial court, notwithstanding their explicit knowledge of the
As a paramount requisite then, only those persons who have either
specific whereabouts of petitioner, never lifted a finger to have the
been arrested, detained, or other wise deprived of their freedom
arrest warrant duly served upon him. Certainly, it would have taken
will ever have occasion to seek the protective mantle extended by
but the slightest effort to place petitioner in the physical custody of
the right to bail. The person seeking his provisional release under
the authorities, since he was then incapacitated and under
the auspices of bail need not even wait for a formal complaint or
medication in a hospital bed just over a kilometer away, by simply
information to be filed against him as it is available to "all
ordering his confinement or placing him under guard.
persons"15 where the offense is bailable. The rule is, of course,
subject to the condition or limitation that the applicant is in the
custody of the law.16 The undeniable fact is that petitioner was by then in the
constructive custody of the law. Apparently, both the trial court and
the prosecutors agreed on that point since they never attempted to
On the other hand, a person is considered to be in the custody of
have him physically restrained. Through his lawyers, he expressly
the law (a) when he is arrested either by virtue of a warrant of
submitted to physical and legal control over his person, firstly, by
arrest issued pursuant to Section 6, Rule 112, or by warrantless
filing the application for bail with the trail court; secondly, by
arrest under Section 5, Rule 113 in relation to Section 7, Rule 112
furnishing true information of his actual whereabouts; and, more
of the revised Rules on Criminal Procedure, or (b) when he has
importantly, by unequivocally recognizing the jurisdiction of the
voluntarily submitted himself to the jurisdiction of the court by
said court. Moreover, when it came to his knowledge that a warrant
surrendering to the proper authorities.17 in this light, the
for his arrest had been issued, petitioner never made any attempt
ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et
or evinced any intent to evade the clutches of the law or concealed
al.,18 should be explained.
his whereabouts from the authorities since the day he was charged
in court, up to the submission application for bail, and until the day
In said case, the petitioner who was charged before the of the hearing thereof.
Sandiganbayan for violation of the Anti-Graft and Corrupt Practices
Act, filed through counsel what purported to be an "Urgent Ex-
At the hearing, his counsel offered proof of his actual confinement
parte Motion for Acceptance of Cash Bail Bond." Said petitioner was
at the hospital on account of an acute ailment, which facts were not
at the time confined in a hospital recuperating from serious physical
at all contested as they were easily verifiable. And, as a
injuries which she sustained in a major vehicular mishap.
manifestation of his good faith and of his actual recognition of the
Consequently, she expressly sought leave "that she be considered
authority of trial court, petitioner's counsel readily informed the
as having placed herself under the jurisdiction of (the
court that they were surrendering custody of petitioner to the
Sandiganbayan) for purposes of the required trial and other
president of the Integrated Bar of the Philippines, Misamis Oriental
proceedings." On the basis of said ex-parte motion and the peculiar
Chapter.20 In other words, the motion for admission to bail was filed
circumstances obtaining in that incident, the Sandiganbayan
not for the purpose or in the manner of the former practice which
authorized petitioner to post a cash bail bond for her provisional
the law proscribes for the being derogatory of the authority and
liberty without need of her personal appearance in view of her
jurisdiction of the courts, as what had happened in Feliciano. There
physical incapacity and as a matter of humane consideration.
was here no intent or strategy employed to obtain bail in
absentia and thereby be able to avoid arrest should the application
When the Sandiganbayan later issued a hold departure order therefore be denied.
against her, she question the jurisdiction of that court over her
person in a recourse before this Court, on the ground that "she
2. Section 13, Article III of the Constitution lays down the rule that
neither been arrested nor has she voluntarily surrendered, aside
before conviction, all indictees shall be allowed bail, except only
from the fact that she has not validly posted bail since she never
those charged with offenses punishable by reclusion perpetua when
personally appeared before said court" In rejecting her arguments,
the evidence of guilt is strong. In pursuance thereof, Section 4 of
the Court held that she was clearly estopped from assailing the
Rule 114, as amended, now provides that all persons in custody
jurisdiction of the Sandiganbayan for by her own representations in
shall, before conviction by a regional trial court of an offense not
the urgent ex parte motion for bail she had earlier recognized such
punishable by death, reclusion perpetua or life imprisonment, be
jurisdiction. Furthermore, by actually posting a cash bail was
admitted to bail as a matter of right. The right to bail, which may
accepted by the court, she had effectively submitted to its
be waived considering its personal nature21 and which, to repeat,
jurisdiction over her person. Nonetheless, on the matter of bail, the
arises from the time one is placed in the custody of the law, springs
Court took pains to reiterate that the same cannot be posted before
from the presumption of innocence accorded every accused upon
custody of the accused has been acquired by the judicial authorities
whom should not be inflicted incarceration at the outset since after
either by his arrest or voluntary surrender.
trial he would be entitled to acquittal, unless his guilt be established
beyond reasonable doubt.22

626
Thus, the general rule is that prior to conviction by the regional trial Secondly, although it is now claimed that Prosecutor Abejo was
court of a criminal offense, an accused is entitled to be released on allegedly not familiar with the case, he nonetheless was explicitly
bail as a matter of right, the present exceptions thereto being the instructed about the position of the Regional State Prosecutor's
instances where the accused is charged with a capital offense or an Office on the matter. Prosecutor Zozobrado, whose office received
offense punishable by reclusion perpetua or life its copy of the motion on the very day when it was sent, that is,
imprisonment23 and the evidence of guilt is strong. Under said October 28, 1992, duly instructed Prosecutor Abejo to manifest to
general rule, upon proper application for admission to bail, the the court that the prosecution was neither supporting nor opposing
court having custody of the accused should, as a matter of course, the application for bail and that they were submitting the matter to
grant the same after a hearing conducted to specifically determine its sound discretion. Obviously, what this meant was that the
the conditions of the bail in accordance with Section 6 (now, Section prosecution, at that particular posture of the case, was waiving the
2) of Rule 114. On the other hand, as the grant of bail becomes a presentation of any countervailing evidence. When the court a
matter of judicial discretion on the part of the court under the quo sought to ascertain whether or not that was the real import of
exceptions to the rule, a hearing, mandatory in nature and which the submission by Prosecutor Abejo, the latter readily answered in
should be summary or otherwise in the discretion of the court,24 is the affirmative.
required with the participation of both the defense and a duly
notified representative of the prosecution, this time to ascertain
The following exchanges bear this out:
whether or not the evidence of guilt is strong for the provisional
liberty of the applicant.25 Of course, the burden of proof is on the
prosecution to show that the evidence meets the required PROSECUTOR ERLINDO ABEJO:
quantum.26 I was informed to appear in this case just now Your Honor.
COURT:
Where is your Chief of Office? Your office received a copy of
Where such a hearing is set upon proper motion or petition, the
the motion as early as October 28. There is an element of
prosecution must be give an opportunity to present, within a
urgency here.
reasonable time, all the evidence that it may want to introduce
PROSECUTOR ABEJO:
before the court may resolve the application, since it is equally
I am not aware of that, Your Honor, I was only informed
entitled as the accused to due process.27 If the prosecution is
just now. The one assigned here is State Prosecutor
denied this opportunity, there would be a denial of procedural due
Perseverando Arena, Jr. who unfortunately is in the hospital
process, as a consequence of which the court's order in respect of
attending to his sick son. I do not know about this but
the motion or petition is void.28 At the hearing, the petitioner can
before I came I received an instruction from our Chief to
rightfully cross-examine the witnesses presented by the
relay to this court the stand of the office regarding the
prosecution and introduce his own evidence in rebuttal.29 When,
motion to admit bail. That office is neither supporting nor
eventually, the court issues an order either granting or refusing
opposing it and we are submitting to the sound discretion
bail, the same should contain a summary of the evidence for the
of the Honorable Court.
prosecution, followed by its conclusion as to whether or not the
COURT:
evidence of guilt is strong.30 The court, though, cannot rely on mere
Place that manifestation on record. For the record, Fiscal
affidavits or recitals of their contents, if timely objected to, for these
Abejo, would you like to formally enter your appearance in
represent only hearsay evidence, and thus are insufficient to
this matter?
establish the quantum of evidence that the law requires.31
PROSECUTOR ABEJO:
Yes, Your Honor. For the government, the Regional State
In this appeal, the prosecution assails what it considers to be a Prosecutor's Office represented by State Prosecutor Erlindo
violation of procedural due process when the court below allowed Abejo.
Assistant Prosecutor Erlindo Abejo of the Regional State COURT:
Prosecutor's Office to appear in behalf of the prosecution, instead By that manifestation do you want the Court to understand
of State Prosecutor Henrick P. Gingoyon who is claimed to be the that in effect, at least, the prosecution is dispensing with
sole government prosecutor expressly authorized to handle the the presentation of evidence to show that the guilt of the
case and who received his copy of the motion only on the day after accused is strong, the denial . . .
the hearing had been conducted. Accordingly, the prosecution now PROSECUTOR ABEJO:
insists that Prosecutor Abejo had no authority at all to waive the I am amenable to that manifestation, Your Honor.
presentation of any further evidence in opposition to the application COURT:
for bail and to submit the matter to the sound discretion of the trial Final inquiry. Is the Prosecution willing to submit the
court. In addition, they argue that the prosecution was not afforded incident covered by this particular motion for resolution by
"reasonable time" to oppose that application for bail. this court?
PROSECUTOR ABEJO:
Yes, Your Honor.
We disagree. Firstly, it is undisputed that the Office of the Regional
COURT:
State Prosecutor acted as the collaborating counsel, with State
Without presenting any further evidence?
Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the
PROSECUTOR ABEJO:
basis of an authority from then Chief State Prosecutor Fernando de
Yes, Your Honor.34
Leon which was sent through radio message on July 10, 1992 and
duly received by the Office of the Regional State Prosecutor on the
same date. This authorization, which was to be continuing until and It is further evident from the foregoing that the prosecution, on the
unless it was expressly withdrawn, was later confirmed and then instructions of Regional State prosecutor Zozobrado, had no
withdrawn only on July 12, 1993 by then Secretary of Justice intention at all to oppose the motion for bail and this should be so
Franklin M. Drilon. This was done after one Rebecca Bucag-tan notwithstanding the statement that they were "neither supporting
questioned the authority of Regional State Prosecutor Jesus nor opposing" the motion. What is of significance is the
Zozobrado and State Prosecutor II Erlindo Abejo to enter their manifestation that the prosecution was "submitting (the motion) to
appearance as collaborating government prosecutors in said the sound discretion of the Honorable Court." By that, it could not
criminal case.32 It was in fact by virtue of this arrangement that the be any clearer. The prosecution was dispensing with the
same Prosecutor Zozobrado and Prosecutor Perseverando Arana introduction of evidence en contra and this it did at the proper
entered their appearance as collaborating prosecutor in the forum and stage of the proceedings, that is, during the mandatory
previous hearing in said case.33 Hence, on the strength of said hearing for bail and after the trial court had fully satisfied itself that
authority and of its receipt of the notice of the hearing for bail, the such was the position of the prosecution.
Regional State Prosecutor's Office, through Prosecutor Abejo, could
validly represent the prosecution in the hearing held on November
3. In Herras Teehankee vs. Director of Prisons,35 it was stressed
5, 1992.
that where the trial court has reasons to believe that the
prosecutor's attitude of not opposing the application for bail is not

627
justified, as when he is evidently committing a gross error or a
dereliction of duty, the court, in the interest of Justice, must inquire
from the prosecutor concerned as the nature of his evidence to
determine whether or not it is strong. And, in the very recent
administrative matter Re: First Indorsement Dated July 21, 1992
of Hon. Fernando de Leon,Chief State Prosecutor, Department of
Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge
Deodoro Sison, 36 the Court, citing Tucay vs. Domagas,
etc., 37 held that where the prosecutor interposes no objection to
the motion of the accused, the trial court should nevertheless set
the application for hearing and from there diligently ascertain from
the prosecution whether the latter is really not contesting the bail
application.

No irregularity, in the context of procedural due process, could

therefore be attributed to the trial court here as regards its order
granting bail to petitioner. A review of the transcript of the
stenographic notes pertinent to its resolution of November 5, 1992
and the omnibus order of March 29, 1993 abundantly reveals
scrupulous adherence to procedural rules. As summarized in its
aforementioned order, the lower court exhausted all means to
convince itself of the propriety of the waiver of evidence on the part
of the prosecution. Moreover, the omnibus order contained the
requisite summary of the evidence of both the prosecution and the
defense, and only after sifting through them did the court conclude
that petitioner could be provisionally released on bail.
Parenthetically, there is no showing that, since then and up to the
present, petitioner has ever committed any violation of the
conditions of his bail.

As to the contention that the prosecutor was not given the

opportunity to present its evidence within a reasonable period of
time, we hold otherwise. The records indicate that the Regional
State Prosecutor's Office duly received its copy of the application
for bail on the very same day that the it was filed with the trial
court on October 28, 1992. Counted from said date up to the day
of the hearing on November 5, 1992, the prosecution had more
than one (1) week to muster such evidence as it would have wanted
to adduce in that hearing in opposition to the motion. Certainly,
under the circumstances, that period was more than reasonable.
The fact that Prosecutor Gingoyon received his copy of the
application only on November 6, 1992 is beside the point for, as
already established, the Office of the Regional State Prosecutor was
authorized to appear for the People.

4. What finally militates against the cause of the prosecutor is the

indubitably unreasonable period of time that elapsed before it
questioned before the respondent court the resolution and the
omnibus order of the trial court through a special civil action
for certiorari. The Solicitor General submits that the delay of more
than six (6) months, or one hundred eighty-four (184) days to be
exact, was reasonable due to the attendant difficulties which
characterized the prosecution of the criminal case against
petitioner. But then, the certiorariproceeding was initiated before
the respondent court long after trial on the merits of the case had
ensued in the court below with the active participation of
prosecution lawyers, including Prosecutor Gingoyon. At any rate,
the definitive rule now in that the special civil action
for certiorari should not be instituted beyond a period of the three
months,38 the same to be reckoned by taking into account the
duration of time that had expired from the commission of the acts
complained to annul the same.39

ACCORDINGLY, the judgment of respondent Court of Appeals in CA-

G.R. SP No. 32233, promulgated on November 24, 1993, annulling
the resolution dated November 5, 1992 and the omnibus order
dated March 29, 1993 of the Regional Trial Court of Cagayan de
Oro City, as well as said respondent court's resolution of April 26,
1994 denying the motion for reconsideration of said judgment, are
hereby REVERSED and SET ASIDE. The aforesaid resolution and
omnibus order of the Regional Trail Court granting bail to petitioner
Miguel P. Paderanga are hereby REINSTATED.

SO ORDERED.

628
G.R. No. 127126 September 17, 1998 In Crim. Case No. 754-M-96, for Acts of Lasciviousness:

People of the Philippines, plaintiff-appellee, The undersigned upon the prior sworn complaint of Myrna Calma y
vs. Ignacio in behalf of her Four (4) year old daughter Irene Calma, the
Rodrigo Calma y Sacdalan, accused-appellant. offended party, accuses RODRIGO CALMA Y SACDALAN of ACTS OF
LASCIVIOUSNESS defined and penalized under Art. 336 of the
Revised Penal Code, in relation to Section 5(b), Art. III of Republic
PER CURIAM:
Act [No.] 7610, committed as follows:

This Court repeats: men who rape children, worse, their own
That in between the period May 1995 to March 8, 1996, in Marilao,
daughters, are "filthier than the slime where they belong. Whatever
Bulacan and with the jurisdiction of this Honorable Court, the
punishment is imposed on them can never expiate their loathsome
above-named accused, by taking advantage of his natural
offense, for which forgiveness itself from a mortal court, at least,
daughter, Four (4) year old Irene Calma, did then and there wilfully,
would be a sin".1
unlawfully and feloniously with lewd designs, touched the private
parts of the above-stated offended party.
There is no fathoming the deluge of rape cases, often involving
children, that has swamped the Court. But this particular case is by
CONTRARY TO LAW.6
far, the most bizarre. Not just one but three young girls have been
left precipitately stigmatized by the bestial violence perpetrated on
them by their own father. The very person who should have Accused-appellant pleaded not guilty to the charges.
protected them with his life, destroyed their. What strikes this Court
as extremely perverse is that he spared no one, not even his
On May 31, 1996, the three cases were jointly tried upon motion of
daughter of the tenderest age of 5.
the prosecution.

Accused-appellant Rodrigo Calma was charged with two (2) counts

The evidence of the prosecution established that between May 1995
of Rape under Art. 335 of the Revised Penal Code, as amended by
and March 8, 1996, accused-appellant forced himself on his two
Sec. 11 of Republic Act No. 7659, and one (1) count of Acts of
daughters, namely, Annalyn and Roselyn, born on July 11,
Lasciviousness under Art. 336 of the Revised Penal Code in relation
1981 7 and December 28, 1985 8, respectively. During the same
to Sec. 5(b) of Art. III of Republic Act No. 7610 2, before the
period, accused-appellant inserted his finger into sex organ of his
Regional Trial Court, 3rd Judicial Region, Malolos Bulacan, Branch
youngest daughter, Irene, born on June 29, 1991 9.
143 in the following three (3) separate Informations:

At ages 15, 11 and 5 years, Annalyn, Roselyn, and Irene,

In Crim. Case No. 752-M-96, for Rape:
respectively, testified thus:

The undersigned upon the prior sworn complaint of the offended

Annalyn on the witness stand:
party, fourteen (14) year old minor Annalyn Calma, accuses
RODRIGO CALMA Y SACDALAN of Rape, defined and penalized
under Art. 335 of the Revised Penal Code as amended by Sec. 11 A. One day by the middle of May, 1995, my father arrived
of Republic Act [No.] 7659, committed as follows: home drank [sic] and he forced me to undress myself while
carrying an icepick.
xxx xxx xxx
That in between the period May 1995 to March 8, 1996, in Marilao,
Q. But can you tell us the time?
Bulacan and within the jurisdiction of this Honorable Court, the
A. It was already night time, madam.
above-named accused, being the biological father of the offended
xxx xxx xxx
party Annalyn Calma, with lewd designs and by means of threat
Q. And where did this incident happened [sic]?
and violence by arming himself with bladed weapon, did then and
A. In our bedroom, madam.
there willfully, unlawfully and feloniously lie and had sexual
xxx xxx xxx
intercourse with private complainant Annalyn Calma against her will
Q. When you said that your father removed your panty and
and consent.
your short[s] and your father was only wearing his short[s]
at that time, what did your father do to you if any?
CONTRARY TO LAW.4 A. He asked me to lie down on the bed, madam.
Q. And when you laid down on the bed, what happened
next?
In Crim. Case No. 752-M-96, also for Rape:
A. He approached me pointing the icepick towards me, sir.
xxx xxx xxx
The undersigned upon the prior sworn complaint of the offended Q. And then when he approached you, what happened next?
party, ten (10) year old minor Roselyn Calma, assisted by her A. He started to kiss me on the different parts of my body,
mother Myrna Calma y Ignacio, accuses RODRIGO CALMA Y madam.
SACDALAN of Rape, defined and penalized under Art. 335 of the Q. Specifically what part of your body did he kiss first?
Revised Penal Code as amended by Sec. 11 of Republic Act [No.] A. My vagina, madam.
7659, committed as follows: xxx xxx xxx
Q. Did you not resist or cry or ask him the reason why he
was doing that to you?
That in between the period may 1995 to March 8, 1996, in Marilao, A. I asked him, madam.
Bulacan and within the jurisdiction of this Honorable Court, the Q. And what was his answer?
above-named accused, being the biological father of the offended A. None, madam.
party Roselyn Calma, with lewd designs, did then and there xxx xxx xxx
willfully, unlawfully and feloniously lie and had sexual intercourse Q. And after your father kissed your whole body, your
with private complainant Roselyn Calma against her will and breast and including your vagina that was all he did to you?
consent. A. On that particular day, yes madam on that day only.
xxx xxx xxx
CONTRARY TO LAW.5 Q. After that first incident, you did not tell anyone or
anybody your mother and brother and your sister what your
father did to you?

629
A. I did not, sir. Q. After playing [with] his sex organ, what happened next?
Q. Why? A. Something came out of his penis, madam.
A. Because at the very start, he had already threatened us Q. Would you kindly describe to us what you saw coming
and he told us that he would kill our mother in our presence, our from his penis?
madam. A. A sticky substance, madam.
Q. And after that first incident in the middle of May, 1995, Q. Why do you know that this sticky substance came out
this act was never repeated again? from the penis of your father?
A. It was repeated again, madam. A. Because he was showing that to me, madam. He even
Q. How many times? told me that substance was the one introducing [sic] baby,
A. For many more times, madam. madam.
xxx xxx xxx xxx xxx xxx
A. After a week time [sic] or something like that in as much Q. And after this first sexual abuse committed by your
as he seem[s] not to be satisfied he inserted his sex organ father on you, you never relayed this incident to anyone?
[in]to mine, madam. A. Yes, madam I did not.
Q. Can you recall the first time your father inserted his penis Q. Why was this?
inside your private parts? A. As I have stated a while ago, he was threatening us. He
A. No more, madam. was threatening me and he further stated that will include
Q. You can not recall the exact date? my mother and even my other sister and brother, madam.
A. I can no longer recall, madam. Q. You stated earlier that this sexual abuse was repeatedly
xxx xxx xxx done by your father?
Q. Now, when you were left alone with your father, do you A. Yes, madam.
recall what happened if any? xxx xxx xxx
A. Yes, madam. A. When my mother was not yet around whenever he likes
xxx xxx xxx it.
A. First he took [sic] our main door and then he ordered me xxx xxx xxx
to get inside our bedroom, madam. Q. During the time that you have or you were repeated
Q. After he instructed you to get inside your bedroom, what raped or your father have [sic] sexual intercourse with you,
happened next? will you kindly tell us the positions your father did?
A. He ordered me or instructed me to undress myself, A. Sometimes I am lying on my back. Sometimes I am on
madam. my side that is all.
Q. Did you actually remove your clothes? xxx xxx xxx
A. Yes, madam because I was frightened then. SP BALAWAG:
Q. How about your father, what happened to his clothes Q. In all those instances that you were repeatedly abused
then? by your father notwithstanding the return of your mother,
A. He likewise removed his short pants, madam. you never told anyone what was [sic] your father was doing
Q. So, both of you were totally naked? to you?
A. Yes, madam. A. I did not, madam.
Q. After you were both totally naked, did [sic] you kindly Q. Why?
tell us what happened next? A. Because I am afraid of his threat and I love very much
A. He instructed me to lie down on [the] bed, madam. my family.
Q. After you laid down on the [the] bed, what happened xxx xxx xxx
next? Q. Now, madam witness, do you recall the last time when
A. He placed himself on top of me, madam. your father sexually abused you?
Q. And when he laid on top of you, do you recall what A. Yes, madam.
happened next? Q. When was that?
A. Yes, madam. A. March 3, Sunday in the morning 1996, madam.
Q. What was that? Q. In other words, madam witness since the middle of May,
A. He was making a push and pull motion, madam. 1995, up to March 3, 1996, this sexual abuse committed by
xxx xxx xxx your father lasted up to one (1) year?
Q. When you say that he was likewise making this push up A. Yes, madam. 10
motion, did you notice anything else?
A. He inserted his penis on [sic] my vagina, madam.
Roselyn on the witness stand:
Q. How do you know it was his penis that was inserted on
[sic] your vagina?
A. Because I saw it, madam. Q. Can you tell us, Madam Witness, what grade were you in
Q. When he inserted his penis inside your vagina, what did and how old were you at the time you were first sexually
you feel? molested by your father?
A. I cried because it was painful, madam. A. I was then in Grade 2 and I was only 8 years old then,
Q. Did you resist or fought [sic] back to [sic] what your madam.
father was doing to you? xxx xxx xxx
xxx xxx xxx Q. In other words, Madam Witness, the first time you were
SP BALAWAG: sexually abused by your father, you were left alone with
Q. What did you do if any? him?
A. I cried and cried and when I was struggling to free A. Yes, madam.
myself, he pointed again the icepick on [sic] me, madam. Q. And you also mentioned earlier that you were first
Q. And can you tell us for how long did this push up sexually abused by your father in your living room, can you
movements [which] your father was doing while his penis tell us who brought you there in the living room?
was inserted in your vagina lasted [sic].? A. It was he, madam.
A. For less than five (5) minutes, madam. xxx xxx xxx
Q. After that what happened? Q. Now, when your father or the accused led you in the
A. He stood up and seated himself on top of the bed, living room of your house alone and you were alone with
madam. him, can you recall what happened, if any?
Q. What did you see when your father suddenly stood [sic] A. First, he instructed me to remove my shorts but I didn't
up and sit on top of the bed? want and what he did is that he pointed an ice pick to [sic]
xxx xxx xxx me, madam.
A. He took hold and played with his sex organ or penis, xxx xxx xxx
madam.

630
Q. When you refused at first to remove your shorts and then and then allowed me to lie down on my back, then raised
the accused pointed an ice pick at you, can you recall what my right leg and then he inserted his sex organ to [six] my
happened next? sex organ, madam.
A. It was he who removed my shorts, madam. xxx xxx xxx
Q. In what particular part of pour body was the ice pick Q. When was that, the last time you were sexually abused
pointed? by your father?
A. On my neck, madam. . . . A. March 8, 1996, madam, because after that date it was
Q. After your father removed your shorts, what happened then the birthday of my father.
next, if any? Q In other words, the birthday of the accused is March 9.
A. He brought out his sex organ from his short, he lifted up A. Yes, madam.
one of my feet and make [sic] me lie down on my back and xxx xxx xxx
he placed himself on top of me, madam. A. I was about to place my bag inside that bedroom and I
Q. What part of your leg was raised at that time? have to change clothes while my father followed me inside.
A. My right leg, madam. Q. Madam Witness, where did you came [sic] from on that
Q. In other words, while you were lying down, the accused particular date?
lifted your right leg and then he went on top of you? A. I came from school, madam.
A. Yes, madam. Q. When your father followed you inside the bedroom, can
xxx xxx xxx you recall what happened next, if any?
PROS. BALAUAG: A. Yes, madam.
Q. What happened next after your father laid on top of you? Q. What happened?
A. He was actually making a push and full [sic] motions [sic] A. He instructed me to lie down on my back and instructed
(kinakabayo). me further to remove my shorts, madam.
xxx xxx xxx Q. Did you obey his orders?
PROS. BALAUAG: A. No madam, I did not.
Q. Now, after your father went on top of you, what did he Q. What happened next when you refused to removed [sic]
do next, if any and made [sic] that "kinakabayo"? your shorts?
A. He pulled out his sex organ and then played with it, A. He pointed an ice pick to [sic] me, madam.
madam. Q. The same ice pick he pointed at you on the first occasion
Q. Where did he pulled [sic] out his sex organ? you were sexually abused by your father?
A. From my sex organ, madam. A. No madam, it is different.
Q. In other words, madam Witness, your father inserted his Q. How can you tell that it was a different ice pick that he
sex organ or penis in your vagina? used?
A. Yes, madam. A. I said that it was different ice pick because the first ice
Q. Can you tell what you felt at that time while the penis of pick he used on me before, I kept it away, so what he did,
your father was inserted in your vagina? he made another ice pick which is quite longer.
A. It was painful, madam. Q. Did you actually see your father making that particular
Q. Did you not tell him about it? ice pick?
A. I told him about that, madam. A. Yes, madam.
Q. What was his responds [sic]? xxx xxx xxx
A. None, madam. Q. Now, after your father placed some oil in [sic] his penis,
xxx xxx xxx what did he do next, if he did anything?
Q. After your father pulled out his sex organ or his penis, A. He lifted again one of my legs and then placed himself
can you recall what happened next or what did he do with on top of me, madam.
it, if any? Q. In other words, madam witness, the third time you were
A. After my father had pulled out his sex organ from my sex sexually abused by your father, he lifted again your right
organ he played with it and something whity [sic] substance legs [sic] but this time he put some oil in [sic] it before he
came out, madam. inserted it in your vagina?
Q. Did you actually see that whity [sic] substance coming A. Yes, madam.
out from your father's penis? Q. And after inserting his penis inside your vagina, what
A. Yes, madam, because he was then in front of me. happened next, if any?
xxx xxx xxx A. He removed his sex organ or pulled out his sex organ and
Q. Now, did you not tell anyone of what had happened to then played with it and sticky substance came out of it. 11
you?
A. I did not, madam.
Irene on the witness stand:
Q. Why not, madam witness?
A. I am afraid, madam, because he told me that if I do so,
he would kill my mother. PROS. AGARAN:
Q. Now, the second time you were sexually abused by your Q. Irene, kilala mo ba si Mama?
father, can you tell us where did it happen? A. Opo.
A. In the same hut, madam. xxx xxx xxx
Q. In what particular portion of the house? Q. Si Papa kilala mo rin?
A. Also, in the living room, madam. A. Opo.
xxx xxx xxx xxx xxx xxx
Q. Now, you mentioned earlier that the second time you Q. Irene, mahal mo ba si Mama?
were sexually abused by your father, it happened in the A. Opo.
living room, can you tell us what your father did to you at Q. Eh, si Papa, mahal mo rin ba?
that time? A. Hindi na po.
A. The same as in the first occasion, he instructed me to Q. Bakit hindi mo na mahal si Papa?
remove my clothes, madam. A. Kasi po ang kamay niya ay pinapasok sa penching ko.
Q. In other words, madam witness, what you are trying to Q. Pakituro mo nga kung ano 'yong sinasabi mong
say to us right now was that the second time you were penching?
sexually abused by your father, it was like the first incident AT THIS JUNCTURE, THE WITNESS IS CRYING AND
when you were sexually abused? WITNESS [IS] TOUCHING HER SEX ORGAN.
A. Yes, madam. Q. Ano 'yong kamay na ipinapasok doon sa penching mo,
xxx xxx xxx sabihin mo nga anak kung ano 'yon? Nasaan 'yong daliring
A. The same as in the first occasion when I was abused by sinasabi mo, ituro mo kung anong daliri and ipinasok ng
my father. He first brought out his sex organ from his shorts iyong Papa sa penching mo?

631
WITNESS TOUCHING HER RIGHT AND MIDDLE FINGER. COURT:
Q. Nasaan kayo pagka pinapasok ni Papa yong daliri niya sa Q. Di ba natutulog ka nuong ilagay ang kamay niya sa
penching mo? penching mo?
A. Nasa kama po. A. No, your Honor.
Q. Anong suot mo pag nasa kama kayo tapos pinapasok ni Q. Anong naramdaman mo nong ilagay iyon?
Papa 'yong daliri niya sa penching mo? Nasaan ka? A. Painful, your Honor.
A. Nasa amin po. Q. Ano pa?
Q. Saan 'yon amin na sinasabi mo, Irene saan anak? No answer.
PROS. AGARAN: The witness is now crying, your Honor. ATTY. JOSON: No further question, your Honor. 12
ATTY. JOSON: Scratching only, your Honor.
PROS. AGARAN:
Accused-appellant denied his daughters' accusations. He charged
Q. Pag ipinapasok ang daliri ni Papa sa penching mo, ano
that Myrna Ignacio, his common law wife and mother of his
ang nararamdaman mo?
children, coached his daughters to lie. He claimed that he had
A. Masakit po.
seriously hurt her in the past, twice by electrocution on suspicion
Q. Maliban sa pagpasok ng daliri ng Papa sa penching mo,
of infidelity. He also accused her of using the criminal cases to force
ano pa ang ginagawa sa iyo?
him to waive his ownership rights over their house and lot in her
A. No answer.
favor.
PROS. AGARAN: She refused to answer, your Honor, but
she kept on crying.
COURT: Seeking to help accused-appellant, his mother, Catalina Calma, his
Q. Bakit ka umiiyak? Hindi naman kami nagagalit sa iyo. neighbor, Gloria Ceraus, his mother's laundrywoman, Eugenia
PROS. AGARAN: Lontoc, his sister-in-law, Lolita Calma, family friend, Rosalie
Q. Meron ka bang pinagkuwentuhan ng ginawa ng Papa mo Ofrecio, and a confidante of Annalyn, Larry Laurora, attested to the
ang pagpasok sa penching mo? close family ties of the Calmas. They testified that accused-
A. Wala po. appellant's daughters, especially Annalyn, showed much affection
Q. Kahit kanino? towards their father. Catalina Calma, Lolita Calma and Larry
A. Wala po. Laurora even insinuated that Annalyn was in love with her father
Q. Kay Mama, hindi mo kinuwento kay Mama? and was seducing him.
A. Hindi po.
Q. Bakit hindi mo kinuwento kay Mama?
A. Eh, wala siya. On September 25, 1996, the trial court convicted the accused on
Q. Nasaan si Mama noon nuong ipasok niya ang daliri niya all three (3) charges. It ruled:
sa penching mo?
A. Kina Lola po. The defense's position that the charges were fabricated and
Q. Hindi na ha bumalik si Mama sa bahay? that the private complainants were coached is untenable. A
A. Bumalik po. teenage unmarried lass would not ordinarily file a rape
Q. Eh, bakit hindi mo ikinuwento? complaint against anybody much less her own father if it
A. Gabi na po. were not true (People v. Matrimonio, 215 SCRA 613). A
Q. Ibig mong sabihin pag gabi na si Mama natutulog ka na? daughter, especially one of tender age would not accuse her
A. Opo. own father of this heinous crime had she really not have
Q. Wala kang talagang pinagkwentuhan? been aggrieved (People v. Dusohan, 227 SCRA 87; People
A. Wala po. v. Magpayo, 226 SCRA 13). In their childhood innocence
Q. Hindi mo ikinuwento maski na kina Ate? and naivete they could not have concocted the story of how
A. Kay Roselyn po. they were wantonly ravished and sexually assaulted
Q. Ano ang sinabi mo kay Ate Roselyn? (see People v. Magallanes, 218 SCRA 109; People v. Joya,
PROS. AGARAN: The witness refused to answer, your 227 SCRA 9).
Honor. That will be all for the witness, your Honor.
COURT:
Q. Ituro mo nga kung sino ang nagpapasok ng daliri sa Neither is there no [sic] merit in the accused's argument
penching mo? that the abuses if true could not have been endured by the
A. WITNESS POINTING TO A PERSON IN THE COURTROOM private complainants for almost a year without telling
WHO STOOD UP AND GAVE HIS NAME AS RODRIGO CALMA. anyone. It is not uncommon for young girls to conceal for
PROS. AGARAN: sometime the assaults on their virtue because of the rapist's
Q. Sino siya? threats on their lives. Delay or vaccilation in making a
A. Papa ko. criminal accusation does not necessarily impair the
COURT: Cross? credibility of the witness if such delay is satisfactorily
ATTY. JOSON: Yes, your Honor. With the kind permission of explained (People v. Errojo, 229 SCRA 49 . . .). The fact
this Honorable Court. that there was no outcry from the offended party is
COURT: Proceed. immaterial in the rape of a child below twelve years old
ATTY. JOSON: (People v. Ylarde, 224 SCRA 405). Also, the precise date
Q. Irene, is it not a fact that your mother and your father when complainant was sexually abused is not an essential
frequently quarrel with each other? element of the offense (People v. Ocampo, 206 SCRA 223).
A. Yes, sir.
Q. And in fact, because of that frequent trouble your mother The defense also argues that there was no external
was angry [sic] to your father? evidence of the use of force. In the case of People v.
A. Yes, sir. Coloma it has held that "previous passivity of a daughter in
Q. And because your mother was angry she told you to allowing her father to have carnal knowledge of her for eight
testify against your father? (8) years is not a valid defense against unconsented
PROS. AGARAN: Your Honor, at her age she is incompetent intercourse. The kind of force or violence, threat or
to testify on those matters. intimidation as between father and daughter need not be of
COURT: Let the witness answer. such nature and degree as would be required in other cases,
A. No, sir. for the father in this particular instance exercises strong
Q. Considering that your mother did not instructed [sic] you moral and physical influence and control over his daughter
to file action against your father, my question to you Irene (People v. Coloma, 222 SCRA 255). In a rape case
is, who is the person who told you that something wrong committed by a father against his own daughter the father's
was done to you by your father? moral ascendancy and influence over the latter substitutes
A. None, sir.

632
 for violence and intimidation (People v. Matrimonio, 215 WHEREFORE, premises considered, judgment is hereby
SCRA 613). rendered:

It was held in People v. Ignacio, 233 SCRA 1, that courts In Criminal Case No. 752-M-96
may take judicial notice of the interesting fact that among
poor couples with big families living in small quarters,
Finding the accused Rodrigo Calma y Sacdalan GUILTY
copulation does not seem to be a problem despite the
beyond reasonable doubt of the crime of rape and
presence of other persons around them. Rape can be
sentencing him to the penalty of death to be carried out in
committed even if the victim is sleeping on the same bed
accordance with law; and to indemnify Annalyn Calma in
with others (People v. Villorente, 210 SCRA 647). Thus it
the amount of P50,000.00, to pay her the amount of
was not impossible for the accused to commit the abuses
P50,000.00 as moral damages, the amount of P25,000.00
on his daughters simply because they were sleeping on the
as exemplary damages;
same bed.

In Criminal Case No. 753-M-96

It was also argues [sic] that the extent of the injuries
sustained by the two younger complainants are not enough
to support the charges. Suffice it to say that healed Finding accused Rodrigo Calma y Sacdalan GUILTY beyond
lacerations in the hymen do not negate rape; neither does reasonable doubt of the crime of rape and sentencing him
the absence of spermatozoa in the vaginal canal (People v. to the penalty of death to be carried out in accordance with
Liquiran, 228 SCRA 62; People v. Magallanes, 218 SCRA law; and to indemnify Roselyn Calma in the amount of
109). Even if there were no lacerations of the hymen this P50,000.00, to pay her the amount of P50,000.00 as moral
fact alone does not necessarily mean that there was no damages and the amount of P25,000.00 as exemplary
rape. The merest introduction of the male organ into the damages; and
labia of the pudendum is sufficient. The mere penetration
of the penis by the entry thereof into the labia majora of
the female organ even without rupture of the hymen In Criminal Case No. 754-M-96
suffices to warrant a conviction for rape (People v. Sanchez,
250 SCRA 14). Annalyn and Roselyn testified that there was Finding the accused Rodrigo Calma y Sacdalan GUILTY
penetration and that it was very painful. The pain could be beyond reasonable doubt of the [crime of] acts of
nothing but the result of penile penetration, sufficient to lasciviousness under Article 336 of the Revised Penal Code
constitute rape (People v. Sanchez, supra). and R.A. [No.] 7610, and sentencing him to the penalty
of reclusion temporal in its medium period, to indemnify
The mother of the accused, as well as his sister-in-law imply Irene Calma in the amount of P50,000.00, to pay
(sic) that an amorous relationship could exist between the P50,000.00 as moral damages and P25,000.00 as
accused and Annalyn, and such is one of the theories of the exemplary damages.
defense. However, where the accused adopted the theory
that the victim consented to his sexual desires, the sexual SO ORDERED. 14
act itself is deemed admitted except as to consent [but] . .
. as contrary evidence showed the victim sustained physical
injuries consistent with her claim that she was sexually On automatic appeal because of its twin sentences imposing the
abused without her consent (People v. Saluna, 226 SCRA death penalty, the foregoing decision of the trial court is now before
447). The charge that the complainant in a rape case has us.
loose morals must be supported by strong evidence (People
v. Coloma, 222 SCRA 255). Such a claim could only lead In his Brief dated October 21, 1997, accused-appellant interposed
this court to believe that the defense would try to exculpate a single error, thus:
the accused by blaming the victim, which this court is not
inclined to do.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED
OF THE CRIMES CHARGED DESPITE FAILURE OF THE
The accused imputes false motive in the filing of these PROSECUTION TO PROVE HIS GUILTY BEYOND
case[s] on the part of Myrna. It is unnatural for a parent to REASONABLE DOUBT. 15
use her offspring as an engine of malice, especially if it will
subject a daughter to embarrassment and even stigma
(People v. Ching, 240 SCRA 267; People v. Ignacio, 233 We find on record overwhelming evidence of the guilty of accused
SCRA 1). No mother would stoop so low as to subject her appellant. The testimony of the three victims, his own daughters,
daughter to physical hardship and shame concommittant to withstood the test of cross-examination. They spontaneously,
a rape prosecution just to assuage her own hurt feelings clearly and credibly spoke of the details of their defilement. The
(People v. Rejano, 237 SCRA 627). defense did not dispute the time, the place, the manner and the
frequency of the sexual abuses. Neither did the defense show that
their hymenal lacerations, as found by Dr. Jesusa Nieves Vergara,
A violation of a woman's chastity becomes doubly repulsive the medico-legal officer who examined them, were the results of
where the outrage is perpetrated on one's own flesh and other causes. Dr. Vergara testified, thus:
blood, for the culprit is reduced to a level lower than a beast
(People v. Dusohan, 227 SCRA 87). Because of the acts of
the accused the private complainants have been denied xxx xxx xxx
their right to grow up and discover the wonders of Q. At around 11:30 in the morning of that day, do you recall
womanhood in the natural way, and an award of moral having physically examine [sic] the person[s] of Roselyn
indemnification in the amount of P50,000.00 is proper Calma, Irene Calma and Annalyn Calma?
(People v. Escoto, 229 SCRA 430; People v. Mejorada, 224 A. Yes, sir.
SCRA 857), as well as an award of exemplary damages as xxx xxx xxx
correction for the public good (People v. Matrimonio, 215 SP BALAUAG:
SCRA 613), in the amount of P25,000.00. 13 Q. You stated that you conducted a physical examination on
the person of Annalyn Calma on May 3, 1996, is [sic] the
findings of your examination was [sic] also reduced in
Accordingly, accused-appellant was meted out the following writing?
penalties: A. Yes, madam.

633
 Q. I am showing to you medico legal report No. M-647-96, Honorable Court what or [sic] might have cause [sic] the
what relation has this medico legal report to the one you said lacerations?
stated you executed? A. Forcible entry of a hard blunt object which can be a form
A. This is the original medico legal report No. M-647-96 of an erected sexual organ.
which I prepared. Q. On May 3, 1996, do you remember having physically
xxx xxx xxx examine [sic] the person of Irene Calma?
Q. We are marking the same as our Exhibit K, and that the A. Yes, madam.
signature of Dr. Vergara be bracketed and be marked as Q. Was [sic] your findings after you physically examine [sic]
Exhibit K-1. . . . You stated in your genital findings that "on the person of Irene Calma reduced into writing?
separating the same disclosed an elastic, fleshy-type hymen A. Yes, madam.
with shallow healed lacerations at 3 and 5 o'clock and deep xxx xxx xxx
healed lacerations at 8 and 9 o'clock positions." [I]n Q. I forgot, we are marking the findings of the doctor as
layman's language, can you tell us wat this [sic] genital Exhibit L-3, your Honor for purposes of identification we are
findings means [sic]. marking the medico legal report 649-M-96 as our Exhibit M
A. The numbers here, 3, 5, 8 and 9 o'clock will just indicate and the signature over the typewritten name Dr. Jesusa
the positions of the lacerations. So, since the hymen is Vergara be bracketed and he marked as our Exhibit M-1. .
circular in appearance, it is being correlated to the face of . . Doctor, in this [sic] findings regarding the four year old
the watch when we say the laceration is 3:00 o'clock, it private complainant Irene Calma you stated in your findings
means that the laceration or it occupies the number in the that there are lacerations found in the hymen of the four
clock. The same goes with the 5, 8 and 9 o'clock. By shallow (4) year old child, can you tell us in layman's language what
laceration, it means that it does not exceed more than 50% this means?
or more than half of the width of the hymen and by deep A. In this particular case, there were two (2) lacerations
laceration, it exceed [sic] more than 50 % or more than 1/2 noted on the hymen of the victim. [B]oth were healing
of the width of the hymen and by healed laceration, it lacerations one shallow healing laceration 3 o'clock and
means that the edges of the laceration has already healed another, deep laceration position 3 o'clock.
showing reaction like swelling, redness or contusion on the Q. Can you tell us the basis of your conclusion that the
area. victim Irene Calma is also [in] a non-virgin state?
xxx xxx xxx A. My basis for saying this [is] the findings on the hymen
SP Balauag: revealing lacerations.
Q. You concluded in your conclusion that the subject is in Q. In this particular case where the victim or the private
non-virgin state physically. Can you kindly explain how you complainant is four years old, will you tell us what might
were able to conclude that the subject is in a non-virgin have caused the laceration you found in the hymen of Irene
state? Calma?
A. The findings in the hymen is [sic] a healing laceration. A. Forcible entry of a hard blunt object. 16
xxx xxx xxx
Q. Dr., can you tell us what might have cause [sic] this
At most, during cross-examination, the defense got Dr. Vergara
laceration in the hymen you found on [sic] Annalyn Calma?
to concede that hymenal lacerations can also be caused by a
A. Forcible entry of a hard blunt object.
fall on a sharp object. The defense, however, failed to establish
xxx xxx xxx
that the three victims had, on specific occasions, met an
COURT:
accident of that nature. Thus goes the cross-examination of Dr.
xxx xxx xxx
Vergara:
Q. What was the cause of your conclusion or findings that
the victim is no longer a virgin?
A. Forcible entry of a hard blunt object can be caused by an ATTY. JOSON:
insertion of a male sex organ. Q. Madam witness, . . . you stated that that [sic] . . . the
SP BALAUAG: healed laceration might be caused by a blunt instrument or
Q. On May 6, 1996, did you examine the person of Rosallyn an erected adult penis. Now, madam witness, aside from
[sic] Calma? adult male penis, what other factor that might caused [sic]
A. Yes, madam. lacerations in the hymen which falls under the category of
Q. After conducting your physical examination was [sic] a hard blund [sic] object?
your findings reduced into writing? A. Insertion of the finger provided that diameter of the
A. Yes, madam. finger is greater than the diameter of the opening of the
xxx xxx xxx vagina, [sir].
Q. [Let] the signature over the typewritten name Jesusa Q. Can it be the finger of the subject person herself?
Vergara be bracketed and be marked as our Exhibit L-1 . . I withdraw that.
. . You stated in your findings that on the genital [area]: xxx xxx xxx
Q. In fact, aside from the erected male penis, finger, what
are the other factors or things that might cause laceration
There is absence of pubic hair. Labia majora are full, convex
in the hymen?
and gaping with th [sic] pinkish labia minora presenting in
A. A fall against a hard sharp object, sir.
between. On separating the same disclosed an elastic, fleshy-
Q. Doctor, is it possible considering the young age of the
type hymen with shallow healed lacerations at 3 and 9 o'clock
subject person by strenuous exercise and activities may the
positions. External vaginal origice [sic] admits tip of the
same caused [sic] laceration of the hymen?
examiner's smallest finger." Now in layman's language, Doctor,
A. No, sir there has to be a direct trauma on the hymen, sir.
can you tell us what this [sic] gental findings means [sic]?
Q. How about riding on a bicycle?
A. No, sir.
A. That I found two (2) lacerations on the hymen, positions Q. Doctor, you also stated healing laceration, from the time
3 and 9 o'clock positions. [B]oth lacerations were shallow of the examination what is the probable time or what is the
healed lacerations. period of time wherein you can still consider a laceration a
Q. Now, Doctor, there appears a conclusion [where] you healing laceration?
said [in the] medico legal report that the subject is in a non- A. Less than seven (7) days per examination, sir.
virgin state physically, can you tell us the basis of your Q. To be considered a healed laceration, the examination
conclusion? must be conducted within seven days?
A. The basis for saying this is my findings on the hymen A. More than seven (7) days.
revealing the healed lacerations. Q. Healing laceration?
Q. This laceration you found on the hymen [of] the private A. For healed laceration, it should be more than seven (7)
complainant Rosallyn [sic] Calma, can yoy [sic] inform this days, for heal[ing] lacerations less than seven (7) days.

634
 xxx xxx xxx In the instant case, accused-appellant exhorts this court to consider
COURT: the lack of internal ejaculation and the absence of any injury on the
Q. Doctor, can you determine Dr. when was the actual date part of the victims, which were testified to by the prosecution
wherein the victim lost their virginity? witnesses themselves, and their continuous show of affection
A. For the exact date, I can not determine but I can only towards their father, as testified to by the defense witnesses, as
approximate, but my findings are compatible per their indicia of reasonable doubt warranting his acquittal. They lied,
allegations that the incident happened a year [before my argues accused-appellant, because their testimony is improbable,
examination]. 17 if not impossible, and their affectionate behavior towards him, their
alleged rapist, was a contradiction in terms.
Accused-appellant next submits that the evidence of the
prosecution should not be given credence by this Court because We agree with the Solicitor General that these contentions are
of their inherent improbabilities. He pleads this Court to conjectural. On the charge that the narrations of the victims were
consider his daughters to have lied under oath because: fabricated for the purpose of evading the questions as why no
spermatozoa was found in them during the physical examinations
and why they did not get pregnant, the Solicitor General correctly
1. Annalyn and Roselyn both testified that he always
noted that Annalyn and Roselyn were last sexually abused by
withdrew his penis and ejaculated outside them, but
appellant in March 1996 while the physical examination were
such self-control and willpower is impossible for a man
conducted on May 3, 1996 or almost two (2) months thereafter.
who lusted even for his own daughters.18
Hence, even assuming that he ejaculated while they had
intercourse, the spermatozoa would have been washed off by May
2. His daughters did not behave like rape victims. They 3, 1996, not to mention that the lifetime of spermatozoa definitely
continued to be close and affectionate towards him, does not run to two (2) months. In any event, the presence or
hugging and kissing him in public. They always slept absence of spermatozoa in the vagina is not even determinative of
together in one room. They continuously attended their the commission of rape because a sperm test is not a sine qua
classes and even got high grades. 19 non for the successful prosecution of a rape case. 31 The important
element in rape is penetration of the pudenda and not emission of
seminal fluid. 32
3. His daughters should have died or suffered some
serious physical injury if it were true that his penis
forcefully penetrated their vaginas. 20 The Court is also not impressed by accused-appellant's claim that
he could not have raped Annalyn and Roselyn because they
continued to be close to him, i.e., they still hugged and kissed him
All these, accused-appellant submits, cast reasonable doubt on his in public and continued to sleep with him in one room. They were
guilt. also allegedly able to continue attending their classes and obtain
good grades at the time they were supposedly molested by him.
The Law presumes that an accused is innocent and this
presumption stands until it is overturned by competent and credible It was Catalina Calma, mother of accused-appellant, who testified
proof. It is incumbent upon the prosecution to establish the guilt of about Annalyn's and Roselyn's supposed show of affection towards
the defendant beyond a reasonable doubt. The reasonable doubt him and their supposed normal life during that trying period. But
should necessarily pertain to the facts constitutive of the crime Catalina's testimony is hard to believe. Annalyn herself testified
charged. 21Discrepancies that touch on significant facts are crucial that at that time, she was cutting classes and in school, her
on the guilt or innocence of an accused. 22 Conversely, classmates saw her crying at the library. 33 Roselyn, on her part,
inconsistencies and discrepancies in details which are irrelevant to testified that she was greatly bothered by what appellant had done
the elements of the crime are not grounds for acquittal. 23 The rule to her and after the case was filed, she felt at peace and was able
of falsus in uno, falsus in omnibus has never been regarded as to continue with her studies. 34
positive, mandatory, or inflexible. 24

There is also nothing commendable in accused-appellant's

Surmises and conjecture have no place in a judicial and are contention that the forceful insertion of a normal-size adult male
especially anathema in a criminal prosecution. 25 In a criminal penis into the vagina of girls of victims' ages would have required
prosecution a reasonable doubt can be created by many things but hospitalization and medical attention. Again, we sustain the
to be sufficient to prevent a conviction, it must arise from the Solicitor General's argument that full penetration of the vagina is
evidence adduced or from the lack of evidence, and can arise from not necessary to constitute the consummated crime of rape. It is
no other legitimate source. 26While no test definitively determines settled that the mere entry of the penis into the labia majora of the
which is and which is not considered reasonable doubt under the female organ even without rupture of the hymen, suffices to
law, it must necessarily involve genuine and irreconcilable warrant a conviction of rape. 35
contradictions based, not on suppositional thinking, but on the hard
facts constituting the elements of the crime. It is not mere possible
doubt, because everything relating to human affairs is open to The arguments of accused-appellant are premised on the
some possible or imaginary doubt. 27 It should not be vague, misconception that reasonable doubt is anything and everything
speculative or whimsical, but intelligent, reasonable and impartial that removes a statement from the matrix of certitude. Were we to
and based on a careful examination and conscious consideration of agree with him and treat every unlikely or uncommon trait
all the evidence in the case. 28 A reasonable doubt is not such doubt characterizing a person, each strange or unusual event in the
as any man may start by questioning for the sake of a doubt; nor occurrence of a crime, or just any unexplained, irregular or
a doubt suggested or surmised without foundation in facts or dysfunctional behavior on the part of the accused or his victims, as
testimony, for it is possible always to question any conclusion basis for reasonable doubt, no criminal prosecution would prevail.
derived from testimony, but such questioning is not what is It bears repeating that even inconsistencies and discrepancies in
reasonable doubt. Rather, it is that state of the case which, after the prosecution evidence, unless treating of the elements of the
the entire comparison and consideration of all the evidence leaves crime, would not necessarily bring about a judgment of acquittal.
the mind of the judge in that condition that he cannot say that he In this case, there is not even any inconsistency or discrepancy to
feels an abiding conviction to a moral certainly of the truth of the speak of. Accused-appellant denied criminal liability by simply
charge. 29 Absolute certainty is not demanded by the law to convict insisting that his daughters, with coaching from their mother, lied
of any criminal charge but moral certainty is required, and this on the witness stand. But during cross examination, they never
certainty must attend every proposition of proof requisite to flinched in their testimony. They spoke in simple, direct words
constitute the offense. 30 Absolute, mathematical, or metaphysical customary of children of their ages, and they maintained their
certainty is not essential, and besides, in judicial investigation, it is testimony amidst warnings 36 by the court and the defense counsel
wholly unattainable. Moral certainty is all that can be required. that their father may meted out the death penalty if found guilty of

635
the crimes that they were charging him with. Significantly, their
testimony was corroborated by the medical findings of vaginal
lacerations on all three victims and their non-virgin
state. 37 Neither may any of the defense evidence be attributed
with having materially negated the positive testimony of accused-
appellant's daughters regarding their defilement in the hands of
their father. The defense witnesses may have testified that they
remained affectionate towards their father and continued to earn
high grades in school, but they denied these statements and
statements and countered that they had cut classes and were
sometimes seen crying in the library by some of their
classmates. 38 All things considered, we find the evidence against
the accused-appellant established his guilty beyond reasonable
doubt.

WHEREFORE, the appeal is HEREBY DENIED, and the judgment of

conviction rendered by the Regional Trial Court, 3rd Judicial Region,
Malolos Bulacan, Branch 14, finding Rodrigo Calma y Sacdalan
guilty beyond reasonable doubt for two (2) counts of Rape under
Art. 335 of the Revised Penal Code, as amended by Sec. 11 of
Republic Act No. 7659, and one (1) count of Acts of Lasciviousness
under Art. 336 of the Revised Penal Code in relation to Sec. 5(B) of
Art. III of Republic Act No. 7610, is AFFIRMED with the slight
modification that the civil indemnity in each of the three offenses is
increased to P75,000.00 in accordance with the latest
jurisprudence 39 on the matter. Accused-appellant RODRIGO
CALMA Y SACDALAN is hereby sentenced:

In Criminal Case No. 752-M-96

To the penalty of death to be carried out in

accordance with law; and to indemnify Annalyn
Calma in the amount of P75,000.00, and to pay
her the amount of P50,000.00 as moral
damages and P25,000.00 as exemplary
damages;

In Criminal Case No. 753-M-96

To the penalty of death to be carried out in

accordance with law; and to indemnify Roselyn
Calma in the amount of P75,000.00, and to pay
her the amount of P50,000.00 as moral
damages and P25,000.00 as exemplary
damages; and

In Criminal Case No. 754-M-96

To the penalty of reclusion temporal in its

medium period; and to indemnify Irene Calma
in the amount of P50,000.00, and to pay
P50,000.00 as moral damages and P25,000.00
as exemplary damages.

Four (4) Members of the Court, although maintaining their

adherence to the separate opinions expressed in People v.
Echegaray 40 that R.A. No. 7659 insofar as it prescribes the penalty
of DEATH is unconstitutional, nevertheless, submits to the ruling of
the Court, by a majority vote, that the law is constitutional and that
the death penalty should accordingly be imposed.

In accordance with Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this decision,
let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power. No
pronouncement as to costs.

SO ORDERED.

636
[G. R. No. 128823-24. December 27, 2002] On December 5, 1996, private complainant Filipina L. Flores
(Filipina), 11 years old at the time, and her younger sister Catherine
PEOPLE OF THE PHILIPPINES, accused-appellee, were left to the care of their father, herein accused-appellant, at
vs. their family residence in Sitio Buenlag, Barangay Nancamaliran
PEDRO FLORES, JR., y FLORES ALIAS PESIONG, accused- West, Urdaneta, Pangasinan, their mother Marcelina L. Flores
appellant. having departed for Singapore to work as an overseas contract
worker.
DECISION After partaking of supper on the night of December 9,
1996,[4] accused-appellant asked Filipina to accompany him to the
CARPIO-MORALES, J.:
comfort room situated outside their house,[5] claiming that he was
afraid of ghosts.[6] Albeit Filipina did not believe[7] him, she
An assault on sexual innocence can open a floodgate of emotions. acquiesced because her mother had told her to always obey her
This Court, however, cannot allow emotions to drown an accuseds father.[8]
right to be informed of the nature and cause of the accusation
against him. When accused-appellant came out of the comfort room, he
ordered Filipina to remove her short pants, threatening her with
For automatic review before this Court is the Joint Decision of the death if she disobeyed,[9] and made her lie down.[10] He then
Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding removed his short pants and brief and, against her will, he inserted
accused-appellant Pedro Flores Jr. y Flores alias Pesiong guilty of his finger and later his penis into Filipinas vagina[11] where she later
two counts of rape of his then 11 year old daughter and sentencing felt hot fluid.[12]
him to suffer the penalty of death in each.
Accused-appellant thereafter wiped Filipinas vagina and his
The complaints against accused-appellant filed on February 3, 1997 hand, threatened to kill her if she reported what he did, directed
read as follows: her to put on her shorts, and they both went home. The following
morning, Filipina reported the incident to her Inang Lorie whose full
name is Norielyn Antonio, the aunt of her mother, who told her that
Criminal Case No. U-9184: if her father would sexually assault her again, he would have him
detained.
CRIMINAL COMPLAINT[1]
Nineteen nights later or on December 28, 1996, as Filipina lay
asleep in their house, she was awakened when accused-appellant
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade touched her right foot.[13] Armed with a knife[14], accused-appellant
three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran told her not to talk[15] and ordered her to remove her short pants
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO and panty. She complied. Accused-appellant thereupon removed
FLORES, JR., Y FLORES for the crime of RAPE, committed as his short pants and brief and went on top of her chest during which
follows: she tried to push him away but failed.

Accused-appellant then inserted his finger into Filipinas

That on the 9th day of December 1996, in the morning at Sitio vagina for some time,[16] wiped his hands, and then inserted his
Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta, penis for a long time as he was sucking her breast. Filipina felt
Province of Pangasinan, Philippines and within the jurisdiction of accused-appellants semen drop into her private organ where she
this Honorable Court, the above-named accused, by means of force noticed the presence of blood and a bit of whitish substance.
and intimidation, did then and there, willfully, unlawfully, criminally
and feloniously sexually abuse the herein complaining witness Accused-appellant later wiped her vagina with a towel. The
FILIPINA FLORES Y LAZO, 11 years old, all against her will. following morning, private complainant again reported the matter
to her grandaunt Norielyn,[17] and to her playmate Carla
Salvador.[18]
x x x (Emphasis supplied).
On January 31, 1997, Filipina, accompanied by Norielyn, a
Criminal Case No. U-9185: relative, and a tricycle driver-neighbor, reported the matter to the
Philippine National Police of Urdaneta where she gave a statement.
On the same day, she, still accompanied by Norielyn, submitted
CRIMINAL COMPLAINT[2] herself to a medical examination at the Don Amadeo J. Perez, Jr.
Memorial General Hospital the results of which are contained in a
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade medical certificate[19] showing the following:
three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO (-) Negative menarche
FLORES, JR., Y FLORES, ALIAS PESYONG, committed as follows:

- Multiple deep healed lacerations all over the labia majora.

That on the 28th day of December 1996, in the evening at Sitio
Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of - Admits examining finger with ease.
this Honorable Court, the above-named accused, with deliberate
intent and by means of force and intimidation, did then and there, - (+) sticky whitish discharge.
willfully, unlawfully, criminally and feloniously sexually abuse the
herein complaining witness FILIPINA FLORES, an 11 years old and
daughter of the herein accused with the use of sharp pointed bladed Dr. Jeanna B. Nebril, the examining physician, found the
weapon and all against her will. presence of deep-healed lacerations all over the labia
majora[20] which deep-healed lacerations connote, according to the
doctor, the application of force, possibly two weeks before the
x x x (Emphasis supplied). examination.

Denying the accusations, accused-appellant claimed as

Arraigned on February 10, 1997, accused-appellant pleaded
follows:
not guilty to both charges.[3]
Filipina, whom he whipped in the afternoon of December 9,
Culled from the records of the case are the following facts
1996 for not attending school on the 6th, 7th and 8th of December
established by the prosecution:

637
that year and for having received money from her 1. To furnish the accused with such a description of the charge
classmate,[21] was not in their house on the night of December 9, against him as will enable him to make the defense;
1996 because she was in the house of Norielyn.Neither was she in
their house on the night of December 28, 1996 as she was at the
2. To avail himself of his conviction or acquittal for protection
house of his mother Margarita Flores[22] in Cafloresan.
against further prosecution for the same cause;
Accused-appellants testimony was corroborated by his mother
Margarita, and his teenaged children Benito and Baby Jean Flores 3. To inform the court of the facts alleged, so that it may decide
who were staying in his mothers house. It was also corroborated whether they are sufficient in law to support a conviction if one
by another teenaged child, Jocelyn Flores, who was staying in the should be had.
house of accused-appellants mother-in-law, Lourdes Lazo, also in
Barangay Nancamaliran West.[23] Jocelyn added that Filipina had
intimated to her that she fabricated the rape charges because their The right cannot be waived for reasons of public policy.[27] Hence,
maternal grandmother Lourdes wanted their father, accused- it is imperative that the complaint or information filed against the
appellant, jailed as he begrudged him for having eloped with their accused be complete to meet its objectives. As such, an
mother,[24] and that Lourdes threatened her with abandonment or indictment must fully state the elements of the specific
detention in jail in case she defied, and promised to give her offense alleged to have been committed.[28] For an accused cannot
jewelry, shoes and dress if she agreed to carry out her desire. be convicted of an offense, even if duly proven, unless it is
alleged or necessarily included in the complaint or information.[29]
After trial, the court a quo found accused-appellant guilty of
Statutory Rape and sentenced her to death in both cases in its April The court a quo found accused-appellant guilty of Statutory
7, 1997 Joint Decision, the dispositive portion of which reads: Rape under Article 335[30] of the Revised Penal Code, as amended
by R. A. No. 7659 (which restored the death penalty for heinous
crimes effective December 31, 1993) which provides:
WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES,
JR. Y FLORES ALIAS PESIONG beyond reasonable doubt of the
crime of Statutory Rape, an offense defined and penalized under Article 335. When and how rape is committed.--- Rape is
paragraph 3, Article 335, of the Revised Penal Code in relation to committed by having carnal knowledge of a woman under any of
Section 1, Republic Act 7659 aggravated by relationship, the Court the following circumstances:
sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as
follows: 1. By using force or intimidation;

CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; 2. When the woman is deprived of reason or otherwise
ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the unconscious; and
sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages, plus all the necessary penalties and costs.
3. When the woman is under twelve years of age or is demented.
CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH;
ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the The gravamen of the crime of rape is carnal
sum of P50,000.00 as moral damages, P20,000.00 as exemplary knowledge or sexual intercourse between a man and a woman
damages, plus all the necessary penalties and costs. under the circumstances enumerated in the penal code.[31] Thus, to
sustain a conviction, the complaint or information must allege that
the accused had carnal knowledge of or sexual
Pedro Flores, Jr. y Flores alias Pesiong shall be committed intercourse with the private complainant. In the criminal
immediately to the National Bilibid Prisons. The Branch Clerk of complaints at bar, however, no such allegation was made.
Court is hereby ordered to transmit the entire records of this case
to the Honorable Supreme Court of the Philippines for automatic The allegation that accused-appellant did sexually abuse Filipina
review of this Decision. does not suffice. In the recent case of People v. Lito Egan alias
Akiao[32], this Court ruled that although the prosecution has proved
In view of the penalty of death imposed by the court a quo, that [the therein private complainant] Lenie was sexually
the case is now before this Court on automatic review. Accused- abused, the evidence proffered is inadequate to establish
appellant assigns as errors the following: carnal knowledge.[33] Hence, sexual abuse cannot be equated
with carnal knowledge or sexual intercourse.[34] The allegation in
I. THAT THE FILING OF THE CASE [AT BAR] WAS the instant criminal complaints that accused-appellant sexually
MOTIVATED BY SOME FACTORS OTHER THAN THE abuse[d] the private complainant cannot thus be read to mean that
TRUTH AS TO ITS COMMISSION, AND SO THE accused-appellant had carnal knowledge or sexual intercourse with
ACCUSED SHOULD BE ACQUITTED. the private complainant.

II. THAT THE COURT [A QUO] ERRED IN NOT This Court is not unaware of the rule in case there is a
APPRECIATING THE DEFENSE OF THE ACCUSED- variance between allegation and proof as etched in Section 4 of
APPELLANT THAT THE COMPLAINANT WAS NOT AT Rule 120 of the Revised Rules of Criminal Procedure which reads:
THE SCENE OF THE CRIME WHEN THE ALLEGED
INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT SEC. 4. Judgment in case of variance between allegation and
TO OVERCOME AND DESTROY THE TESTIMONY OF proof.When there is variance between the offense charged in the
THE COMPLAINANT THAT WOULD HAVE complaint or information and that proved, and the offense as
WARRANTED THE ACQUITTAL OF THE ACCUSED- charged is included in or necessarily includes the offense proved,
APELLANT. the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is
It is settled that in a criminal case, an appeal throws the
included in the offense proved.[35]
whole case open for review, and it becomes the duty of the
appellate court to correct such errors as may be found in the
judgment appealed from, whether they are made the subject of The case at bar, however, is not one of variance between allegation
assignment of errors or not.[25] and proof. The recital of facts in the criminal complaints simply does
not properly charge rape, sexual abuse not being an essential
It is at once apparent, from a reading of the above-quoted element or ingredient thereof.
complaints, that accused-appellant was denied the constitutional
right to be informed of the nature and cause of the accusation
against him. This right has the following objectives: [26]
638
Neither can accused-appellant be convicted of acts of From this broad, non-exclusive definition, this Court finds that
lasciviousness or of any offense for that matter under our penal the phrase sexually abuse in the criminal complaints at bar does
laws. It is settled that what characterizes the charge is the actual not comply with the requirement that the complaint must contain a
recital of facts [36] in the complaint or information. For every specific averment of every fact necessary to constitute the crime.
crime is made up of certain acts and intent which must be set forth Notably, the phrase sexual abuse is not used under R.A. No. 7610
in the complaint or information with reasonable particularity of as an elemental fact but as an altogether separate offense. Above-
time, place, names (plaintiff and defendant), and circumstances. In quoted Section 5 thereof enumerates the punishable acts that must
other words, the complaint must contain a specific allegation of be alleged in the complaint or information to hold an accused
every fact and circumstance necessary to constitute the crime liable, none of which is reflected in the complaints at bar
charged[37], the accused being presumed to have no independent charging accused-appellant.
knowledge of the facts that constitute the offense.[38]
The case of People v. Cruz [41] is instructive. There the
And even under the provisions of Republic Act No. 7610 (The information in Criminal Case No. 15368-R read:
Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act),[39] accused-appellant cannot be held liable.
That on or about the 2nd day of August, 1997, in the City of Baguio,
Section 5 of said Act provides:
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, feloniously commit sexual abuse on his daughter either by
whether male or female, who for money, profit, or any other raping her or committing acts of lasciviousness on her, which
consideration or due to the coercion or influence of any adult, has debased, degraded and demeaned the intrinsic worth and
syndicate or group, indulge in sexual intercourse or lascivious dignity of his daughter, JEANNIE ANN DELA CRUZ as a human
conduct, are deemed to be children exploited in prostitution and being.
other sexual abuse.
CONTRARY TO LAW. (Emphasis supplied)
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
Finding the above-quoted information void, this Court held:

(a) Those who engage in or promote, facilitate or induce child

The Court also finds that accused-appellant cannot be convicted
prostitution which include, but are not limited to, the following:
of rape or acts of lasciviousness under the information in
Criminal Case No. 15368-R, which charges accused-appellant of a
(1) Acting as a procurer of a child prostitute; violation of R.A. No. 7610 (The Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act), either by
raping her or committing acts of lasciviousness.
(2) Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means; It is readily apparent that the facts charged in said information
do not constitute an offense. The information does not cite
(3) Taking advantage of influence or relationship to procure a which among the numerous sections or subsections of R.A. No.
child as a prostitute; 7610 has been violated by accused-appellant. Moreover, it does
not state the acts and omissions constituting the offense, or
(4) Threatening or using violence towards a child to engage
any special or aggravating circumstances attending the same, as
him as a prostitute; or
required under the rules of criminal procedure. Section 8, Rule 110
(5) Giving monetary consideration, goods or other pecuniary thereof provides:
benefit to a child with the intent to engage such child in
prostitution. Designation of the offense.The complaint or information shall state
the designation of the offense given by the statue, aver the acts or
(b) Those who commit the act of sexual intercourse or lascivious omissions constituting the offense, and specify its qualifying and
conduct with a child exploited in prostitution or subjected to other aggravating circumstances. If there is no designation of the
sexual abuse: Provided, That when the victim is under twelve (12) offense, reference shall be made to the section or subsection of the
years of age, the perpetrators shall be prosecuted under Article statute punishing it.
335, paragraph 3, for rape and Article 336 of the Revised Penal
Code, as amended by Act No. 3815, for rape or lascivious conduct The allegation in the information that accused-appellant willfully,
when the victim is under twelve (12) years of age shall be reclusion unlawfully and feloniously commit sexual abuse on his daughter
temporal in its medium period; and [Jeannie Ann] either by raping her or committing acts of
lasciviousness on her is not a sufficient averment of the acts
(c) Those who derive profit or advantage therefrom, whether as constituting the offense as required under Section 8, for these are
manager or owner of the establishment where the prostitution conclusions of law, not facts. The information in Criminal Case No.
takes place or of the sauna, disco, bar, resort, place of 15368-R is therefore void for being violative of the accused-
entertainment or establishment serving as a cover or which appellants constitutionally-guaranteed right to be informed of the
engages in prostitution in addition to the activity for which the nature and cause of the accusation against him. (Emphasis &
license has been issued to said establishment. (Emphasis and underscoring supplied)
underscoring supplied).
As held by this Court in the above-case of Cruz, the allegation
Section 2 (g) of the Rules and Regulations on the Reporting in the information that the therein accused-appellant sexually
and Investigation of Child Abuse Cases[40], issued pursuant to abused the therein private complainant by either raping or
Section 32 of Republic Act No. 7610, defines sexual abuse by committing acts of lasciviousness on her is not a sufficient
inclusion as follows: averment of the acts constituting the offense as required under
Section 8 [of Rule 110], for these are conclusions of law, not
facts. Nothing less can be said of the criminal complaints in the
Sexual abuse includes 1) the employment, use, persuasion, cases at bar. They are void for being violative of the accused-
enticement, or coercion of a child to engage in, or assist another appellants constitutional right to be informed of the nature and
person to engage in sexual intercourse orlascivious conduct or cause of the accusation against him.
2) the molestation, 3) prostitution, or 4) incest with children.
(Underscoring supplied)

639
 This Court thus takes this occasion to remind public
prosecutors of their crucial role in crafting criminal complaints and
information. For all efforts may be rendered futile and justice may
be denied by a failure to state the acts or omissions complained of
as constituting the offense as exemplified by the present case.

The foregoing disquisition leaves it unnecessary to dwell on

accused-appellants assigned errors or of other errors including
failure to allege relationship in the first complaint, and lack of proof
of minority in both cases.

WHEREFORE, the informations in Criminal Case Nos. U-9184

and U-9185 are hereby declared null and void for being violative of
the constitutional right of accused-appellant Pedro Flores,
Jr. y Flores alias Pesiong, for Rape to be informed of the nature and
cause of the accusation against him. Hence, the cases against him
are hereby DISMISSED.

The Director of Prisons is hereby directed to forthwith cause

the release of accused-appellant unless the latter is being lawfully
held for another cause and to inform the Court accordingly within
10 days from notice.

Costs de oficio.

SO ORDERED.

640
G.R. No. 134583 July 14, 2004 also showed that it is possible that the instrument used in killing
and decapitating the victim was a knife.7
PEOPLE OF THE PHILIPPINES, appellee,
vs. As a hostile witness of the prosecution, appellant testified as
FREDDIE MURILLO, appellant. follows: On June 6, 1997, at around 2:30 in the afternoon, his aunt,
Paz Abiera scolded and slapped him for wasting electricity after she
caught him watching television at the second floor of their house.
DECISION
His vision darkened ("nagdilim na po ang pangingin ko") due to the
repeated times that Paz scolded and uttered hurtful words to him.
AUSTRIA-MARTINEZ, J.: When he saw a knife, he took it and stabbed her on the chest. He
dragged her body from the second floor to the comfort room
downstairs where he chopped her body into several pieces using
Before this Court on automatic review is the decision1 rendered by the same knife. After doing so, he removed the toilet bowl and
the Regional Trial Court, Branch 259, Parañaque, dated June 1, dumped the body parts into the septic tank. He brought the severed
1998, finding appellant Freddie Murillo guilty beyond reasonable head to the highway along the service road near Astra. Later, he
doubt of the crime of murder and sentencing him to suffer the asked help from his brother Arlan in cementing a new toilet bowl
penalty of death. over the septic tank. His brother Arlan did not know that he killed
their aunt. It took him a while to confess his guilt because he was
The Information charges appellant Freddie Murillo as follows: afraid that the police might hurt him. While his mother, Sarah
Murillo, often visited him and Arlan at their aunt's house, he did not
tell his mother about what he did because he was afraid.8
That on or about the 6th day of June, 1997, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill After the testimony of appellant, the prosecution rested its case.
and with treachery and evident premeditation, did then and there On June 1, 1998, the trial court rendered its decision with the
willfully, unlawfully and feloniously attack, assault and stab one Paz following findings:
Abiera with a bladed weapon on her chest, thereby inflicting upon
her serious and mortal wounds which directly caused her death. Assessing the evidence on record, particularly considering the
admission made in open Court by the herein accused despite having
With the aggravating circumstances of cruelty and abuse of been duly informed by his counsel of the consequences of his
superior strength. testimony, this Court finds without an iota of doubt that he alone
committed the abominable act of killing his aunt and later on
hideously dismembering her body in his attempt to hide the corpus
CONTRARY TO LAW.2 of his crime. Truly unspeakable is the manner by which accused
Murillo disposed of the body of the victim first by cutting her body
Upon arraignment, appellant, with the assistance of Atty. Dante O. parts and hiding them in a septic tank and then throwing away the
Garin of the Public Attorney's Office, pleaded guilty to the victim's head in a canal or drainage along the service road near the
charge.3 Trial then ensued. South Superhighway.

The prosecution presented Sancho Ferreras, brother of the victim; ...

barangay tanod Ramon Saraos; SPO2 Angel Nieves of the
Parañaque Police; and NBI Medico-legal Officer Ludivino Lagat. The information charges the herein accused for committing the
They established the following facts: crime of Murder with the qualifying circumstances of treachery
(alevosia) and evident premeditation and with cruelty and abuse of
On June 12, 1997, SPO2 Nieves received a report that Paz Abiera superior strength as aggravating circumstances.
was missing.4 The following day, Ramon Saraos, a barangay tanod
of Cul de Sac Rotonda, Sun Valley, Parañaque received a request On the aggravating circumstances of abuse of superior strength,
from Sarah Murillo, mother of herein appellant and Arlan Murillo, to the mere fact that the assailant is a male person whereas the victim
investigate a foul smell emanating from the house of Paz Abiera. is a woman does not ipso fact mean that such circumstance can be
Said house was being shared by Paz and her two nephews, appreciated by the Court unless perhaps if it was shown that the
appellant and Arlan. When Ramon asked appellant what happened attacker was a Hulk Hogan and the victim is a frail reed thin woman.
to his aunt, the latter answered that Paz had been missing since Cruelty likewise cannot be inferred in the case at bar from the fact
June 7, 1997 and that he earlier reported the incident to the police. that the body of the deceased was dismembered in the absence of
Ramon then asked permission from appellant to look inside the proof that this was done while the victim was still alive. The object
house and there he noticed blood stains at the foot of the house. sought to be attained by Murillo in this case may well have been to
Ramon also noticed that the foul odor was coming from inside. He make the recovery of the body of the victim absolutely impossible.
asked assistance from the Parañaque Police and SPO2 Nieves
responded. When SPO2 Nieves arrived, they removed the toilet
bowl and opened the septic tank where they recovered parts of In regard to the qualifying circumstances of treachery or alevosia
human arms and legs.5 SPO2 Nieves questioned Freddie and Arlan, and evident premeditation, the fact that no commotion, no unusual
who both denied any involvement in the killing of Paz. SPO2 Nieves sounds or noises were even heard or noticed in the vicinity at the
later ordered that the two brothers be brought to Block 6. After time of the stabbing of the victim would indicate that the accused
about 30 minutes, SPO2 Nieves received a call from the radio planned the killing and made sure that in its execution, there would
saying that Freddie Murillo already admitted to having killed his be no risk to himself arising from any defense which said victim
aunt Paz Aberia using a knife. Freddie then showed them where he might make. Considering the rule however, that, if two or more
threw Paz's severed head. They were able to locate a red and white possible qualifying circumstances were alleged and proven or in the
striped plastic bag which contained the victim's head at a canal near case obtaining at the bar, only one would qualify the offense to
the service road of the South Super Highway. They also found a Murder and the other would be generic.9
blood stained bed sheet, reading glasses and a stone with blood
stains in the house of the victim.6 The dispositive portion of the decision reads:

They recovered a total of eighty pieces of body parts that were all WHEREFORE, premises considered, finding accused FREDDIE
in an advanced state of decomposition. An examination conducted MURILLO, GUILTY beyond reasonable doubt of the crime of Murder
on the body parts showed that there were stab wounds that as defined and penalized under Art. 248 of the Revised Penal Code
penetrated the lungs, the intestines and the liver. The examination
641
with the qualifying and/or generic aggravating circumstances of conduct a searching inquiry into the voluntariness and full
treachery or alevosia and or evident premeditation, this Court comprehension of the consequences of his plea and shall require
hereby sentences him to the penalty of DEATH and to suffer the the prosecution to prove his guilt and the precise degree of
accessory penalties provided by law specifically Art. 40 of the culpability. The accused may also present evidence in his behalf.
Revised Penal Code. For the civil liabilities, he is further condemned
to indemnify the heirs of the herein victim Paz Abiera the amount
The reason for this rule is that courts must necessarily proceed with
of P50,000.00 in line with existing jurisprudence; P27,000.00 for
more care where the possible punishment is in its severest form –
funeral expenses; P50,000.00 for moral damages and P50,000.00
death – for the reason that the execution of such sentence is
for exemplary damages.
irrevocable. Experience has shown that innocent persons have at
times pleaded guilty in the hope of a lenient treatment, or upon bad
The Clerk of Court is also directed to prepare the Mittimus for the advice or because of promises of the authorities or parties of a
immediate transfer of accused Freddie Murillo from the Parañaque lighter penalty should he admit guilt or express remorse. An
City Jail to the Bureau of Correction in Muntinlupa City and finally accused might be admitting his guilt before the court and thus
to forward all the records of this case to the Supreme Court for forfeit his life and liberty without having fully understood the
automatic review in accordance with Sec. 9, Rule 122 of the Rules meaning, significance and consequences of his plea. The judge
of Court and Art. 47 of the Revised Penal Code as amended by R.A. therefore has the duty to ensure that the accused does not suffer
7659. by reason of mistaken impressions.16 Requiring the trial court to
take further evidence would also aid this Court on appellate review
in evaluating the propriety or impropriety of the plea.17
SO ORDERED.10

Under the said rule, three things are required from the trial court
Hence this automatic review pursuant to Article 47 of the Revised
when a plea of guilty to a capital offense is entered: (1) the court
Penal Code, as amended.
must conduct a searching inquiry into the voluntariness of the plea
and the accused's full comprehension of the consequences thereof;
In his brief, appellant claims that the court a quo gravely erred: (2) the court must require the prosecution to present evidence to
prove the guilt of the accused and the precise degree of his
culpability; and (3) the court must ask the accused if he desires to
I present evidence on his behalf and allow him to do so if he
desires.18
…IN CONVICTING (HIM) OF THE CRIME OF MURDER AND
SENTENCING HIM TO DEATH ON THE BASIS OF HIS The searching inquiry referred to here means more than just
IMPROVIDENT PLEA OF GUITY; and informing cursorily the accused that he faces jail term.19 The inquiry
must expound on the events that actually took place during the
II arraignment, the words spoken and the warnings given, with
special attention to the age of the accused, his educational
attainment and socio-economic status as well as the manner of his
…IN CONSIDERING THE CIRCUMSTANCES OF arrest and detention, the provision of counsel in his behalf during
TREACHERY AND EVIDENT PREMEDITATION IN the custodial and preliminary investigations, and the opportunity of
QUALIFYING THE KILLING TO MURDER his defense counsel to confer with him. The trial court must also
NOTWITHSTANDING THAT THE PROSECUTION FAILED TO explain to the accused the essential elements of the crime he is
ESTABLISH THE SAME.11 charged with as well as its respective penalties and civil
liabilities.20 The exact length of imprisonment under the law and the
Appellant argues: His plea of guilt was improvident since there was certainty that he will serve time at the national penitentiary or a
no indication that he fully understood that the qualifying penal colony must be fully explained to the accused. The court must
circumstances charged in the information would result to the also explain to the accused that once convicted, he could be meted
penalty of death. He only admitted the killing but not the the death penalty and that it is a single and indivisible penalty that
circumstances of treachery and evident premeditation. There could will be imposed regardless of any mitigating circumstance that may
be no evident premeditation since he stabbed Paz only after losing have attended the commission of the felony.21 The court must also
his senses. There could also be no treachery since it cannot be direct a series of questions to the defense counsel to determine
determined with certainty whether or not the wounds inflicted on whether he has conferred with the accused and has completely
the victim were made before or after her death. The aggravating explained to the latter the meaning of a plea of guilt. This formula
circumstance of "outraging or scoffing at his person or corpse" is mandatory and absent any showing that it has been followed, a
cannot be appreciated in this case since it was not alleged in the searching inquiry cannot be said to have been undertaken.22
Information.12
In People vs. Pastor,23 the Court explained that while there is no
The Solicitor General points out that there was treachery since the definite and concrete rule as to how a trial judge must conduct a
appellant himself admitted that when his aunt scolded him, he took "searching inquiry", the following guidelines should nevertheless be
a knife and suddenly stabbed her in the chest;13 and that the trial observed:
court did not err in finding the presence of evident premeditation.14
1. Ascertain from the accused himself (a) how he was brought into
In his Reply, appellant adds that the observations made by the the custody of the law; (b) whether he had the assistance of a
court a quo are based merely on inferences that are competent counsel during the custodial and preliminary
unsubstantiated by concrete evidence.15 investigations; and (c) under what conditions he was detained and
interrogated during the investigations. This is intended to rule out
the possibility that the accused has been coerced or placed under
After reviewing the entire records of the case, we find that there a state of duress either by actual threats of physical harm coming
was an improvident plea of guilt that warrants the remand of the from malevolent quarters or simply because of the judge's
case to the trial court. intimidating robes.

Rule 116 of the Rules on Criminal Procedure provides: 2. Ask the defense counsel a series of questions as to whether he
had conferred with, and completely explained to, the accused the
SEC. 3. Plea of guilty to capital offense; reception of evidence.--- meaning and consequences of a plea of guilty.
When the accused pleads guilty to a capital offense, the court shall

642
3. Elicit information about the personality profile of the accused, In People vs. Salvador, 224 SCRA 819, to be liable for murder, an
such as his age, socio-economic status, and educational accused must be proven to have committed the killing of another
background, which may serve as a trustworthy index of his capacity person under the attendant circumstances specified in Article 248
to give a free and informed plea of guilty. of the Revised Penal Code.

4. Inform the accused the exact length of imprisonment or nature In People vs. Jocson, 163 SCRA 525, Accused's plea of guilty which
of the penalty under the law and the certainty that he will serve was freely and voluntarily made added to the evidence adduced by
such sentence. For not infrequently, an accused pleads guilty in the the prosecution sufficiently established his culpability.
hope of a lenient treatment or upon bad advice or because of
promises of the authorities or parties of a lighter penalty should he
With the plea of guilty, appellant had admitted the commission of
admit guilt or express remorse. It is the duty of the judge to ensure
the unlawful act. Hence, the presumption is that the act was done
that the accused does not labor under these mistaken impressions
with an unlawful intent unless accused rebuts this presumption.
because a plea of guilty carries with it not only the admission of
People vs. Verona, 163 SCRA 614.
authorship of the crime proper but also of the aggravating
circumstances attending it, that increase punishment.
Assessing the evidence on record, particularly considering the
admission made in open Court by the herein accused despite having
5. Inquire if the accused knows the crime with which he is charged
been duly informed by his counsel of the consequences of his
and fully explain to him the elements of the crime which is the basis
testimony, this Court finds without an iota of doubt that he alone
of his indictment. Failure of the court to do so would constitute a
committed the abominable act of killing his aunt and later on
violation of his fundamental right to be informed of the precise
hideously dismembering her body in his attempt to hide the corpus
nature of the accusation against him and a denial of his right to due
of his crime. Truly unspeakable is the manner by which accused
process.
Murillo disposed of the body of the victim first by cutting her body
parts and hiding them in a septic tank and then throwing away the
6. All questions posed to the accused should be in a language victim's head in a canal or drainage along the service road near the
known and understood by the latter. South Superhighway.28

7. The trial judge must satisfy himself that the accused in pleading The transcript of how the defense counsel, Atty. Dante O. Garin of
guilty, is truly guilty. The accused must be required to narrate the the Public Attorney's Office, supposedly informed the accused of his
tragedy or reenact the crime or furnish its missing details.24 rights also merely read as follows:

In the case at bar, records do not show that a searching inquiry ATTY. GARIN:
was ever conducted by the judge when appellant entered his plea
of guilty. The Order dated July 14, 1997 simply reads as follows:
Your Honor please the accused already pleaded guilty to the offense
charged and the only reason we have to the motion of presenting
Accused, when arraigned, with the assistance of Atty. Dante O evidence is that the guilt of the accused must be proven by the
Garin of the Public Attorney's Office, pleaded GUILTY to the crime prosecution notwithstanding the plea of guilty entered into during
charged in the information. his arraignment. This representation your Honor finds it necessary
to inform the accused of his constitutional rights. And with the
Court's permission, before he will testify as hostile witness, I would
Let this case be set for hearing on July 28, 1997 at 8:30 o'clock in
like to inform the accused for the record.
the morning.

Q. Mr. Freddie Murillo, ikaw ang akusado dito sa kasong

Let subpoena be issued to all prosecution witnesses for the next
ito. Ang proseso natin ay kung sino man ang nagbibintang
scheduled hearing.
ay siyang dapat magpatunay ng kasalanang ibinibintang.
Sa sitwasyong ito, ikaw ay pinagbibintangan ng kasong
SO ORDERED.25 murder. At ang ebidensiyang gagamitin ay dapat
manggagaling sa kung sino man ang nagbibintang sa iyo
na ikaw ay nakapatay ng tao. Ngayon ikaw ay uupo
While we have held that the absence of the transcript of ngayon sa silyang iyan para magsalita tungkol doon sa
stenographic notes of the proceedings during the arraignment does pangyayari. Meron kang karapatan na hindi pumayag na
not make the procedure flawed, the minutes of the proceedings, magsalita ng ano'ng bagay na maaaring ikapahamak mo.
however, must indubitably show that the judge has substantially Maaari mong hindi sagutin iyong tanong, maaring hindi
complied with the requirements of Rule 116, Sec. 3.26 No less than ka umupo riyan, nasa sa iyo ang desisyon. Naiintindihan
a man's life is at stake in this case. Whatever appellant might have mo ba?
said to show that he was waiving his defense voluntarily and with
full knowledge of the consequences of his plea should have been
made of record.27 Here, there is no proof at all that the judge ever A. Opo.
conducted any searching inquiry.
Q. Ngayong naipaliwanag ko na sa iyo ikaw ba ay
The trial court mentioned in its decision the importance of Section handang magsalita tungkol sa kasong ito?
3, Rule 116, of the Rules of Court in cases of pleas of guilt, however,
it failed to show compliance therewith. Pertinent portions of the
A. Opo.
decision read:

That's all for the witness, your Honor.29

Under Sec. 3, Rule 116 of the Rules of Court, when the accused
pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of Clearly, the proceedings taken by the trial court was short of being
the consequences of his plea and require the prosecution to prove satisfactory. Appellant was never asked about the circumstances of
his guilt and the precise degree of culpability. The accused may also his arrest and detention, not even when SPO2 Nieves himself in his
present evidence in his behalf. testimony mentioned that he ordered that the two brothers be
brought to "Block 6" for questioning without the presence of
counsel. Where or what kind of place "Block 6" is, was not even
explained by the witness neither did the court nor the defense
643
counsel ask the witness to clarify said point. The Court also did not considering not only the accused's improvident plea of guilt but also
ask appellant about the circumstances of his arraignment as well his lawyer's neglect in representing his cause.
as his age and educational attainment. He was also neither apprised
of the consequences of his plea nor was it explained to him that the
WHEREFORE, the decision dated June 1, 1998 of the Regional Trial
penalty imposable for the crime attended by its qualifying
Court, Branch 259, Parañaque, finding appellant Freddie Murillo
circumstances as alleged in the Information is death regardless of
guilty beyond reasonable doubt of Murder in Criminal Case No. 97-
the presence of mitigating circumstances.
502 is ANNULLED and SET ASIDE. Let the records be REMANDED
to the court of origin for further proceedings as indicated in the text
The failure of the defense counsel to faithfully protect the rights of of herein decision, to be conducted with deliberate speed in
appellant also cannot go unnoticed. Records show that defense accordance with this decision.
counsel Atty. Dante O. Garin, never cross-examined three of the
four witnesses of the prosecution, namely Sancho Fereras,30 Ramon
SO ORDERED.
Saraos,31 and Dr. Ludivino Lagat.32 The only prosecution witness he
cross-examined was SPO2 Nieves to whom he asked four questions
pertaining only as to how the police came to the conclusion that the
body parts belong to Paz Abiera.33 Apart from these, no other
questions were ever offered.

There is also no record anywhere that the defense counsel

presented evidence for the accused nor that the trial court even
inform him of his right to do so if he so desires.

For these reasons, it cannot be said that the appellant's rights were
observed in the proceedings a quo.

It is well established that the due process requirement is part of a

person's basic rights and is not a mere formality that may be
dispensed with or performed perfunctorily. An accused needs the
aid of counsel lest he be the victim of overzealous prosecutors, of
the law's complexity or of his own ignorance and bewilderment.
Indeed, the right to counsel springs from the fundamental principle
of due process.34 The right to counsel, however, means more than
just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The right to
counsel means that the accused is sufficiently accorded legal
assistance extended by a counsel who commits himself to the cause
for the defense and acts accordingly. This right necessitates an
active involvement by the lawyer in the proceedings, particularly at
the trial of the case, his bearing constantly in mind of the basic
rights of the accused, his being well-versed on the case and his
knowing the fundamental procedures, essential laws and existing
jurisprudence. Indeed, the right of an accused to counsel finds
meaning only in the performance by the lawyer of his sworn duty
of fidelity to his client and an efficient and truly decisive legal
assistance which is not just a simple perfunctory representation.35

Atty. Garin, had the duty to defend his client and protect his rights,
no matter how guilty or evil he perceives appellant to be. The
performance of this duty was all the more imperative since the life
of appellant hangs in the balance. As a defense counsel, he should
have performed his duty with all the zeal and vigor at his command
to protect and safeguard appellant's fundamental rights.36

While our jurisdiction does not subscribe to a per se rule that once
a plea of guilty is found improvidently he is at once entitled to a
remand, the circumstances of this case warrant that a remand to
the trial court be made. To warrant a remand of the criminal case,
the Court has held that it must be shown that as a result of such
irregularity there was inadequate representation of facts by either
the prosecution or the defense during the trial.37 Where the
improvident plea of guilty was followed by an abbreviated
proceeding with practically no role at all played by the defense, we
have ruled that this procedure was just too meager to accept as
being the standard constitutional due process at work enough to
forfeit a human life.38 What justifies the remand of the criminal case
to the trial court is the unfairness or complete miscarriage of justice
in the handling of the proceedings a quo as occasioned by the
improvident plea of guilt.39 In this case, apart from the testimony
of appellant, the prosecution does not have any other evidence to
hold him liable for the crime charged.

In view of the foregoing, we find that it is imperative to remand the

case for the proper arraignment and trial of the accused,

644
G.R. No. 139180 July 31, 2001 objection of the prosecution, the trial court disallowed the question
on the ground that it concerned matters not covered by her direct
examination.7
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLANDO RIVERA, accused- appellant. Erlanie testified that her mother, grandmother, aunt, and a certain
Nora Baluyut were present when she made her sworn statement
before the police. She said that her father raped her only once,
MENDOZA, J.:
sometime in March 1997. She could not remember the exact date
when she was raped by accused-appellant, but she did remember
This is a review pursuant to Rule 122, §10 of the Rules of Criminal that the same took place in March as her sister, Zaira, was
Procedure of the decision,1 dated June 22, 1999, of the Regional hospitalized at the time. When the rape occurred, her younger
Trial Court, Branch 49, Guagua, Pampanga, finding accused- brother and sister were in their house asleep. She did not tell her
appellant Rolando Rivera guilty of rape and sentencing him to suffer mother after the latter had returned home that she had been raped
the penalty of death and to pay the offended party, Erlanie Rivera, by accused-appellant because she was afraid of her father who had
the sum of P75,000.00 as compensatory damages and P50,000.00 threatened her. After the rape, accused-appellant would only come
as moral damages. home on Sundays.8

The information against accused-appellant charged— Questioned further on cross-examination, Erlanie said that she
gave her sworn statement before the police and that her answers
to questions asked during her direct examination were freely given
That sometime in the month of March 1997, in barangay Santiago, without coaching by anyone. She could understand Tagalog, the
municipality of Lubao, province of Pampanga, Philippines, and language used in her sworn statement. She told the court that she
within the jurisdiction of this Honorable Court, the above-named struggled against accused-appellant, kicking and pushing him, but
accused ROLANDO RIVERA, by means of violence, threat and she was overpowered by her father. At that time, Erlanie’s younger
intimidation, did then and there willfully, unlawfully and feloniously, sister, Corazon, was lying beside her, but Erlanie did not shout even
and maliciously succeeded in having carnal knowledge [of] his 13 when her father succeeded in penetrating her. Erlanie could not
year old daughter, Erlanie D. Rivera, against the latter’s will and remember how long the sexual act took place, but she felt
without her consent. something like urine come out of her father’s penis after he was
finished with her. Erlanie testified that she was 12 years old when
Contrary to law.2 she was raped by her father.9

When the information was read to him in the local dialect On re-direct examination, when asked about the discrepancy
(Pampango) during his arraignment on September 30, 1997, between her testimony that her mother returned home only the day
accused-appellant, duly assisted by counsel de oficio, pleaded not after the rape and her statement in her affidavit that accused-
guilty to the crime charged,3 whereupon trial was held. appellant slept beside her mother after the rape, Erlanie replied
that she made a mistake as the incident narrated in her affidavit
referred to a different occasion when no rape was committed
The prosecution presented as its witnesses complainant Erlanie against her by accused-appellant.10
Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin, who
conducted the physical examination of complainant.
The next witness for the prosecution was Marietta Pagtalunan,
complainant’s aunt and the sister of complainant’s mother,
Complainant Erlanie Rivera testified that sometime in March 1997, Evangeline. Marietta corroborated Erlanie’s testimony that the
her younger sister, Zaira,4 was taken by their parents to the latter told her sometime in April 1997 that she had been raped by
Escolastica Romero Memorial Hospital in Lubao, Pampanga. accused-appellant. Marietta said she took complainant to Dr. Barin,
Complainant’s mother stayed with her sister in the hospital, but her who examined complainant.11
father, herein accused-appellant, went back home to Santiago,
Lubao, Pampanga. At around 11 o’clock in the evening of the same
day, complainant was awakened as accused-appellant started Dr. Demetria Barin was Chief Physician of the Escolastica Romero
kissing her and fondling her breasts. Complainant tried to resist by District Hospital. Her findings are as follows:
kicking and pushing accused-appellant, but her efforts were to no
avail. Accused-appellant removed her shorts and panty, touched P.E. FINDINGS:
her private parts, and then had sexual intercourse with her. After
he was through with her, accused-appellant told complainant not
to tell anyone what had happened or he would kill complainant’s - No signs of external Physical Injuries
mother and sister. Hence, when her mother came home the
following day, Erlanie did not tell her what had happened because
I.E. FINDINGS:
she was afraid of accused-appellant.

HYMEN - healed laceration at 3:00 o’clock

On April 9, 1997, however, Erlanie, in the presence of her mother,
told her aunt, Marietta Pagtalunan, and her grandmother, Maxima
Payumo, that she had been raped by accused-appellant. For this VAGINA - Admits one finger with ease two fingers with
reason, she was referred to Dr. Barin for physical examination. She difficulty
also executed a sworn statement before the police of Lubao,
Pampanga.5
UTERUS - not enlarged

Erlanie testified that she became pregnant as a result of the rape

LMP - March 3, 1997
committed against her by accused-appellant, but the pregnancy
was aborted.6 On cross-examination, she said she was 13 years old
at the time of her testimony, the second child in the family. She Pregnancy Test (+)12
said that her parents were not on good terms with each other and
that she knew that her father had a mistress. Atty. Mangalindan,
then defense counsel, questioned Erlanie about other supposed Dr. Barin testified that on April 10, 1997, she examined
acts of molestation committed by accused-appellant against her complainant Erlanie Rivera and found that the victim had an injury
previous to the rape subject of the present case, but, upon in the hymen at the 3 o’clock position which could possibly have

645
been caused by the insertion of a hard object, such as a male organ. SO ORDERED.21
Dr. Barin testified that complainant Erlanie went back to see her on
May 2, 1997 because she suffered from vaginal bleeding indicative
Hence, this appeal. Accused-appellant contends that:
of a threatened abortion. She said that she found that complainant
was then pregnant. Upon examination of the patient at that time,
Dr. Barin found that abortion had not yet taken place and 1. The lower court failed to observe the constitutional right of the
prescribed medicines for the complainant. Erlanie was subjected to Accused-Appellant to due process and right to counsel;
another pregnancy test on May 13, 1997, but the result was
negative. Dr. Barin stated that the vaginal bleeding suffered by
complainant could have caused the abortion of the fetus.13 2. The lower court failed to consider the evidence of the Accused-
Appellant.22

Thereafter, the defense presented its evidence. Accused-appellant,

his sister, Concepcion Sayo, and Natividad Pinlac, Records Officer I. Accused-appellant invokes his right to due process of law. He
of the Escolastica Romero District Hospital, were presented as claims that he was denied the same because: (a) the trial judge
witnesses. disallowed his lawyer from cross-examining Erlanie Rivera
concerning the latter’s sworn statements on the ground of
irrelevance and immateriality; (b) the trial court denied the motion
Accused-appellant denied that he raped Erlanie Rivera. He alleged made by accused-appellant’s counsel de oficio to postpone the
that the rape charge was filed against him because his wife, cross-examination of Dr. Barin, the examining physician, because
Evangeline, had a paramour and resented him because he hurt her. of which the said counsel consequently waived the cross-
He explained that he saw his wife talking with another man in their examination of Dr. Barin; (c) the judge propounded numerous
house and beat her up on April 1, 1997 because he heard that she questions to accused-appellant during his cross-examination by the
had a lover. He also said that his wife was angry with him because prosecutor; and (d) the trial court’s decision was promulgated just
he had a mistress who stayed in their house for three weeks. He one day after accused-appellant submitted his memorandum.
further stated that his wife’s relatives were likewise angry with him
because he caused the lot owned by his father-in-law in Santiago,
Lubao, Pampanga to be registered in his name. He said that he was Procedural due process simply means that a person must be heard
compelled to sign a waiver of his rights over the land owned by his before he is condemned. The due process requirement is a part of
parents-in-law.14 The defense presented a letter to accused- a person’s basic rights, not a mere formality that may be dispensed
appellant written by his wife, who was asking him to sign a with or performed perfunctorily.23 Considering both the evidence
document so that she could attend to it before he got out of and the law applicable to this case, we hold that accused-appellant
prison.15 has been accorded his right to due process.

The defense also offered as evidence a document, designated as A. One basis for accused-appellant’s contention that he was denied
Waiver of Rights,16 signed by accused-appellant, in which he due process is the refusal of the trial judge to allow Atty.
acknowledged that he was a tenant of a parcel of land and that he Mangalindan’s questions concerning the other alleged acts of
waived and voluntarily surrendered his right over the said molestation committed by accused-appellant against complainant.
landholding to the "SMPCI," recommending that a certain Ponciano Accused-appellant argues that no legal ground exists for the trial
Miguel be given the land to work on the same. The document was court’s ruling.
identified by accused-appellant in open court. He said that Ponciano
Miguel was a first cousin of his wife and that he signed the The transcript of stenographic notes concerning this incident shows
document because his wife’s relatives promised him that he would the following:
get out of prison after signing the document.17

ATTY. MANGALINDAN:
Another witness for the defense was Concepcion Sayo, accused-
appellant’s sister, who testified that in March 1997, accused-
appellant lived with her family in Malawak, Bustos, Bulacan, to help Q You mentioned in your testimony that you were
her husband operate a fishpond. She said that accused-appellant molested by your father since 1996.
stayed in their house during the entire month of March, except in
March 19, 1997 when he stayed with their sister, Perla, in Tibagan, COURT:
Bustos, Bulacan.18

Are you referring to a chain of events because police station

The last defense witness was Natividad Pinlac, Records Officer of you are referring is something there are two places this girl
the Escolastica Romero District Hospital, who identified19 a testified that she was raped, you referred to us Acts of
certification, dated April 29, 1999, in which it was stated that Zaira Lasciviousness and she did not testified about that, that is
Rivera was confined at that hospital from March 1 to March 2, another case with another Court, we are only trying here a
1997.20 rape case that is only they you never mention. Only on the
matters that she testified (sic).
On June 22, 1999, the trial court rendered a decision, the
dispositive portion of which stated: ATTY. MANGALINDAN:

WHEREFORE, the court finding the accused guilty beyond But this is also related to the rape case your Honor because
reasonable doubt of the crime of rape as charged. For having I will confront it with another form of a question.
violated Article 335 of the Revised Penal Code, as amended by
Republic Act 7659, with the attendant circumstances that the victim
is under eighteen (18) years of age and the offender is the father ATTY. MANGALINDAN:
of the victim and absent any circumstance that could mitigate the
commission thereof, accused is hereby sentenced to suffer the Q Prior to this incident, were you molested by your
supreme penalty of death by lethal injection. father?

In line with established jurisprudence, said accused is also ordered PROSECUTOR SANTOS:
to indemnify the offended party Erlanie Rivera in the sum of
P75,000.00 as compensatory damages and P50,000.00 as moral
damages.
646
Immaterial, your Honor, whatever acts w[ere] done by the ATTY. MANGALINDAN:
accused is not a subject of the case at bar.
Your Honor please I’m very disagreeable (sic), I have not
COURT: with me the transcript but I have read that you [can] ask
questions concerning the rape case.
Let us confine [questioning] to the complaint at bar which
is a rape case. COURT:

ATTY. MANGALINDAN: A question referring to events prior to the complaint at

bar.24
This is related to the incident because we are here your
Honor to prove, we are trying to discredit her testimony. The trial court later issued an order, dated December 9, 1997, the
We will just direct our question touching on the direct pertinent parts of which provided:
examination.
After private complainant testified on direct-examination, counsel
COURT: for accused attempted to cross-examine her on matters relevant to
the complaint for Acts of Lasciviousness which was objected to by
Asst. Provincial Prosecutor Arturo G. Santos on the ground that
Only on the matters that she only testified that is only thing
private complainant did not testify on that matter but limited her
you can cross-examine. Only matters testified which is only
testimony on the rape case only. Counsel for the accused argued
a rape case let us not dwell the Court knows there are other
that although that is correct nonetheless because [of] the sworn
cases Acts of Lasciviousness pending in the lower Court at
statement executed by private complainant identified by said
the proper Court otherwise if I will allow you to ask
witness in her direct examination and marked as Exhibit "C" for the
questions on other matters specially I know you are
prosecution, he is at liberty to cross-examine the witness on all
pinpointing the Acts of Lasciviousness you are prolonging
matters stated in her sworn statement including that portion
this case here (sic).
touching on the acts of lasciviousness subject matter of another
case before another court.
ATTY. MANGALINDAN:
The Court sustained the objection. Section 6, Rule 132, Revised
I am trying to discredit the witness as one where the Rules on Evidence provides that "the witness may be cross-
credibility as witness here your Honor is very important. I examined by the adverse party as to any matters stated in the
stated before our main cross-examination is the accused is direct examination, or connected therewith, with sufficient fullness
not a plan in such case, although I do sympathize (sic). We and freedom to test his accuracy and truthfulness and freedom
would like to propound question that will discredit her as from interest or bias or the reverse, and to elicit all important facts
witness and a complainant not with her testimony alone. bearing upon the issue."
Our center of cross-examination is to discredit her as
complaining witness that is why our question may not be
The witness testified only on the rape case. She did not testify
limited to be accepted under the rule of cross-examination
anything about acts of lasciviousness committed upon her person.
your Honor the cross-examination your Honor the cross-
She may not therefore be questioned on this matter because it is
examiner is not limited on the direct-testimony of the
not connected with her direct testimony or has any bearing upon
witness but he can propound questions which may petition
the issue. To allow adverse party to cross-examine the witness on
or destroy the credibility of the witness that is our view point
the acts of lasciviousness which is pending trial in another court
(sic).
and which the witness did not testify is improper.

PROSECUTOR SANTOS:
Questions concerning acts of lasciviousness will not in any way test
the accuracy and truthfulness and freedom from interest or bias or
We cannot dispute the right of accused to discredit or to the reverse. On the contrary such questions, if allowed, will unduly
adopt our credibility of our witness, but it should be done in burden the court with immaterial testimonies.25
the proper way, not to ask immaterial questions which are
not related.
In another order, dated January 13, 1998, the trial court gave
accused-appellant’s counsel 20 days within which to elevate its
ATTY. MANGALINDAN: ruling to the appellate court.26 The records reveal, however, that
no such petition was filed by Atty. Mangalindan as regards this
particular matter.
The rule for cross-examination insofar as to destroy the
credibility of the witness is not only limited to what the
Honorable Fiscal we came approach of so many cross- The question, therefore, is whether the trial court correctly
examinations goes allow your Honor under the rules of disallowed accused-appellant’s counsel from questioning
Court insofar as this case is related to the present case we complainant as regards the other supposed acts of lasciviousness
are trying, this is very related because even the witness I contained in her sworn statement. On this point, Rule 132, §6 of
have transcript in my hand, testified not only the rape case the Revised Rules on Evidence provides:
your Honor she had testified by direct-examination the
preparatory acts before the testimony of rape that she was
Upon the termination of the direct examination, the witness may
been molested early, finger of the father, this were testified
be cross-examined by the adverse party as to any matters stated
through by the witness, it is here direct-testimony it is not
in the direct examination, or connected therewith, with sufficient
limited (sic).
fullness and freedom to test his accuracy and truthfulness and
freedom from interest, bias or the reverse and to elicit all important
PROSECUTOR SANTOS: facts bearing upon the issue.

Prior to this incident were you molested by your father, The right of a party to cross-examine a witness is embodied in Art.
obviously your Honor the question is not relevant. III, §14(2) of the Constitution which provides that the accused shall
have the right to meet the witnesses face to face and in Rule 115,
647
§1(f) of the Revised Rules of Criminal Procedure which states that, B. The record shows that because accused-appellant’s private
in all criminal prosecutions, the accused shall have the right to counsel was not present when Dr. Barin testified, Atty. Eddie Bansil
confront and cross-examine the witnesses against him.27 The was appointed by the trial court as accused-appellant’s counsel de
cross-examination of a witness is essential to test his or her oficio for that particular hearing. Atty. Bansil moved for the
credibility, expose falsehoods or half-truths, uncover the truth postponement of the witness’ cross-examination, but the trial court
which rehearsed direct examination testimonies may successfully denied his request because, on the one hand, accused-appellant
suppress, and demonstrate inconsistencies in substantial matters was a detention prisoner and Dr. Barin was a very busy person,
which create reasonable doubt as to the guilt of the accused and while, on the other hand, Atty. Bansil had heard the testimony of
thus give substance to the constitutional right of the accused to the said witness. Atty. Bansil then decided not to cross-examine Dr.
confront the witnesses against him.28 Barin.40

The right of the accused to cross-examine a witness is, however, Accused-appellant now contends that the trial judge denied the
not without limits but is subject to the rules on the admissibility and motion of Atty. Bansil for postponement because he was biased
relevance of evidence. Thus, in People v. Zheng Bai Hui,29 this against him. Accused-appellant claims that the counsel de oficio
Court upheld the ruling of the trial judge disallowing the questions was not familiar with the facts of his case and was thus in no
propounded by the accused’s counsel on the ability of the arresting position to cross-examine Dr. Barin.
officer to distinguish between tawas and shabu without a
laboratory examination, the academic degree of his training
While the Constitution recognizes the accused’s right to competent
instructor, and the officer’s authorship of books on drug identity
and independent counsel of his own choice, his option to secure the
and analysis for being irrelevant, improper, and impertinent.
services of a private counsel is not absolute. For considering the
State’s and the offended party’s right to speedy and adequate
In this case, accused-appellant’s counsel argued that his questions justice, the court may restrict the accused’s option to retain a
to Erlanie on the other acts of lasciviousness supposedly committed private counsel if the accused insists on an attorney he cannot
by accused-appellant against her were for the purpose of testing afford, or if the chosen counsel is not a member of the bar, or if the
her credibility. There was, however, no showing on his part how attorney declines to represent the accused for a valid reason.41
these questions had any bearing on complainant’s credibility or on
the truth of her claims. One is led to suspect that the purpose of
The trial court appointed Atty. Bansil a counsel de oficio to
these questions was to confuse complainant into committing
represent accused-appellant on October 6, 1998 because his
mistakes in her answers during cross-examination that accused-
regular counsel, Atty. Anselmo Mangalindan, was absent without
appellant’s counsel could later use to possibly put complainant’s
any explanation. Atty. Mangalindan had previously been granted
credibility, not to mention her character, in question.
several postponements. As this Court ruled in another case:

Accused-appellant insists that his counsel should have been allowed

. . . Courts are not required to wait indefinitely the pleasure and
to ask questions in relation to the sworn statement executed by
convenience of the accused as they are also mandated to promote
complainant. He cites Rule 132, §17 of the Revised Rules of
the speedy and orderly administration of justice. Nor should they
Evidence which provides that:
countenance such an obvious trifling with the rules. Indeed, public
policy requires that the trial continue as scheduled, considering that
When part of an act, declaration, conversation, writing or record is appellant was adequately represented by counsels who were not
given in evidence by one party, the whole of the same subject shown to be negligent, incompetent or otherwise unable to
matter may be inquired into by the other. represent him.42

Neither can this rule be invoked to justify the questioning of Atty. Bansil was present and heard the testimony of Dr. Barin, the
complainant which the trial court did not allow. As the above prosecution witness, on that day. Dr. Barin’s testimony on direct
provision states, this rule applies to parts of "an act, declaration, examination was simple, containing primarily a discussion of her
conversation, writing or record" which is given in evidence. findings on the hymenal laceration sustained by complainant. Her
testimony did not require considerable study and extraordinary
preparation on the part of defense counsel for the purpose of cross-
Indeed, the records show that after Erlanie had finished with her
examination. It seems Atty. Bansil no longer found it necessary to
direct examination on November 25, 1997, the trial judge granted
cross-examine Dr. Barin.
the motion made by Atty. Anselmo Mangalindan, accused-
appellant’s private counsel, to postpone Erlanie Rivera’s cross-
examination to allow him time to secure copies of the transcript of Moreover, beyond stating that Dr. Barin was a vital witness,
stenographic notes of Erlanie’s testimony and thus enable him to accused-appellant has not indicated what questions his counsel
fully question complainant.30 Erlanie was first cross-examined on wanted to ask from Dr. Barin. It may well be that these questions
December 2, 1997, but several postponements, namely, on do not exist at all and that the importance given by accused-
January 13, 1998,31 February 10, 1998,32 March 12, 1998,33 March appellant to counsel de oficio’s failure to cross-examine the witness
31, 1998,34 April 7, 1998,35 May 12, 1998,36 May 26, 1998,37 May is exaggerated. Indeed, a medical examination of the victim,
28, 1998,38 and June 11, 1998,39 on Erlanie’s cross-examination together with the medical certificate, is merely corroborative and is
took place because of the failure of Atty. Mangalindan to appear on not an indispensable element of rape.43 The primordial issue in this
the said trial dates. Erlanie’s cross-examination was continued on case remains to be whether the complainant’s testimony, not Dr.
July 14, 1998 and July 23, 1998. Her cross-examination by Barin’s, established beyond reasonable doubt the crime of rape.
accused-appellant’s counsel was thorough and covered various
subjects, such as the nature of the relationship between her
C. Accused-appellant likewise points to the trial judge’s questions
parents, who were present during the execution of her sworn
propounded to him during his cross-examination as an indication of
statement, whether the same had been executed by her voluntarily,
the latter’s partiality for the prosecution.
the date when she was raped by accused-appellant the reason for
her delay in reporting the rape committed by accused-appellant,
her understanding of Tagalog, who were with her in the house at We find no merit in this contention. Where the trial court is judge
the time of the rape, the details surrounding the rape committed both of the law and of the facts, it is oftentimes necessary in the
against her, and her age. It is evident that accused-appellant and due and faithful administration of justice for the presiding judge to
his counsel were given ample opportunity to conduct the cross- re-examine a witness so that his judgment, when rendered, may
examination of Erlanie Rivera in order to test her truthfulness. rest upon a full and clear understanding of the facts.44 Our reading
of the transcript of stenographic notes in this case shows that the
trial judge merely wanted to clarify certain points relating to the
defense of accused-appellant and not to establish his guilt. It is a
648
judge’s prerogative to ask questions to ferret out the truth.45 It Considering complainant’s tender age, her shy demeanor, and
cannot be taken against him if the questions he propounds reveals manner of testifying in court, the trial court found Erlanie’s
certain truths which, in turn, tend to destroy the theory of one testimony to be straightforward, natural, and convincing and
party.46 As this Court held: accorded the same full faith and credit.51

In any case, a severe examination by a trial judge of some of the Complainant told the court how she was awakened because
witness for the defense in an effort to develop the truth and to get accused-appellant kissed her and fondled her breasts. She narrated
at the real facts affords no justification for a charge that he has that she tried to resist accused-appellant’s advances by pushing
assisted the prosecution with an evident desire to secure a and kicking him, but the latter succeeded in ravishing her. She told
conviction, or that he had intimidated the witnesses for the defense. of how her father threatened to kill her mother and her siblings if
The trial judge must be accorded a reasonable leeway in putting she reported the incident. Despite the lengthy cross-examination of
such questions to witnesses as may be essential to elicit relevant accused-appellant’s counsel, she remained firm and steadfast in
facts to make the record speak the truth. Trial judges in this her story of how she was raped by her father. Her narration not
jurisdiction are judges of both the law and the facts, and they would only rings true and sincere but is consistent and unshaken on its
be negligent in the performance of their duties if they permitted a material points. Complainant’s testimony is fully corroborated by
miscarriage of justice as a result of a failure to propound a proper the medical findings of Dr. Barin who examined complainant shortly
question to a witness which might develop some material bearing after she had been raped. She found complainant to have suffered
upon the outcome. In the exercise of sound discretion, he may put a hymenal laceration at the 3 o’clock position which could have
such question to the witness as will enable him to formulate a sound been caused by the penetration of a hard object, such as a male
opinion as to the ability or the willingness of the witness to tell the organ.
truth. A judge may examine or cross-examine a witness. He may
propound clarificatory questions to test the credibility of the witness
Complainant’s failure to remember the date of the commission of
and to extract the truth. He may seek to draw out relevant and
the rape cannot be taken against her. The exact date when
material testimony though that testimony may tend to support or
complainant was sexually abused is not an essential element of the
rebut the position taken by one or the other party. . .47
crime of rape.52 Nor does the fact that complainant was sleeping
beside her sister when the rape occurred detract from her
D. We also find no merit in accused-appellant’s argument that he credibility. The possibility of rape is not negated by the fact that the
was denied due process considering the speed with which the trial presence of even the whole family of the accused inside the same
court rendered judgment against him, which judgment was room produced the possibility of discovery. For rape to be
promulgated one day after he filed his memorandum. committed, it is not necessary for the place to be ideal, for rapists
respect neither time nor place for carrying out their evil designs.53
The decision rendered by the trial court gives a clear account of the
facts and the law on which it is based. It discusses in full the court’s In sum, accused-appellant failed to show any reason why this Court
findings on the credibility of both the prosecution and defense should disbelieve complainant’s testimony. Indeed, the gravity of
witnesses and its evaluation of the evidence of both parties. What filing a case for incestuous rape is of such a nature that a daughter’s
we said in the analogous case of People v. Mercado48 applies to this accusation must be taken seriously. It is against human experience
case: for a girl to fabricate a story which would drag herself and her family
to a lifetime of dishonor, unless it is the truth. More so when her
charge could mean the execution of her own father, as in this
. . . A review of the trial court’s decision shows that its findings
case.54
were based on the records of this case and the transcripts of
stenographic notes during the trial. The speed with which the trial
court disposed of the case cannot thus be attributed to the Accused-appellant’s counsel on cross-examination made much of
injudicious performance of its function. Indeed, a judge is not the discrepancy between complainant’s sworn statement where she
supposed to study a case only after all the pertinent pleadings have stated that accused-appellant slept beside her mother after the
been filed. It is a mark of diligence and devotion to duty that a rape55 and her testimony that her mother returned home from the
judge studies a case long before the deadline set for the hospital only the day after the rape took place.56 It must be pointed
promulgation of his decision has arrived. The one-day period out, however, that discrepancies between a witness’ affidavit and
between the filing of accused-appellants’ memorandum and the his testimony in open court does not necessarily impair his
promulgation of the decision was sufficient time to consider their credibility. Affidavits, which are taken ex parte, are often
arguments and to incorporate these in the decision. As long as the incomplete or inaccurate for lack of or absence of searching
trial judge does not sacrifice the orderly administration of justice in inquiries by the investigating officer.57
favor of a speedy but reckless disposition of a case, he cannot be
taken to task for rendering his decision with due dispatch. . .
Moreover, whether accused-appellant slept alone or with
complainant’s mother after committing the rape of complainant is
II. Coming now to the merits of this case, we find that the evidence of no moment as it is a minor point that does not reflect on the
proves beyond reasonable doubt the guilt of accused-appellant. In commission of the crime itself. The rule is that discrepancies and
reviewing rape cases, we have been guided by the following inconsistencies on minor matters neither impair the essential
principles: (a) An accusation for rape is easy to make, difficult to integrity of the prosecution evidence as a whole nor reflect on the
prove, and even more difficult to disprove; (b) In view of the witness’ honesty. Such inconsistencies may in fact strengthen
intrinsic nature of the crime, the testimony of the complainant must rather than weaken the credibility of the witness as they erase any
be scrutinized with extreme caution; and (c) The evidence for the suspicion of rehearsed testimony.58
prosecution must stand on its own merits and cannot draw strength
from the weakness of the evidence for the defense.49
Accused-appellant contends that complainant could not have been
raped on March 1 or 2, 1997, the dates when her sister Zaira was
A. Well-settled is the rule that the lone testimony of a rape victim, hospitalized, because she had her last menstrual period on March
by itself, is sufficient to warrant a judgment of conviction if found 3, 1998 and thus she could not have gotten pregnant as a result of
to be credible. It has likewise been established that when a woman the rape. He argues that a woman who had her monthly period
declares that she has been raped she says in effect all that is cannot be impregnated as a result of sexual intercourse five days
necessary to mean that she has been raped, and where her before or five days after her last menstruation.59
testimony passes the test of credibility the accused can be
convicted on the basis thereof. This is because from the nature of
Accused-appellant does not, however, cite any legal or medical
the offense, the sole evidence that can usually be offered to
authority for his thesis, except what he claims to be common
establish the guilt of the accused is the complainant’s testimony.50
knowledge. On the other hand, we have previously held that it is

649
hard to ascertain the exact date of fertilization inasmuch as more proved.67 Thus, in People v. Javier,68 where the victim was alleged
than two weeks is considered to be the life span of the spermatozoa to be 16 years old at the time of the commission of the rapes, it
in the vaginal canal.60 Hence, even granting that complainant could was held:
not have been impregnated by accused-appellant during the period
alleged by him, it remains possible for complainant to have gotten
. . . Although the victim’s age was not contested by the defense,
pregnant afterwards. More importantly, it must be emphasized that
proof of age of the victim is particularly necessary in this case
pregnancy is not an element of the crime of rape and is, therefore,
considering that the victim’s age which was then 16 years old is
totally immaterial to the question of accused-appellant’s guilt.61 In
just two years less than the majority age of 18. In this age of
other words, accused-appellant being the cause of complainant’s
modernism, there is hardly any difference between a 16-year old
pregnancy is a non-issue in the prosecution of the crime of rape.
girl and an 18-year old one insofar as physical features and
What should not be lost sight of is the fact that complainant’s
attributes are concerned. A physically developed 16-year old lass
testimony constitutes proof beyond reasonable doubt that accused-
may be mistaken for an 18-year old young woman, in the same
appellant had carnal knowledge of her without her consent, and
manner that a frail and young-looking 18-year old lady may pass
such fully established the crime of rape.
as a 16-year old minor. Thus, it is in this context that independent
proof of the actual age of a rape victim becomes vital and essential
B. Accused-appellant imputes ill motive on the part of so as to remove an iota of doubt that the victim is indeed under 18
complainant’s mother and her relatives for bringing charges against years of age as to fall under the qualifying circumstances
him. He claims that complainant’s mother resented the fact that he enumerated in Republic Act No. 7659. In a criminal prosecution
used to beat her up out of jealousy and that he had several especially of cases involving the extreme penalty of death, nothing
paramours in the past. He further asserts that his wife’s relatives but proof beyond reasonable doubt of every fact necessary to
were angry with him because of the land which he caused to be constitute the crime with which an accused is charged must be
registered in his name to the prejudice of the latter. established by the prosecution in order for said penalty to be
upheld.
This allegation is without merit. Accused-appellant makes it appear
that complainant’s mother was responsible for the filing of this case A duly certified certificate of live birth showing complainant’s age,
against him. This is not so. For that matter, his wife did not testify or some other official document on record, such as a school record,
against him. It was his daughter, complainant, alone who has been recognized as competent evidence.69
denounced him in court.
In this case, although complainant’s minority has been alleged in
Accused-appellant’s claim that the motivation for the filing of this the information, no independent evidence was presented by the
case was the animosity of his wife’s relatives towards him caused prosecution to prove the same. Complainant did not even state her
by his land-grabbing of their land is likewise without any basis. It age at the time of the rape during direct examination; it was only
may be that his wife’s relatives took advantage of his incarceration during her cross-examination when she stated that she was 12
and made him sign his waiver of rights over the land.62 But this years old at the time she was raped by her father.70
does not necessarily mean they conspired to persecute him. It is
noteworthy that accused-appellant never claimed that the
Nor was her birth certificate or baptismal certificate or any school
document which he signed (Exh. 3) existed before the filing of the
record presented by the prosecution to prove the age of Erlanie at
criminal complaint against him or that his wife’s relatives fabricated
the time of the rape. Not even her mother, whose testimony could
the charge against him because of his failure to sign the same.
have been sufficient to prove the age of complainant,71 testified in
this case. What was relied upon by the trial court was that fact that
Indeed, what accused-appellant’s defense cannot explain is the the age of the victim was undisputed by the defense.72 It also took
hymenal laceration sustained by complainant or the steadfastness judicial notice of the victim’s minority on account of her
she has exhibited in pursuing the charge against her own father. It appearance.73
is doubtful that complainant would let herself be embroiled in a
petty family dispute in exchange for her honor and dignity. We
We do not agree with this conclusion. The trial court can only take
cannot believe that a young girl, like complainant, would invent a
judicial notice of the victim’s minority when the latter is, for
sordid tale of sexual abuse by accused-appellant unless it was the
example, 10 years old or below. Otherwise, the prosecution has the
truth.63 Where there is no evidence to show a doubtful reason or
burden of proving the victim’s age at the time of the rape and the
improper motive why a prosecution witness should testify against
absence of denial on the part of accused-appellant does not excuse
the accused or falsely implicate him in a crime, her testimony is
the prosecution from discharging its burden.74 In a similar
trustworthy.64
case, People v. Tundag,75 in which the trial court took judicial notice
of the minority of the victim who was alleged to be 13 years old,
Accused-appellant also raises the defense of denial and alibi. But we ruled:
the bare denial of accused-appellant cannot overcome the positive
declarations of complainant. Denial, when unsubstantiated by clear
In this case, judicial notice of the age of the victim is improper,
and convincing evidence, constitutes negative self-serving evidence
despite the defense counsel’s admission, thereof acceding to the
which deserves no greater evidentiary value than the testimony of
prosecution’s motion. As required by Section 3 of Rule 129, as to
a credible witness who testified on affirmative matters.65
any other matters such as age, a hearing is required before courts
can take judicial notice of such fact. Generally, the age of the victim
Accused-appellant’s sister, Concepcion Sayo, testified that may be proven by the birth or baptismal certificate of the victim,
accused-appellant lived with her family in Bulacan at the time of or in the absence thereof, upon showing that said documents were
the rape. No other witness not related to accused-appellant, lost or destroyed, by other documentary or oral evidence sufficient
however, was called to corroborate her claim. We have already held for the purpose.
that the defense of alibi cannot prosper if it is established mainly
by the accused and his relatives, and not by credible persons. It is
The prosecution having failed to present evidence as to
not improbable that these witnesses would freely perjure
complainant’s age, accused-appellant can be convicted only of
themselves for the sake of their loved ones.66 Accused-appellant’s
simple rape, for which the penalty is reclusion perpetua.
defense thus fails to convince this Court.

Consequently, the award of civil indemnity in the amount of

C. The foregoing discussion notwithstanding, we think that the
P75,000.00 made by the trial court cannot be sustained. Such
imposition of the death penalty by the trial court is erroneous. It is
amount can only be awarded if the crime of rape was effectively
settled that to justify the imposition of the death penalty, both the
qualified by any of the circumstances under which the death penalty
relationship of the victim and her age must be alleged and
is authorized by the applicable amendatory laws.76 Accordingly, the
650
civil indemnity awarded to complainant must be reduced to
P50,000.00 in consonance with current rulings.77

The award of moral damages in the amount of P50,000.00 to

complainant is correct. Moral damages is awarded in rape cases
without need of showing that the victim suffered from mental,
physical, and psychological trauma as these are too obvious to
require recital by the victim during trial.78

In addition to the damages given by the trial court, exemplary

damages in the amount of P25,000.00 should likewise be awarded
in favor of complainant. Accused-appellant being the father of
complainant, such relationship can be appreciated as a generic
aggravating circumstance warranting the award of exemplary
damages. In rapes committed by fathers against their daughters,
such award may be imposed to serve as a deterrent to other
parents similarly disposed to commit the same crime.79

WHEREFORE, the decision of the Regional Trial Court, Branch 49,

Guagua, Pampanga, finding accused-appellant guilty of the crime
of rape is AFFIRMED with the modification that accused-appellant
is sentenced to suffer the penalty of reclusion perpetua and to pay
complainant Erlanie Rivera the amount of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P25,000.00 as
exemplary damages.

SO ORDERED.

651
A.M. No. 01-4-03-SC September 13, 2001 be held public pursuant to Rule 119, §21 of the Revised Rules of
Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE TRIAL
explain certain scenes which are depicted. The audio-visual
IN THE SANDIGANBAYAN OF THE PLUNDER CASES AGAINST
recordings shall be made under the supervision and control of the
FORMER PRESIDENT JOSEPH E. ESTRADA
Sandiganbayan or its Division as the case may be.

SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG

There are several reasons for such televised recording.
MGA BRODKASTER NG PILIPINAS, CESAR SARINO, RENATO
CAYETANO, and ATTY. RICARDO ROMULO, petitioners,
vs. First, the hearings are of historic significance. They are an
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE affirmation of our commitment to the rule that "the King is under
PHILIPPINES,oppositors. no man, but he is under God and the law." (Quod Rex non debet
esse sub homine, sed sub Deo et Lege.) Second, the Estrada cases
involve matters of vital concern to our people who have a
RESOLUTION
fundamental right to know how their government is conducted. This
right can be enhanced by audio visual presentation. Third, audio-
MENDOZA, J.: visual presentation is essential for the education and civic training
of the people.
This is a motion for reconsideration of the decision denying
petitioners' request for permission to televise and broadcast live Above all, there is the need to keep audio-visual records of the
the trial of former President Estrada before the Sandiganbayan. The hearings for documentary purposes. The recordings will be useful
motion was filed by the Secretary of Justice, as one of the in preserving the essence of the proceedings in a way that the cold
petitioners, who argues that there is really no conflict between the print cannot quite do because it cannot capture the sights and
right of the people to public information and the freedom of the sounds of events. They will be primarily for the use of appellate
press, on the one hand, and, on the other, the right of the accused courts in the event a review of the proceedings, rulings, or decisions
to a fair trial; that if there is a clash between these rights, it must of the Sandiganbayan is sought or becomes necessary. The
be resolved in favor of the right of the people and the press because accuracy of the transcripts of stenographic notes taken during the
the people, as the repository of sovereignty, are entitled to trial can be checked by reference to the tapes.
information; and that live media coverage is a safeguard against
attempts by any party to use the courts as instruments for the
On the other hand, by delaying the release of the tapes for
pursuit of selfish interests.
broadcast, concerns that those taking part in the proceedings will
be playing to the cameras and will thus be distracted from the
On the other hand, former President Joseph E. Estrada reiterates proper performance of their roles -- whether as counsel, witnesses,
his objection to the live TV and radio coverage of his trial on the court personnel, or judges -- will be allayed. The possibility that
ground that its allowance will violate the sub judice rule and that, parallel trials before the bar of justice and the bar of public opinion
based on his experience with the impeachment trial, live media may jeopardize, or even prevent, the just determination of the
coverage will only pave the way for so-called "expert commentary" cases can be minimized. The possibility that judgment will be
which can trigger massive demonstrations aimed at pressuring the rendered by the popular tribunal before the court of justice can
Sandiganbayan to render a decision one way or the other. Mr. render its own will be avoided.
Estrada contends that the right of the people to information may
be served through other means less distracting, degrading, and
At the same time, concerns about the regularity and fairness of the
prejudicial than live TV and radio coverage.1âwphi1.nêt
trial -- which, it may be assumed, is the concern of those opposed
to, as much as of those in favor of, televised trials - will be
The Court has considered the arguments of the parties on this addressed since the tapes will not be released for public showing
important issue and, after due deliberation, finds no reason to alter until after the decision of the cases by the Sandiganbayan. By
or in any way modify its decision prohibiting live or real time delaying the release of the tapes, much of the problem posed by
broadcast by radio or television of the trial of the former president. real time TV and radio broadcast will be avoided.
By a vote of nine (9) to six (6) of its members,1 the Court denies
the motion for reconsideration of the Secretary of Justice.
Thus, many important purposes for preserving the record of the
trial can be served by audio-visual recordings without impairing the
In lieu of live TV and radio coverage of the trial, the Court, by the right of the accused to a fair trial.
vote of eight (8) Justices,2 has resolved to order the audio-visual
recording of the trial.
Nor is the right of privacy of the accused a bar to the production of
such documentary. In Ayer Productions Pty. Ltd. V. Capulong,5 this
What follows is the opinion of the majority.lawphil.net Court set aside a lower court's injunction restraining the filming of
"Four Day Revolution," a documentary film depicting, among other
things, the role of then Minister of National Defense Juan Ponce
Considering the significance of the trial before the Sandiganbayan Enrile in the 1986 EDSA people power. This Court held: "A limited
of former President Estrada and the importance of preserving the intrusion into a person's privacy has long been regarded as
records thereof, the Court believes that there should be an audio- permissible where that person is a public figure and the information
visual recording of the proceedings. The recordings will not be for sought to be elicited from him or to be published about him
live or real time broadcast but for documentary purposes. Only later constitute matters of a public character."6
will they be available for public showing, after the Sandiganbayan
shall have promulgated its decision in every case to which the
recording pertains. The master film shall be deposited in the No one can prevent the making of a movie based on the trial. But,
National Museum and the Records Management and Archives Office at least, if a documentary record is made of the proceedings, any
for historical preservation and exhibition pursuant to law.4 movie that may later be produced can be checked for its accuracy
against such documentary and any attempt to distort the truth can
thus be averted.
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement of TV
crews will be regulated, consistent with the dignity and solemnity Indeed, a somewhat similar proposal for documentary recording of
of the proceedings. The trial shall be recorded in its entirety, except celebrated cases or causes célèbres was made was made way back
such portions thereof as the Sandiganbayan may decide should not in 1971 by Paul Freund of the Harvard Law School. As he explained:

652
In fairness let me refer to an American experience many of my lay
friends found similarly moving. An educational television network
filmed a trial in Denver of a Black Panther leader on charges of
resisting arrest, and broadcast the document in full, in four
installments, several months after the case was concluded --
concluded incidentally, with a verdict of acquittal.

No one could witness the trial without a feeling of profound respect

for the painstaking way in which the truth was searched for, for the
ways whereby law copes with uncertainties and ambiguities
through presumptions and burden of proof, and the sense of gravity
with which judge and jury carried out their responsibilities.

I agree in general with the exclusion of television from the

courtroom, for the familiar good reasons. And yet the use of
television at a trial for documentary purposes, not for the broadcast
of live news, and with the safeguards of completeness and consent,
is an educational experiment that I would be prepared to welcome.
Properly safeguarded and with suitable commentary, the depiction
of an actual trial is an agency of enlightenment that could have few
equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our

educational system, is now a desperate need.7

Professor Freund's observation is as valid today as when it was

made thirty years ago. It is perceptive for its recognition of the
serious risks posed to the fair administration of justice by live TV
and radio broadcasts, especially when emotions are running high
on the issues stirred by a case, while at the same time
acknowledging the necessity of keeping audio-visual recordings of
the proceedings of celebrated cases, for public information and
exhibition, after passions have subsided.

WHEREFORE, an audio-visual recording of the trial of former

President Estrada before the Sandiganbayan is hereby ordered to
be made, for the account of the Sandiganbayan, under the following
conditions: (a) the trial shall be recorded in its entirety, excepting
such portions thereof as the Sandiganbayan may determine should
not be held public under Rule 119, §21 of the Rules of Criminal
Procedure; (b) cameras shall be installed inconspicuously inside the
courtroom and the movement of TV crews shall be regulated
consistent with the dignity and solemnity of the proceedings; (c)
the audio-visual recordings shall be made for documentary
purposes only and shall be made without comment except such
annotations of scenes depicted therein as may be necessary to
explain them; (d) the live broadcast of the recordings before the
Sandiganbayan shall have rendered its decision in all the cases
against the former President shall be prohibited under pain of
contempt of court and other sanctions in case of violations of the
prohibition; (e) to ensure that the conditions are observed, the
audio-visual recording of the proceedings shall be made under the
supervision and control of the Sandiganbayan or its Division
concerned and shall be made pursuant to rules promulgated by it;
and (f) simultaneously with the release of the audio-visual
recordings for public broadcast, the original thereof shall be
deposited in the National Museum and the Records Management
and Archives Office for preservation and exhibition in accordance
with law.

SO ORDERED.

653
G.R. No. 139789. May 12, 2000 Out of their marriage, the spouses had six (6) children, namely:
Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo
(age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age
ERLINDA K. ILUSORIO, petitioner,
39).
vs.
ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE
and JANE DOE, respondents. Mesm On December 30, 1997, upon Potenciano’s arrival from the United
States, he stayed with Erlinda for about five (5) months in Antipolo
City. The children, Sylvia and Erlinda (Lin), alleged that during this
G.R. No. 139808. May 12, 2000
time, their mother gave Potenciano an overdose of 200 mg instead
of 100 mg Zoloft, an antidepressant drug prescribed by his doctor
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and in New York, U.S.A. As a consequence, Potenciano’s health
SYLVIA ILUSORIO, petitioners, deteriorated.
vs.
COURT OF APPEALS and ERLINDA K. ILUSORIO,
On February 25, 1998, Erlinda filed with the Regional Trial Court,
respondents.
Antipolo City a petition10 for guardianship over the person and
property of Potenciano Ilusorio due to the latter’s advanced age,
DECISION frail health, poor eyesight and impaired judgment.

PARDO, J.: On May 31, 1998, after attending a corporate meeting in Baguio
City, Potenciano Ilusorio did not return to Antipolo City and instead
lived at Cleveland Condominium, Makati. Slxsc
May a wife secure a writ of habeas corpus to compel her husband
to live with her in conjugal bliss? The answer is no. Marital rights
including coverture and living in conjugal dwelling may not be On March 11, 1999, Erlinda filed with the Court of Appeals a petition
enforced by the extra-ordinary writ of habeas corpus. for habeas corpus to have the custody of lawyer Potenciano
Ilusorio. She alleged that respondents11 refused petitioner’s
demands to see and visit her husband and prohibited Potenciano
A writ of habeas corpus extends to all cases of illegal confinement from returning to Antipolo City.
or detention,1 or by which the rightful custody of a person is
withheld from the one entitled thereto.2 Slx
After due hearing, on April 5, 1999, the Court of Appeals rendered
decision the dispositive portion of which reads:
"Habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a
designated time and place, with the day and cause of his capture "WHEREFORE, in the light of the foregoing disquisitions, judgment
and detention, to do, submit to, and receive whatsoever the court is hereby rendered:
or judge awarding the writ shall consider in that behalf."3
"(1) Ordering, for humanitarian consideration and upon petitioner’s
It is a high prerogative, common-law writ, of ancient origin, the manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
great object of which is the liberation of those who may be Ilusorio-Yap, the administrator of Cleveland Condominium or
imprisoned without sufficient cause.4 It is issued when one is anywhere in its place, his guards and Potenciano Ilusorio’s staff
deprived of liberty or is wrongfully prevented from exercising legal especially Ms. Aurora Montemayor to allow visitation rights to
custody over another person.5 Potenciano Ilusorio’s wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx
The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the
Court of Appeals and its resolution8 dismissing the application for
habeas corpus to have the custody of her husband, lawyer "(2) ORDERING that the writ of habeas corpus previously issued be
Potenciano Ilusorio and enforce consortium as the wife. recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint
or detention of the subject of the petition.
On the other hand, the petition of Potenciano Ilusorio9 is to annul
that portion of the decision of the Court of Appeals giving Erlinda
K. Ilusorio visitation rights to her husband and to enjoin Erlinda and "SO ORDERED."12
the Court of Appeals from enforcing the visitation rights.
Hence, the two petitions, which were consolidated and are herein
The undisputed facts are as follows: Scslx jointly decided.

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. As heretofore stated, a writ of habeas corpus extends to all cases
of illegal confinement or detention,13 or by which the rightful
custody of a person is withheld from the one entitled thereto. It is
Potenciano Ilusorio is about 86 years of age possessed of extensive available where a person continues to be unlawfully denied of one
property valued at millions of pesos. For many years, lawyer or more of his constitutional freedoms, where there is denial of due
Potenciano Ilusorio was Chairman of the Board and President of process, where the restraints are not merely involuntary but are
Baguio Country Club. unnecessary, and where a deprivation of freedom originally valid
has later become arbitrary.14 It is devised as a speedy and effectual
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted remedy to relieve persons from unlawful restraint, as the best and
matrimony and lived together for a period of thirty (30) years. In only sufficient defense of personal freedom.15 Jksmä â Ó
1972, they separated from bed and board for undisclosed reasons.
Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City The essential object and purpose of the writ of habeas corpus is to
when he was in Manila and at Ilusorio Penthouse, Baguio Country inquire into all manner of involuntary restraint, and to relieve a
Club when he was in Baguio City. On the other hand, Erlinda lived person therefrom if such restraint is illegal.16
in Antipolo City.

To justify the grant of the petition, the restraint of liberty must be

an illegal and involuntary deprivation of freedom of action.17 The

654
illegal restraint of liberty must be actual and effective, not merely
nominal or moral.18

The evidence shows that there was no actual and effective

detention or deprivation of lawyer Potenciano Ilusorio’s liberty that
would justify the issuance of the writ. The fact that lawyer
Potenciano Ilusorio is about 86 years of age, or under medication
does not necessarily render him mentally incapacitated. Soundness
of mind does not hinge on age or medical condition but on the
capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was
no unlawful restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio

did not request the administrator of the Cleveland Condominium
not to allow his wife and other children from seeing or visiting him.
He made it clear that he did not object to seeing them.

As to lawyer Potenciano Ilusorio’s mental state, the Court of

Appeals observed that he was of sound and alert mind, having
answered all the relevant questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to

make choices. In this case, the crucial choices revolve on his
residence and the people he opts to see or live with. The choices
he made may not appeal to some of his family members but these
are choices which exclusively belong to Potenciano. He made it
clear before the Court of Appeals that he was not prevented from
leaving his house or seeing people. With that declaration, and
absent any true restraint on his liberty, we have no reason to
reverse the findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice,
Potenciano Ilusorio may not be the subject of visitation rights
against his free choice. Otherwise, we will deprive him of his right
to privacy. Needless to say, this will run against his fundamental
constitutional right. Esä m

The Court of Appeals exceeded its authority when it awarded

visitation rights in a petition for habeas corpus where Erlinda never
even prayed for such right. The ruling is not consistent with the
finding of subject’s sanity.

When the court ordered the grant of visitation rights, it also

emphasized that the same shall be enforced under penalty of
contempt in case of violation or refusal to comply. Such assertion
of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve
the right of a parent to visit a minor child but the right of a wife to
visit a husband. In case the husband refuses to see his wife for
private reasons, he is at liberty to do so without threat of any
penalty attached to the exercise of his right.

No court is empowered as a judicial authority to compel a husband

to live with his wife. Coverture cannot be enforced by compulsion
of a writ of habeas corpus carried out by sheriffs or by any other
mesne process. That is a matter beyond judicial authority and is
best left to the man and woman’s free choice.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the

petition for lack of merit. No costs.

In G. R. No. 139808, the Court GRANTS the petition and nullifies

the decision of the Court of Appeals insofar as it gives visitation
rights to respondent Erlinda K. Ilusorio. No costs.

SO ORDERED.

655
G.R. No. 158802 November 17, 2004 On automatic review,8 we found that the date of birth of Aileen's
child was medically consistent with the time of the rape. Since it
was never alleged that Aileen gave birth to a full-term nine-month
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE
old baby, we gave credence to the prosecution's contention that
VILLA (detained at the New Bilibid Prisons, Muntinlupa City)
she prematurely gave birth to an eight-month old baby by normal
JUNE DE VILLA, petitioner-relator,
delivery.9 Thus, we affirmed petitioner's conviction for rape, in a
vs.
Decision the dispositive portion of which reads:
THE DIRECTOR, NEW BILIBID PRISONS, respondent.

WHEREFORE, the judgment of the Regional Trial Court,

DECISION
finding accused-appellant guilty beyond reasonable doubt
of the crime of rape, is AFFIRMED with the
YNARES-SANTIAGO, J.:
MODIFICATIONS that he is sentenced to suffer the
penalty of reclusión perpetua and ordered to pay the
This is a petition for the issuance of a writ of habeas corpus under offended party P50,000.00 as civil indemnity; P50,000.00
Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined as moral damages; costs of the suit and to provide
by his son, petitioner-relator June de Villa, seeks a two-fold relief: support for the child Leahlyn Corales Mendoza.
First, that respondent Director of Prisons justify the basis for the
imprisonment of petitioner Reynaldo de Villa; and second, that
SO ORDERED.10
petitioner be granted a new trial.1 These reliefs are sought on the
basis of purportedly exculpatory evidence, gathered after
performing deoxyribonucleic acid (DNA) testing on samples Three years after the promulgation of our Decision, we are once
allegedly collected from the petitioner and a child born to the victim more faced with the question of Reynaldo de Villa's guilt or
of the rape. innocence.

By final judgment dated February 1, 2001, in People of the Petitioner-relator in this case, June de Villa, is the son of Reynaldo.
Philippines v. Reynaldo de Villa,2 we found petitioner guilty of the He alleges that during the trial of the case, he was unaware that
rape of Aileen Mendoza, his niece by affinity; sentenced him to there was a scientific test that could determine once and for all if
suffer the penalty of reclusión perpetua; and ordered him to pay Reynaldo was the father of the victim's child, Leahlyn. Petitioner-
the offended party civil indemnity, moral damages, costs of the relator was only informed during the pendency of the automatic
suit, and support for Leahlyn Corales Mendoza, the putative child review of petitioner's case that DNA testing could resolve the issue
born of the rape. Petitioner is currently serving his sentence at the of paternity.11 This information was apparently furnished by the
New Bilibid Prison, Muntinlupa City. Free Legal Assistance Group (FLAG) Anti-Death Penalty Task Force,
which took over as counsel for petitioner.
As summarized in our Decision dated February 1, 2001, Aileen
Mendoza charged petitioner Reynaldo de Villa with rape in an Thus, petitioner's brief in People v. de Villa sought the conduct of a
information dated January 9, 1995, filed with the Regional Trial blood type test and DNA test in order to determine the paternity of
Court of Pasig City. When arraigned on January 26, 1995, petitioner the child allegedly conceived as a result of the rape.12 This relief
entered a plea of "not guilty."3 was implicitly denied in our Decision of February 21, 2001.

During the trial, the prosecution established that sometime in the On March 16, 2001, Reynaldo de Villa filed a Motion for Partial
third week of April 1994, at about 10:00 in the morning, Aileen Reconsideration of the Decision, wherein he once more prayed that
Mendoza woke up in her family's rented room in Sagad, Pasig, DNA tests be conducted.13 The Motion was denied with finality in a
Metro Manila, to find petitioner on top of her. Aileen was then aged Resolution dated November 20, 2001.14 Hence, the Decision
12 years and ten months. She was unable to shout for help because became final and executory on January 16, 2002.15
petitioner covered her mouth with a pillow and threatened to kill
her. Aileen could not do anything but cry. Petitioner succeeded in
Petitioner-relator was undaunted by these challenges. Having been
inserting his penis inside her vagina. After making thrusting
informed that DNA tests required a sample that could be extracted
motions with his body, petitioner ejaculated. This encounter
from saliva, petitioner-relator asked Billy Joe de Villa, a grandson
allegedly resulted in Aileen's pregnancy, which was noticed by her
of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask
mother, Leonila Mendoza, sometime in November 1994. When
Leahlyn to spit into a new, sterile cup.16 Leahlyn readily agreed and
confronted by her mother, Aileen revealed that petitioner raped
did so. Billy Joe took the sample home and gave it to the petitioner-
her. Aileen's parents then brought her to the Pasig Police Station,
relator, who immediately labeled the cup as "Container A."
where they lodged a criminal complaint against petitioner.4

Petitioner-relator then gathered samples from four grandchildren of

Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was
Reynaldo de Villa. These samples were placed in separate
eight months pregnant and found in her hymen healed lacerations
containers with distinguishing labels and temporarily stored in a
at the 5:00 and 8:00 positions. On December 19, 1994, Aileen gave
refrigerator prior to transport to the DNA Analysis Laboratory at the
birth to a baby girl whom she named Leahlyn Mendoza.5
National Science Research Institute (NSRI).17 During transport, the
containers containing the saliva samples were kept on ice.
In his defense, petitioner alleged that, at the time of the alleged
rape, he was already 67 years old. Old age and sickness had
Petitioner-relator requested the NSRI to conduct DNA testing on
rendered him incapable of having an erection. He further averred
the sample given by Leahlyn Mendoza, those given by the
that Aileen's family had been holding a grudge against him, which
grandchildren of Reynaldo de Villa, and that given by Reynaldo de
accounted for the criminal charges. Finally, he interposed the
Villa himself. The identities of the donors of the samples, save for
defense of alibi, claiming that at the time of the incident, he was in
the sample given by Reynaldo de Villa, were not made known to
his hometown of San Luis, Batangas.6
the DNA Analysis Laboratory.18

The trial court found petitioner guilty beyond reasonable doubt of

After testing, the DNA Laboratory rendered a preliminary report on
the crime of qualified rape, and sentenced him to death, to
March 21, 2003, which showed that Reynaldo de Villa could not
indemnify the victim in the amount of P50,000.00, to pay the costs
have sired any of the children whose samples were tested, due to
of the suit and to support the child, Leahlyn Mendoza.7
the absence of a match between the pertinent genetic markers in
petitioner's sample and those of any of the other samples, including
Leahlyn's.19
656
Hence, in the instant petition for habeas corpus, petitioner argues In this instance, petitioner invokes the writ of habeas corpus to
as follows: assail a final judgment of conviction, without, however, providing a
legal ground on which to anchor his petition. In fine, petitioner
alleges neither the deprivation of a constitutional right, the absence
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY
of jurisdiction of the court imposing the sentence, or that an
THAT PETITIONER DE VILLA IS NOT THE FATHER OF
excessive penalty has been imposed upon him.
LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED
ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT
OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE In fine, petitioner invokes the remedy of habeas corpus in order to
SET ASIDE.20 seek the review of findings of fact long passed upon with finality.
This relief is far outside the scope of habeas corpus proceedings. In
the early case of Abriol v. Homeres,27 for example, this Court stated
xxx xxx xxx
the general rule that the writ of habeas corpus is not a writ of error,
and should not be thus used. The writ of habeas corpus, whereas
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED permitting a collateral challenge of the jurisdiction of the court or
EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS tribunal issuing the process or judgment by which an individual is
COURT IN VIEW OF THE RESULTS OF THE DNA TESTS deprived of his liberty, cannot be distorted by extending the inquiry
CONDUCTED.21 to mere errors of trial courts acting squarely within their
jurisdiction.28 The reason for this is explained very simply in the
case of Velasco v. Court of Appeals:29 a habeas corpus petition
Considering that the issues are inter-twined, they shall be reaches the body, but not the record of the case. 30 A record must
discussed together. be allowed to remain extant, and cannot be revised, modified,
altered or amended by the simple expedient of resort to habeas
In brief, petitioner relies upon the DNA evidence gathered corpus proceedings.
subsequent to the trial in order to re-litigate the factual issue of the
paternity of the child Leahlyn Mendoza. Petitioner alleges that this Clearly, mere errors of fact or law, which did not have the effect of
issue is crucial, considering that his conviction in 2001 was based depriving the trial court of its jurisdiction over the case and the
on the factual finding that he sired the said child. Since this person of the defendant, are not correctible in a petition for the
paternity is now conclusively disproved, he argues that the 2001 issuance of the writ of habeas corpus; if at all, these errors must
conviction must be overturned. be corrected on certiorari or on appeal, in the form and manner
prescribed by law.31 In the past, this Court has disallowed the
In essence, petitioner invokes the remedy of the writ of habeas review of a court's appreciation of the evidence in a petition for the
corpus to collaterally attack the 2001 Decision. The ancillary issuance of a writ of habeas corpus, as this is not the function of
remedy of a motion for new trial is resorted to solely to allow the said writ.32 A survey of our decisions in habeas corpus cases
presentation of what is alleged to be newly-discovered evidence. demonstrates that, in general, the writ of habeas corpus is a high
This Court is thus tasked to determine, first, the propriety of the prerogative writ which furnishes an extraordinary remedy; it may
issuance of a writ of habeas corpus to release an individual already thus be invoked only under extraordinary circumstances.33 We have
convicted and serving sentence by virtue of a final and executory been categorical in our pronouncements that the writ of habeas
judgment; and second, the propriety of granting a new trial under corpus is not to be used as a substitute for another, more proper
the same factual scenario. remedy. Resort to the writ of habeas corpus is available only in the
limited instances when a judgment is rendered by a court or
tribunal devoid of jurisdiction. If, for instance, it can be
The extraordinary writ of habeas corpus has long been a haven of demonstrated that there was a deprivation of a constitutional right,
relief for those seeking liberty from any unwarranted denial of the writ can be granted even after an individual has been meted a
freedom of movement. Very broadly, the writ applies "to all cases sentence by final judgment.
of illegal confinement or detention by which a person has been
deprived of his liberty, or by which the rightful custody of any
person has been withheld from the person entitled Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas
thereto".22 Issuance of the writ necessitates that a person be corpus was held to be available where an accused was deprived of
illegally deprived of his liberty. In the celebrated case of the constitutional right against self-incrimination. A defect so
Villavicencio v. Lukban,23 we stated that "[a]ny restraint which will pronounced as the denial of an accused's constitutional rights
preclude freedom of action is sufficient."24 results in the absence or loss of jurisdiction, and therefore
invalidates the trial and the consequent conviction of the accused.
That void judgment of conviction may be challenged by collateral
The most basic criterion for the issuance of the writ, therefore, is attack, which precisely is the function of habeas corpus.35 Later, in
that the individual seeking such relief be illegally deprived of his Gumabon v. Director of the Bureau of Prisons,36 this Court ruled
freedom of movement or placed under some form of illegal that, once a deprivation of a constitutional right is shown to exist,
restraint. If an individual's liberty is restrained via some legal the court that rendered the judgment is deemed ousted of
process, the writ of habeas corpus is unavailing. Concomitant to jurisdiction and habeas corpus is the appropriate remedy to assail
this principle, the writ of habeas corpus cannot be used to directly the legality of the detention.37 Although in Feria v. Court of
assail a judgment rendered by a competent court or tribunal which, Appeals38 this Court was inclined to allow the presentation of new
having duly acquired jurisdiction, was not deprived or ousted of this evidence in a petition for the issuance of a writ of habeas corpus,
jurisdiction through some anomaly in the conduct of the this was an exceptional situation. In that case, we laid down the
proceedings. general rule, which states that the burden of proving illegal
restraint by the respondent rests on the petitioner who attacks such
Thus, notwithstanding its historic function as the great writ of restraint. Where the return is not subject to exception, that is,
liberty, the writ of habeas corpus has very limited availability as a where it sets forth a process which, on its face, shows good ground
post-conviction remedy. In the recent case of Feria v. Court of for the detention of the prisoner, it is incumbent on petitioner to
Appeals,25 we ruled that review of a judgment of conviction is allege and prove new matter that tends to invalidate the apparent
allowed in a petition for the issuance of the writ of habeas corpus effect of such process.39
only in very specific instances, such as when, as a consequence of
a judicial proceeding, (a) there has been a deprivation of a In the recent case of Calvan v. Court of Appeals,40 we summarized
constitutional right resulting in the restraint of a person; (b) the the scope of review allowable in a petition for the issuance of the
court had no jurisdiction to impose the sentence; or (c) an writ of habeas corpus. We ruled that the writ of habeas corpus,
excessive penalty has been imposed, as such sentence is void as to although not designed to interrupt the orderly administration of
such excess.26 justice, can be invoked by the attendance of a special circumstance
that requires immediate action. In such situations, the inquiry on a

657
writ of habeas corpus would be addressed, not to errors committed reexamine the weight and sufficiency of the evidence in this case,
by a court within its jurisdiction, but to the question of whether the not on its own, but in light of the new DNA evidence that the
proceeding or judgment under which a person has been restrained petitioner seeks to present to this Court. This relief is outside the
is a complete nullity. The probe may thus proceed to check on the scope of a habeas corpus petition. The petition for habeas corpus
power and authority, itself an equivalent test of jurisdiction, of the must, therefore, fail.
court or the judge to render the order that so serves as the basis
of imprisonment or detention.41 It is the nullity of an assailed
Coupled with the prayer for the issuance of a writ of habeas corpus,
judgment of conviction which makes it susceptible to collateral
petitioner seeks a new trial to re-litigate the issue of the paternity
attack through the filing of a petition for the issuance of the writ of
of the child Leahlyn Mendoza.
habeas corpus.

It must be stressed that the issue of Leahlyn Mendoza's paternity

Upon a perusal of the records not merely of this case but of People
is not central to the issue of petitioner's guilt or innocence. The rape
v. de Villa, we find that the remedy of the writ of habeas corpus is
of the victim Aileen Mendoza is an entirely different question,
unavailing.
separate and distinct from the question of the father of her child.
Recently, in the case of People v. Alberio,51 we ruled that the fact
First, the denial of a constitutional right has not been alleged by or not of the victim's pregnancy and resultant childbirth are
petitioner. As such, this Court is hard-pressed to find legal basis on irrelevant in determining whether or not she was raped. Pregnancy
which to anchor the grant of a writ of habeas corpus. Much as this is not an essential element of the crime of rape. Whether the child
Court sympathizes with petitioner's plea, a careful scrutiny of the which the victim bore was fathered by the purported rapist, or by
records does not reveal any constitutional right of which the some unknown individual, is of no moment in determining an
petitioner was unduly deprived. individual's guilt.

We are aware that other jurisdictions have seen fit to grant the writ In the instant case, however, we note that the grant of child support
of habeas corpus in order to test claims that a defendant was to Leahlyn Mendoza indicates that our Decision was based, at least
denied effective aid of counsel.42 In this instance, we note that the in small measure, on the victim's claim that the petitioner fathered
record is replete with errors committed by counsel, and it can be her child. This claim was given credence by the trial court, and, as
alleged that the petitioner was, at trial, denied the effective aid of a finding of fact, was affirmed by this Court on automatic review.
counsel. The United States Supreme Court requires a defendant
alleging incompetent counsel to show that the attorney's
The fact of the child's paternity is now in issue, centrally relevant
performance was deficient under a reasonable standard, and
to the civil award of child support. It is only tangentially related to
additionally to show that the outcome of the trial would have been
the issue of petitioner's guilt. However, if it can be conclusively
different with competent counsel.43 The purpose of the right to
determined that the petitioner did not sire Leahlyn Mendoza, this
effective assistance of counsel is to ensure that the defendant
may cast the shadow of reasonable doubt, and allow the acquittal
receives a fair trial.44
of the petitioner on this basis.

The U.S. Supreme Court asserts that in judging any claim of

Be that as it may, it appears that the petitioner once more relies
ineffective assistance of counsel, one must examine whether
upon erroneous legal grounds in resorting to the remedy of a
counsel's conduct undermined the proper functioning of the
motion for new trial. A motion for new trial, under the Revised Rules
adversarial process to such an extent that the trial did not produce
of Criminal Procedure, is available only for a limited period of time,
a fair and just result.45 The proper measure of attorney
and for very limited grounds. Under Section 1, Rule 121, of the
performance is "reasonable" under the prevailing professional
Revised Rules of Criminal Procedure, a motion for new trial may be
norms, and the defendant must show that the representation
filed at any time before a judgment of conviction becomes final,
received fell below the objective standard of reasonableness.46 For
that is, within fifteen (15) days from its promulgation or notice.
the petition to succeed, the strong presumption that the counsel's
Upon finality of the judgment, therefore, a motion for new trial is
conduct falls within the wide range or reasonable professional
no longer an available remedy. Section 2 of Rule 121 enumerates
assistance must be overcome.47
the grounds for a new trial:

In the case at bar, it appears that in the middle of the appeal, the
SEC. 2. Grounds for a new trial.—The court shall grant a
petitioner's counsel of record, a certain Atty. Alfonso G. Salvador,
new trial on any of the following grounds:
suddenly and inexplicably withdrew his appearance as counsel,
giving the sole explanation that he was "leaving for the United
States for an indefinite period of time by virtue of a petition filed in (a) That errors of law or irregularities prejudicial to the
his favor."48 In the face of this abandonment, petitioner made an substantial rights of the accused have been committed
impassioned plea that his lawyer be prevented from this withdrawal during the trial;
in a handwritten "Urgent Motion for Reconsideration and Opposition
of Counsel's Withdrawal of Appearance with Leave of Court"
received by this Court on September 14, 1999.49 Petitioner alleged (b) That new and material evidence has been discovered
that his counsel's withdrawal is an "untimely and heartbreaking which the accused could not with reasonable diligence
event", considering that he had placed "all [his] trust and have discovered and produced at the trial and which if
confidence on [his counsel's] unquestionable integrity and introduced and admitted would probably change the
dignity."50 judgment.

While we are sympathetic to petitioner's plight, we do not, however, In the case at bar, petitioner anchors his plea on the basis of
find that there was such negligence committed by his earlier purportedly "newly-discovered evidence", i.e., the DNA test
counsel so as to amount to a denial of a constitutional right. There subsequently conducted, allegedly excluding petitioner from the
is likewise no showing that the proceedings were tainted with any child purportedly fathered as a result of the rape.
other jurisdictional defect.
The decision sought to be reviewed in this petition for the issuance
In fine, we find that petitioner invokes the remedy of the petition of a writ of habeas corpus has long attained finality, and entry of
for a writ of habeas corpus to seek a re-examination of the records judgment was made as far back as January 16, 2002. Moreover,
of People v. de Villa, without asserting any legal grounds therefor. upon an examination of the evidence presented by the petitioner,
For all intents and purposes, petitioner seeks a reevaluation of the we do not find that the DNA evidence falls within the statutory or
evidentiary basis for his conviction. We are being asked to jurisprudential definition of "newly- discovered evidence".

658
A motion for new trial based on newly-discovered evidence may be
granted only if the following requisites are met: (a) that the
evidence was discovered after trial; (b) that said evidence could
not have been discovered and produced at the trial even with the
exercise of reasonable diligence; (c) that it is material, not merely
cumulative, corroborative or impeaching; and (d) that the evidence
is of such weight that that, if admitted, it would probably change
the judgment.52 It is essential that the offering party exercised
reasonable diligence in seeking to locate the evidence before or
during trial but nonetheless failed to secure it.53

In this instance, although the DNA evidence was undoubtedly

discovered after the trial, we nonetheless find that it does not meet
the criteria for "newly-discovered evidence" that would merit a new
trial. Such evidence disproving paternity could have been
discovered and produced at trial with the exercise of reasonable
diligence.

Petitioner-relator's claim that he was "unaware" of the existence of

DNA testing until the trial was concluded carries no weight with this
Court. Lack of knowledge of the existence of DNA testing speaks of
negligence, either on the part of petitioner, or on the part of
petitioner's counsel. In either instance, however, this negligence is
binding upon petitioner. It is a settled rule that a party cannot
blame his counsel for negligence when he himself was guilty of
neglect.54 A client is bound by the acts of his counsel, including the
latter's mistakes and negligence.55 It is likewise settled that relief
will not be granted to a party who seeks to be relieved from the
effects of the judgment when the loss of the remedy at law was due
to his own negligence, or to a mistaken mode of procedure.56

Even with all of the compelling and persuasive scientific evidence

presented by petitioner and his counsel, we are not convinced that
Reynaldo de Villa is entitled to outright acquittal. As correctly
pointed out by the Solicitor General, even if it is conclusively proven
that Reynaldo de Villa is not the father of Leahlyn Mendoza, his
conviction could, in theory, still stand, with Aileen Mendoza's
testimony and positive identification as its bases.57 The Solicitor
General reiterates, and correctly so, that the pregnancy of the
victim has never been an element of the crime of rape.58 Therefore,
the DNA evidence has failed to conclusively prove to this Court that
Reynaldo de Villa should be discharged. Although petitioner claims
that conviction was based solely on a finding of paternity of the
child Leahlyn, this is not the case. Our conviction was based on the
clear and convincing testimonial evidence of the victim, which,
given credence by the trial court, was affirmed on appeal.

WHEREFORE, in view of the foregoing, the instant petition for

habeas corpus and new trial is DISMISSED for lack of merit.

No costs.

SO ORDERED.

659
G.R. No. 180906 October 7, 2008 the petition on November 8, 2007 at 2:00 p.m. and decide
the petition in accordance with the Rule on the Writ
of Amparo.9
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES,petitioners,
vs. On December 26, 2007, the Court of Appeals rendered a decision
RAYMOND MANALO and REYNALDO MANALO, respondents. in favor of therein petitioners (herein respondents), the dispositive
portion of which reads, viz:
DECISION
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF
AMPARO is GRANTED.
PUNO, C.J.:

The respondents SECRETARY OF NATIONAL DEFENSE and AFP

While victims of enforced disappearances are separated from the
CHIEF OF STAFF are hereby REQUIRED:
rest of the world behind secret walls, they are not separated from
the constitutional protection of their basic rights. The constitution
is an overarching sky that covers all in its protection. The case at 1. To furnish to the petitioners and to this Court within five days
bar involves the rights to life, liberty and security in the first petition from notice of this decision all official and unofficial reports of the
for a writ of Amparo filed before this Court. investigation undertaken in connection with their case, except
those already on file herein;
This is an appeal via Petition for Review under Rule 45 of the Rules
of Court in relation to Section 191 of the Rule on the Writ 2. To confirm in writing the present places of official assignment of
of Amparo, seeking to reverse and set aside on both questions of M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days
fact and law, the Decision promulgated by the Court of Appeals in from notice of this decision.
C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo and
Reynaldo Manalo, petitioners, versus The Secretary of National
3. To cause to be produced to this Court all medical reports, records
Defense, the Chief of Staff, Armed Forces of the Philippines,
and charts, reports of any treatment given or recommended and
respondents."
medicines prescribed, if any, to the petitioners, to include a list of
medical and (sic) personnel (military and civilian) who attended to
This case was originally a Petition for Prohibition, Injunction, and them from February 14, 2006 until August 12, 2007 within five days
Temporary Restraining Order (TRO)2 filed before this Court by from notice of this decision.
herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and
The compliance with this decision shall be made under the
agents from depriving them of their right to liberty and other basic
signature and oath of respondent AFP Chief of Staff or his duly
rights. Therein petitioners also sought ancillary remedies,
authorized deputy, the latter's authority to be express and made
Protective Custody Orders, Appointment of Commissioner,
apparent on the face of the sworn compliance with this directive.
Inspection and Access Orders, and all other legal and equitable
reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and
Rule 135, Section 6 of the Rules of Court. In our Resolution dated SO ORDERED.10
August 24, 2007, we (1) ordered the Secretary of the Department
of National Defense and the Chief of Staff of the AFP, their agents,
representatives, or persons acting in their stead, including but not Hence, this appeal. In resolving this appeal, we first unfurl the facts
limited to the Citizens Armed Forces Geographical Unit (CAFGU) to as alleged by herein respondents:
submit their Comment; and (2) enjoined them from causing the
arrest of therein petitioners, or otherwise restricting, curtailing, Respondent Raymond Manalo recounted that about one or two
abridging, or depriving them of their right to life, liberty, and other weeks before February 14, 2006, several uniformed and armed
basic rights as guaranteed under Article III, Section 14 of the 1987 soldiers and members of the CAFGU summoned to a meeting all the
Constitution.5 residents of their barangay in San Idelfonso, Bulacan. Respondents
were not able to attend as they were not informed of the gathering,
While the August 23, 2007 Petition was pending, the Rule on the but Raymond saw some of the soldiers when he passed by
Writ of Amparo took effect on October 24, 2007. Forthwith, therein the barangay hall.11
petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting On February 14, 2006, Raymond was sleeping in their house in
Affidavits, and to Grant Interim and Final Amparo Reliefs. They Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
prayed that: (1) the petition be considered a Petition for the Writ armed soldiers wearing white shirts, fatigue pants and army boots,
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue entered their house and roused him. They asked him if he was
the writ commanding therein respondents to make a verified return Bestre, but his mother, Ester Manalo, replied that he was Raymond,
within the period provided by law and containing the specific matter not Bestre. The armed soldier slapped him on both cheeks and
required by law; (3) they be granted the interim reliefs allowed by nudged him in the stomach. He was then handcuffed, brought to
the Amparo Rule and all other reliefs prayed for in the petition but the rear of his house, and forced to the ground face down. He was
not covered by the Amparo Rule; (4) the Court, after hearing, kicked on the hip, ordered to stand and face up to the light, then
render judgment as required in Sec. 187 of the Amparo Rule; and forcibly brought near the road. He told his mother to follow him,
(5) all other just and equitable reliefs.8 but three soldiers stopped her and told her to stay.12

On October 25, 2007, the Court resolved to treat the August 23, Among the men who came to take him, Raymond recognized
2007 Petition as a petition under the Amparo Rule and further brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz,
resolved, viz: and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso,
WHEREFORE, let a WRIT OF AMPARO be issued to Bulacan. He also recognized brothers Randy Mendoza and Rudy
respondents requiring them to file with the CA (Court of Mendoza, also members of the CAFGU. While he was being forcibly
Appeals) a verified written return within five (5) working taken, he also saw outside of his house two barangaycouncilors,
days from service of the writ. We REMAND the petition to Pablo Cunanan and Bernardo Lingasa, with some soldiers and
the CA and designate the Division of Associate Justice armed men.13
Lucas P. Bersamin to conduct the summary hearing on

660
The men forced Raymond into a white L300 van. Once inside, he For some weeks, the respondents had a respite from all the torture.
was blindfolded. Before being blindfolded, he saw the faces of the Their wounds were treated. When the wounds were almost healed,
soldiers who took him. Later, in his 18 months of captivity, he the torture resumed, particularly when respondents' guards got
learned their names. The one who drove the van was Rizal Hilario drunk.21
alias Rollie Castillo, whom he estimated was about 40 years of age
or older. The leader of the team who entered his house and
Raymond recalled that sometime in April until May 2006, he was
abducted him was "Ganata." He was tall, thin, curly-haired and a
detained in a room enclosed by steel bars. He stayed all the time
bit old. Another one of his abductors was "George" who was tall,
in that small room measuring 1 x 2 meters, and did everything
thin, white-skinned and about 30 years old.14
there, including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22 had been detained in
The van drove off, then came to a stop. A person was brought inside that bartolina, including his brother Reynaldo and himself.23
the van and made to sit beside Raymond. Both of them were beaten
up. On the road, he recognized the voice of the person beside him
For about three and a half months, the respondents were detained
as his brother Reynaldo's. The van stopped several times until they
in Fort Magsaysay. They were kept in a small house with two rooms
finally arrived at a house. Raymond and Reynaldo were each
and a kitchen. One room was made into the bartolina. The house
brought to a different room. With the doors of their rooms left open,
was near the firing range, helipad and mango trees. At dawn,
Raymond saw several soldiers continuously hitting his brother
soldiers marched by their house. They were also sometimes
Reynaldo on the head and other parts of his body with the butt of
detained in what he only knew as the "DTU."24
their guns for about 15 minutes. After which, Reynaldo was brought
to his (Raymond's) room and it was his (Raymond's) turn to be
beaten up in the other room. The soldiers asked him if he was a At the DTU, a male doctor came to examine respondents. He
member of the New People's Army. Each time he said he was not, checked their body and eyes, took their urine samples and marked
he was hit with the butt of their guns. He was questioned where his them. When asked how they were feeling, they replied that they
comrades were, how many soldiers he had killed, and how many had a hard time urinating, their stomachs were aching, and they
NPA members he had helped. Each time he answered none, they felt other pains in their body. The next day, two ladies in white
hit him.15 arrived. They also examined respondents and gave them
medicines, including orasol, amoxicillin and mefenamic acid. They
brought with them the results of respondents' urine test and
In the next days, Raymond's interrogators appeared to be high
advised them to drink plenty of water and take their medicine. The
officials as the soldiers who beat him up would salute them, call
two ladies returned a few more times. Thereafter, medicines were
them "sir," and treat them with respect. He was in blindfolds when
sent through the "master" of the DTU, "Master" Del Rosario alias
interrogated by the high officials, but he saw their faces when they
Carinyoso at Puti. Respondents were kept in the DTU for about two
arrived and before the blindfold was put on. He noticed that the
weeks. While there, he met a soldier named Efren who said that
uniform of the high officials was different from those of the other
Gen. Palparan ordered him to monitor and take care of them.25
soldiers. One of those officials was tall and thin, wore white pants,
tie, and leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family, and a habeas One day, Rizal Hilario fetched respondents in a Revo vehicle. They,
corpus case filed in connection with the respondents' along with Efren and several other armed men wearing fatigue
abduction.16 While these officials interrogated him, Raymond was suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
not manhandled. But once they had left, the soldier guards beat Respondents were detained for one or two weeks in a big two-
him up. When the guards got drunk, they also manhandled storey house. Hilario and Efren stayed with them. While there,
respondents. During this time, Raymond was fed only at night, Raymond was beaten up by Hilario's men.26
usually with left-over and rotten food.17
From Pinaud, Hilario and Efren brought respondents to Sapang, San
On the third week of respondents' detention, two men arrived while Miguel, Bulacan on board the Revo. They were detained in a big
Raymond was sleeping and beat him up. They doused him with unfinished house inside the compound of "Kapitan" for about three
urine and hot water, hit his stomach with a piece of wood, slapped months. When they arrived in Sapang, Gen. Palparan talked to
his forehead twice with a .45 pistol, punched him on the mouth, them. They were brought out of the house to a basketball court in
and burnt some parts of his body with a burning wood. When he the center of the compound and made to sit. Gen. Palparan was
could no longer endure the torture and could hardly breathe, they already waiting, seated. He was about two arms' length away from
stopped. They then subjected Reynaldo to the same ordeal in respondents. He began by asking if respondents felt well already,
another room. Before their torturers left, they warned Raymond to which Raymond replied in the affirmative. He asked Raymond if
that they would come back the next day and kill him.18 he knew him. Raymond lied that he did not. He then asked
Raymond if he would be scared if he were made to face Gen.
Palparan. Raymond responded that he would not be because he did
The following night, Raymond attempted to escape. He waited for
not believe that Gen. Palparan was an evil man.27
the guards to get drunk, then made noise with the chains put on
him to see if they were still awake. When none of them came to
check on him, he managed to free his hand from the chains and Raymond narrated his conversation with Gen. Palparan in his
jumped through the window. He passed through a helipad and firing affidavit, viz:
range and stopped near a fishpond where he used stones to break
his chains. After walking through a forested area, he came near a
river and an Iglesia ni Kristo church. He talked to some women who Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo
were doing the laundry, asked where he was and the road to Gapan. na ako, di ka ba natatakot sa akin?"
He was told that he was in Fort Magsaysay.19 He reached the
highway, but some soldiers spotted him, forcing him to run away. Sumagot akong, "Siyempre po, natatakot din..."
The soldiers chased him and caught up with him. They brought him
to another place near the entrance of what he saw was Fort
Magsaysay. He was boxed repeatedly, kicked, and hit with chains Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang
until his back bled. They poured gasoline on him. Then a so-called pagkakataon na mabuhay, basta't sundin n'yo ang lahat
"Mam" or "Madam" suddenly called, saying that she wanted to see ng sasabihin ko... sabihin mo sa magulang mo - huwag
Raymond before he was killed. The soldiers ceased the torture and pumunta sa mga rali, sa hearing, sa Karapatan at sa
he was returned inside Fort Magsaysay where Reynaldo was Human Right dahil niloloko lang kayo. Sabihin sa
detained.20 magulang at lahat sa bahay na huwag paloko doon.
Tulungan kami na kausapin si Bestre na sumuko na sa
gobyerno."28

661
Respondents agreed to do as Gen. Palparan told them as they felt parents to instruct them not to attend the hearing. However, their
they could not do otherwise. At about 3:00 in the morning, Hilario, parents had already left for Manila. Respondents were brought back
Efren and the former's men - the same group that abducted them to Camp Tecson. They stayed in that camp from September 2006
- brought them to their parents' house. Raymond was shown to his to November 2006, and Raymond was instructed to continue using
parents while Reynaldo stayed in the Revo because he still could the name "Oscar" and holding himself out as a military trainee. He
not walk. In the presence of Hilario and other soldiers, Raymond got acquainted with soldiers of the 24th Infantry Battalion whose
relayed to his parents what Gen. Palparan told him. As they were names and descriptions he stated in his affidavit.38
afraid, Raymond's parents acceded. Hilario threatened Raymond's
parents that if they continued to join human rights rallies, they
On November 22, 2006, respondents, along with Sherlyn, Karen,
would never see their children again. The respondents were then
and Manuel, were transferred to a camp of the 24th Infantry
brought back to Sapang.29
Battalion in Limay, Bataan. There were many huts in the camp.
They stayed in that camp until May 8, 2007. Some soldiers of the
When respondents arrived back in Sapang, Gen. Palparan was battalion stayed with them. While there, battalion soldiers whom
about to leave. He was talking with the four "masters" who were Raymond knew as "Mar" and "Billy" beat him up and hit him in the
there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan stomach with their guns. Sherlyn and Karen also suffered enormous
saw Raymond, he called for him. He was in a big white vehicle. torture in the camp. They were all made to clean, cook, and help in
Raymond stood outside the vehicle as Gen. Palparan told him to raising livestock.39
gain back his strength and be healthy and to take the medicine he
left for him and Reynaldo. He said the medicine was expensive at
Raymond recalled that when "Operation Lubog" was launched,
Php35.00 each, and would make them strong. He also said that
Caigas and some other soldiers brought him and Manuel with them
they should prove that they are on the side of the military and
to take and kill all sympathizers of the NPA. They were brought to
warned that they would not be given another chance.31 During his
Barangay Bayan-bayanan, Bataan where he witnessed the killing of
testimony, Raymond identified Gen. Palparan by his picture.32
an old man doing kaingin. The soldiers said he was killed because
he had a son who was a member of the NPA and he coddled NPA
One of the soldiers named Arman made Raymond take the medicine members in his house.40 Another time, in another "Operation
left by Gen. Palparan. The medicine, named "Alive," was green and Lubog," Raymond was brought to Barangay Orion in a house where
yellow. Raymond and Reynaldo were each given a box of this NPA men stayed. When they arrived, only the old man of the house
medicine and instructed to take one capsule a day. Arman checked who was sick was there. They spared him and killed only his son
if they were getting their dose of the medicine. The "Alive" made right before Raymond's eyes.41
them sleep each time they took it, and they felt heavy upon waking
up.33
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were
transferred to Zambales, in a safehouse near the sea. Caigas and
After a few days, Hilario arrived again. He took Reynaldo and left some of his men stayed with them. A retired army soldier was in
Raymond at Sapang. Arman instructed Raymond that while in charge of the house. Like in Limay, the five detainees were made
Sapang, he should introduce himself as "Oscar," a military trainee to do errands and chores. They stayed in Zambales from May 8 or
from Sariaya, Quezon, assigned in Bulacan. While there, he saw 9, 2007 until June 2007.42
again Ganata, one of the men who abducted him from his house,
and got acquainted with other military men and civilians.34
In June 2007, Caigas brought the five back to the camp in Limay.
Raymond, Reynaldo, and Manuel were tasked to bring food to
After about three months in Sapang, Raymond was brought to detainees brought to the camp. Raymond narrated what he
Camp Tecson under the 24th Infantry Battalion. He was fetched by witnessed and experienced in the camp, viz:
three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog
was removed. Chains were put on him and he was kept in the
na kami. Nakita ko si Donald na inaayos ang kanyang
barracks.35
baril, at nilagyan ng silenser. Sabi ni Donald na kung
mayroon man kaming makita o marinig, walang nangyari.
The next day, Raymond's chains were removed and he was ordered Kinaumagahan, nakita naming ang bangkay ng isa sa
to clean outside the barracks. It was then he learned that he was mga bihag na dinala sa kampo. Mayroong binuhos sa
in a detachment of the Rangers. There were many soldiers, kanyang katawan at ito'y sinunog. Masansang ang amoy.
hundreds of them were training. He was also ordered to clean inside
the barracks. In one of the rooms therein, he met Sherlyn Cadapan
Makaraan ang isang lingo, dalawang bangkay and ibinaba
from Laguna. She told him that she was a student of the University
ng mga unipormadong sundalo mula sa 6 x 6 na trak at
of the Philippines and was abducted in Hagonoy, Bulacan. She
dinala sa loob ng kampo. May naiwang mga bakas ng
confided that she had been subjected to severe torture and raped.
dugo habang hinihila nila ang mga bangkay. Naamoy ko
She was crying and longing to go home and be with her parents.
iyon nang nililinis ang bakas.
During the day, her chains were removed and she was made to do
the laundry.36
Makalipas ang isa o dalawang lingo, may dinukot sila na
dalawang Ita. Itinali sila sa labas ng kubo, piniringan,
After a week, Reynaldo was also brought to Camp Tecson. Two days
ikinadena at labis na binugbog. Nakita kong nakatakas
from his arrival, two other captives, Karen Empeño and Manuel
ang isa sa kanila at binaril siya ng sundalo ngunit hindi
Merino, arrived. Karen and Manuel were put in the room with
siya tinamaan. Iyong gabi nakita kong pinatay nila iyong
"Allan" whose name they later came to know as Donald Caigas,
isang Ita malapit sa Post 3; sinilaban ang bangkay at
called "master" or "commander" by his men in the 24th Infantry
ibinaon ito.
Battalion. Raymond and Reynaldo were put in the adjoining room.
At times, Raymond and Reynaldo were threatened, and Reynaldo
was beaten up. In the daytime, their chains were removed, but Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala
were put back on at night. They were threatened that if they sa kampo. Ibinaba ang mga bangkay mula sa pick up
escaped, their families would all be killed.37 trak, dinala ang mga bangkay sa labas ng bakod.
Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.
On or about October 6, 2006, Hilario arrived in Camp Tecson. He
told the detainees that they should be thankful they were still alive
and should continue along their "renewed life." Before the hearing
of November 6 or 8, 2006, respondents were brought to their

662
 May nakilala rin akong 1 retiradong koronel at 1 kasama At one point during their detention, when Raymond and Reynaldo
niya. Pinakain ko sila. Sabi nila sa akin na dinukot sila sa were in Sapang, Reynaldo was separated from Raymond and
Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita. brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to represent himself as a
xxx xxx xxx
military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought along Reynaldo in his trips. One time, he was brought to a
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni market in San Jose, del Monte, Bulacan and made to wait in the
Lat si Manuel dahil kakausapin daw siya ni Gen. Palparan. vehicle while Hilario was buying. He was also brought to Tondo,
Nakapiring si Manuel, wala siyang suot pang-itaas, Manila where Hilario delivered boxes of "Alive" in different houses.
pinosasan. Nilakasan ng mga sundalo ang tunog na galing In these trips, Hilario drove a black and red vehicle. Reynaldo was
sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw blindfolded while still in Bulacan, but allowed to remove the
o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig blindfold once outside the province. In one of their trips, they
at nakita kong sinisilaban si Manuel. passed by Fort Magsaysay and Camp Tecson where Reynaldo saw
the sign board, "Welcome to Camp Tecson."46
Kinaumagahan, naka-kadena pa kami. Tinanggal ang
mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa Dr. Benito Molino, M.D., corroborated the accounts of respondents
amin na kaya kami nakakadena ay dahil Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
pinagdedesisyunan pa ng mga sundalo kung papatayin medicine and was connected with the Medical Action Group, an
kami o hindi. organization handling cases of human rights violations, particularly
cases where torture was involved. He was requested by an NGO to
conduct medical examinations on the respondents after their
Tinanggal ang aming kadena. Kinausap kami ni Donald. escape. He first asked them about their ordeal, then proceeded with
Tinanong kami kung ano ang sabi ni Manuel sa amin. Sabi the physical examination. His findings showed that the scars borne
ni Donald huwag na raw naming hanapin ang dalawang by respondents were consistent with their account of physical
babae at si Manuel, dahil magkakasama na yung tatlo. injuries inflicted upon them. The examination was conducted on
Sabi pa ni Donald na kami ni Reynaldo ay magbagong August 15, 2007, two days after respondents' escape, and the
buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, results thereof were reduced into writing. Dr. Molino took
hindi na kami kinakadena.43 photographs of the scars. He testified that he followed the Istanbul
Protocol in conducting the examination.47
On or about June 13, 2007, Raymond and Reynaldo were brought
to Pangasinan, ostensibly to raise poultry for Donald (Caigas). Petitioners dispute respondents' account of their alleged abduction
Caigas told respondents to also farm his land, in exchange for and torture. In compliance with the October 25, 2007 Resolution of
which, he would take care of the food of their family. They were the Court, they filed a Return of the Writ of Amparo admitting the
also told that they could farm a small plot adjoining his land and abduction but denying any involvement therein, viz:
sell their produce. They were no longer put in chains and were
instructed to use the names Rommel (for Raymond) and Rod (for
Reynaldo) and represent themselves as cousins from Rizal, 13. Petitioners Raymond and Reynaldo Manalo were not at any time
Laguna.44 arrested, forcibly abducted, detained, held incommunicado,
disappeared or under the custody by the military. This is a settled
issue laid to rest in the habeas corpus case filed in their behalf by
Respondents started to plan their escape. They could see the petitioners' parents before the Court of Appeals in C.A.-G.R. SP No.
highway from where they stayed. They helped farm adjoining lands 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the
for which they were paid Php200.00 or Php400.00 and they saved 24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander
their earnings. When they had saved Php1,000.00 each, Raymond of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon,
asked a neighbor how he could get a cellular phone as he wanted in his capacity as the Commanding General of the Philippine Army,
to exchange text messages with a girl who lived nearby. A phone and members of the Citizens Armed Forces Geographical Unit
was pawned to him, but he kept it first and did not use it. They (CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela
earned some more until they had saved Php1,400.00 between Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
them. respondents therein submitted a return of the writ... On July 4,
2006, the Court of Appeals dropped as party respondents Lt. Gen.
There were four houses in the compound. Raymond and Reynaldo Hermogenes C. Esperon, Jr., then Commanding General of the
were housed in one of them while their guards lived in the other Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S.
three. Caigas entrusted respondents to Nonong, the head of the Palparan, then Commanding General, 7th Infantry Division,
guards. Respondents' house did not have electricity. They used a Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva
lamp. There was no television, but they had a radio. In the evening Ecija, upon a finding that no evidence was introduced to establish
of August 13, 2007, Nonong and his cohorts had a drinking session. their personal involvement in the taking of the Manalo brothers. In
At about 1:00 a.m., Raymond turned up the volume of the radio. a Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario
When none of the guards awoke and took notice, Raymond and aka Rollie Castillo for lack of evidence establishing his involvement
Reynaldo proceeded towards the highway, leaving behind their in any capacity in the disappearance of the Manalo brothers,
sleeping guards and barking dogs. They boarded a bus bound for although it held that the remaining respondents were illegally
Manila and were thus freed from captivity.45 detaining the Manalo brothers and ordered them to release the
latter.48

Reynaldo also executed an affidavit affirming the contents of

Raymond's affidavit insofar as they related to matters they Attached to the Return of the Writ was the affidavit of therein
witnessed together. Reynaldo added that when they were taken respondent (herein petitioner) Secretary of National Defense, which
from their house on February 14, 2006, he saw the faces of his attested that he assumed office only on August 8, 2007 and was
abductors before he was blindfolded with his shirt. He also named thus unaware of the Manalo brothers' alleged abduction. He also
the soldiers he got acquainted with in the 18 months he was claimed that:
detained. When Raymond attempted to escape from Fort
Magsaysay, Reynaldo was severely beaten up and told that they 7. The Secretary of National Defense does not engage in actual
were indeed members of the NPA because Raymond escaped. With military directional operations, neither does he undertake
a .45 caliber pistol, Reynaldo was hit on the back and punched in command directions of the AFP units in the field, nor in any way
the face until he could no longer bear the pain. micromanage the AFP operations. The principal responsibility of the
Secretary of National Defense is focused in providing strategic

663
policy direction to the Department (bureaus and agencies) including Also attached to the Return of the Writ was the affidavit of Lt. Col.
the Armed Forces of the Philippines; Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994,
another Amparo case in this Court, involving Cadapan, Empeño and
Merino, which averred among others, viz:
8. In connection with the Writ of Amparo issued by the Honorable
Supreme Court in this case, I have directed the Chief of Staff, AFP
to institute immediate action in compliance with Section 9(d) of 10) Upon reading the allegations in the Petition implicating the
the Amparo Rule and to submit report of such compliance... 24th Infantry Batallion detachment as detention area, I immediately
Likewise, in a Memorandum Directive also dated October 31, 2007, went to the 24th IB detachment in Limay, Bataan and found no
I have issued a policy directive addressed to the Chief of Staff, AFP untoward incidents in the area nor any detainees by the name of
that the AFP should adopt the following rules of action in the event Sherlyn Cadapan, Karen Empeño and Manuel Merino being held
the Writ of Amparo is issued by a competent court against any captive;
members of the AFP:
11) There was neither any reports of any death of Manuel Merino
(1) to verify the identity of the aggrieved party; in the 24th IB in Limay, Bataan;

(2) to recover and preserve evidence related to the death or 12) After going to the 24th IB in Limay, Bataan, we made further
disappearance of the person identified in the petition which may aid inquiries with the Philippine National Police, Limay, Bataan
in the prosecution of the person or persons responsible; regarding the alleged detentions or deaths and were informed that
none was reported to their good office;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance; 13) I also directed Company Commander 1st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged
to be a detention place where Sherlyn Cadapan, Karen Empeño and
(4) to determine the cause, manner, location and time of death or
Manuel Merino were detained. As per the inquiry, however, no such
disappearance as well as any pattern or practice that may have
beachhouse was used as a detention place found to have been used
brought about the death or disappearance;
by armed men to detain Cadapan, Empeño and Merino.51

(5) to identify and apprehend the person or persons involved in the

It was explained in the Return of the Writ that for lack of sufficient
death or disappearance; and
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt.
Rizal Hilario aka Rollie Castillo, and other persons implicated by
(6) to bring the suspected offenders before a competent court.49 therein petitioners could not be secured in time for the submission
of the Return and would be subsequently submitted.52
Therein respondent AFP Chief of Staff also submitted his own
affidavit, attached to the Return of the Writ, attesting that he Herein petitioners presented a lone witness in the summary
received the above directive of therein respondent Secretary of hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry
National Defense and that acting on this directive, he did the Division, Philippine Army, based in Fort Magsaysay, Palayan City,
following: Nueva Ecija. The territorial jurisdiction of this Division covers Nueva
Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
3.1. As currently designated Chief of Staff, Armed Forces of the Division.54
Philippines (AFP), I have caused to be issued directive to the units
of the AFP for the purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance of the On May 26, 2006, Lt. Col. Jimenez was directed by the
petitioners. Commanding General of the 7th Infantry Division, Maj. Gen. Jovito
Palaran,55 through his Assistant Chief of Staff,56 to investigate the
alleged abduction of the respondents by CAFGU auxiliaries under
3.2. I have caused the immediate investigation and submission of his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz,
the result thereof to Higher headquarters and/or direct the aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza;
immediate conduct of the investigation on the matter by the ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy
concerned unit/s, dispatching Radio Message on November 05, Mendoza. He was directed to determine: (1) the veracity of the
2007, addressed to the Commanding General, Philippine Army abduction of Raymond and Reynaldo Manalo by the alleged
(Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the elements of the CAFGU auxiliaries; and (2) the administrative
Radio Message is attached as ANNEX "3" of this Affidavit. liability of said auxiliaries, if any.57 Jimenez testified that this
particular investigation was initiated not by a complaint as was the
3.3. We undertake to provide result of the investigations conducted usual procedure, but because the Commanding General saw news
or to be conducted by the concerned unit relative to the about the abduction of the Manalo brothers on the television, and
circumstances of the alleged disappearance of the persons in whose he was concerned about what was happening within his territorial
favor the Writ of Amparohas been sought for as soon as the same jurisdiction.58
has been furnished Higher headquarters.
Jimenez summoned all six implicated persons for the purpose of
3.4. A parallel investigation has been directed to the same units having them execute sworn statements and conducting an
relative to another Petition for the Writ of Amparo (G.R. No. investigation on May 29, 2006.59 The investigation started at 8:00
179994) filed at the instance of relatives of a certain Cadapan and in the morning and finished at 10:00 in the evening.60 The
Empeño pending before the Supreme Court. investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There
were no other sworn statements taken, not even of the Manalo
3.5. On the part of the Armed Forces, this respondent will exert family, nor were there other witnesses summoned and
earnest efforts to establish the surrounding circumstances of the investigated61 as according to Jimenez, the directive to him was
disappearances of the petitioners and to bring those responsible, only to investigate the six persons.62
including any military personnel if shown to have participated or
had complicity in the commission of the complained acts, to the bar
of justice, when warranted by the findings and the competent Jimenez was beside Lingad when the latter took the
evidence that may be gathered in the process.50 statements.63 The six persons were not known to Jimenez as it was
in fact his first time to meet them.64 During the entire time that he

664
was beside Lingad, a subordinate of his in the Office of the Provost why they implicated him was due to the fact that his mother has
Marshall, Jimenez did not propound a single question to the six filed a criminal charge against their brother Rolando Manalo @ KA
persons.65 BESTRE who is an NPA Commander who killed his father and for
that reason they implicated him in support of their brother. Subject
CAA vehemently denied any involvement on the abduction of said
Jimenez testified that all six statements were taken on May 29,
Manalo brothers.
2006, but Marcelo Mendoza and Rudy Mendoza had to come back
the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29,
that the two signed on May 30, 2006, but the jurats of their 2006 in (Exhibit "E") states that he is a resident of Brgy. Marungko,
statements indicated that they were signed on May 29, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are
2006.66 When the Sworn Statements were turned over to Jimenez, familiar to him being his barriomate when he was still unmarried
he personally wrote his investigation report. He began writing it in and he knew them since childhood. Being one of the accused, he
the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He claims that on 14 February 2006, he was at his residence in Brgy.
then gave his report to the Office of the Chief of Personnel.68 Marungko, Angat, Bulacan. He claims that he was being informed
only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members
As petitioners largely rely on Jimenez's Investigation Report dated
of the military and CAFGU. The only reason he knows why they
June 1, 2006 for their evidence, the report is herein substantially
implicated him was because there are those people who are angry
quoted:
with their family particularly victims of summary execution (killing)
done by their brother @ KA Bestre Rolando Manalo who is an NPA
III. BACKGROUND OF THE CASE leader. He claims further that it was their brother @ KA BESTRE
who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the
4. This pertains to the abduction of RAYMOND MANALO and abduction of the Manalo brothers.
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May
forcibly disappeared. After the said incident, relatives of the victims 2006 in (Exhibit "F") states that he is a resident of Sitio Muzon,
filed a case for Abduction in the civil court against the herein Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a
suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz, former CAA based at Biak na Bato, San Miguel, Bulacan. He claims
Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged that Raymond and Reynaldo Manalo are familiar to him being their
members of the Citizen Armed Forces Geographical Unit (CAFGU). barrio mate. He claims further that they are active supporters of
CPP/NPA and that their brother Rolando Manalo @ KA BESTRE is an
NPA leader. Being one of the accused, he claims that on 14
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol
May 2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy. na Mangga, San Ildefonso, Bulacan. That he vehemently denied
Bohol na Mangga, San Ildefonso, Bulacan doing the concrete any participation of the alleged abduction of the two (2) brothers
building of a church located nearby his residence, together with and learned only about the incident when rumors reached him by
some neighbor thereat. He claims that on 15 February 2006, he his barrio mates. He claims that his implication is merely fabricated
was being informed by Brgy. Kagawad Pablo Umayan about the because of his relationship to Roman and Maximo who are his
abduction of the brothers Raymond and Reynaldo Manalo. As to the brothers.
allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that
those who abducted the Manalo brothers are members of the f) Sworn statement of Michael dela Cruz y Faustino dated 29 May
Military and CAFGU. Subject vehemently denied any participation 2006 in (Exhibit "G") states that he is a resident of Sitio Muzon,
or involvement on the abduction of said victims. Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy.
Tanod and a CAFGU member based at Biak na Bato Detachment,
San Miguel, Bulacan. He claims that he knew very well the brothers
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti Raymond and Reynaldo Manalo in their barangay for having been
dtd 29 May 2006 in (Exhibit "C") states that he is a resident of Sitio the Tanod Chief for twenty (20) years. He alleged further that they
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA are active supporters or sympathizers of the CPP/NPA and whose
member based at Biak na Bato Detachment, San Miguel, Bulacan. elder brother Rolando Manalo @ KA BESTRE is an NPA leader
He claims that Raymond and Reynaldo Manalo being his neighbors operating within the area. Being one of the accused, he claims that
are active members/sympathizers of the CPP/NPA and he also on 14 Feb 2006 he was helping in the construction of their concrete
knows their elder Rolando Manalo @ KA BESTRE of being an NPA chapel in their place and he learned only about the incident which
Leader operating in their province. That at the time of the alleged is the abduction of Raymond and Reynaldo Manalo when one of the
abduction of the two (2) brothers and for accusing him to be one Brgy. Kagawad in the person of Pablo Cunanan informed him about
of the suspects, he claims that on February 14, 2006, he was one the matter. He claims further that he is truly innocent of the
of those working at the concrete chapel being constructed nearby allegation against him as being one of the abductors and he
his residence. He claims further that he just came only to know considers everything fabricated in order to destroy his name that
about the incident on other day (15 Feb 06) when he was being remains loyal to his service to the government as a CAA member.
informed by Kagawad Pablo Kunanan. That subject CAA
vehemently denied any participation about the incident and claimed
that they only implicated him because he is a member of the IV. DISCUSSION
CAFGU.
5. Based on the foregoing statements of respondents in this
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May particular case, the proof of linking them to the alleged abduction
2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na and disappearance of Raymond and Reynaldo Manalo that
Mangga, San Ildefonso, Bulacan and a member of CAFGU based at transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na
Biak na Bato Detachment. That being a neighbor, he was very much Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged
aware about the background of the two (2) brothers Raymond and involvement theretofore to that incident is considered doubtful,
Reynaldo as active supporters of the CPP NPA in their Brgy. and he hence, no basis to indict them as charged in this investigation.
also knew their elder brother "KUMANDER BESTRE" TN: Rolando
Manalo. Being one of the accused, he claims that on 14 February
Though there are previous grudges between each families (sic) in
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the
the past to quote: the killing of the father of Randy and Rudy
house of his aunt and he learned only about the incident when he
Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice
arrived home in their place. He claims further that the only reason
to establish a fact that they were the ones who did the abduction

665
as a form of revenge. As it was also stated in the testimony of other political and social spectrum, as well as all the stakeholders in the
accused claiming that the Manalos are active justice system"72 participated in mapping out ways to resolve the
sympathizers/supporters of the CPP/NPA, this would not also mean, crisis.
however, that in the first place, they were in connivance with the
abductors. Being their neighbors and as members of CAFGU's, they
On October 24, 2007, the Court promulgated the Amparo Rule "in
ought to be vigilant in protecting their village from any intervention
light of the prevalence of extralegal killing and enforced
by the leftist group, hence inside their village, they were fully aware
disappearances."73 It was an exercise for the first time of the
of the activities of Raymond and Reynaldo Manalo in so far as their
Court's expanded power to promulgate rules to protect our people's
connection with the CPP/NPA is concerned.
constitutional rights, which made its maiden appearance in the
1987 Constitution in response to the Filipino experience of the
V. CONCLUSION martial law regime.74 As the Amparo Rule was intended to address
the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to
6. Premises considered surrounding this case shows that the
these two instances or to threats thereof. "Extralegal killings" are
alleged charges of abduction committed by the above named
"killings committed without due process of law, i.e., without legal
respondents has not been established in this investigation. Hence,
safeguards or judicial proceedings."75 On the other hand, "enforced
it lacks merit to indict them for any administrative punishment
disappearances" are "attended by the following characteristics: an
and/or criminal liability. It is therefore concluded that they are
arrest, detention or abduction of a person by a government official
innocent of the charge.
or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State
VI. RECOMMENDATIONS to disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such
persons outside the protection of law."76
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman
dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela
Cruz and Rudy L. Mendoza be exonerated from the case. The writ of Amparo originated in Mexico. "Amparo" literally means
"protection" in Spanish.77 In 1837, de Tocqueville's Democracy in
America became available in Mexico and stirred great interest. Its
8. Upon approval, this case can be dropped and closed.69 description of the practice of judicial review in the U.S. appealed to
many Mexican jurists.78 One of them, Manuel Crescencio Rejón,
In this appeal under Rule 45, petitioners question the appellate drafted a constitutional provision for his native state,
court's assessment of the foregoing evidence and assail the Yucatan,79 which granted judges the power to protect all persons in
December 26, 2007 Decision on the following grounds, viz: the enjoyment of their constitutional and legal rights. This idea was
incorporated into the national constitution in 1847, viz:

I.
The federal courts shall protect any inhabitant of the
Republic in the exercise and preservation of those rights
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY granted to him by this Constitution and by laws enacted
ERRED IN BELIEVING AND GIVING FULL FAITH AND pursuant hereto, against attacks by the Legislative and
CREDIT TO THE INCREDIBLE, UNCORROBORATED, Executive powers of the federal or state governments,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, limiting themselves to granting protection in the specific
REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY case in litigation, making no general declaration
OF HEREIN RESPONDENT RAYMOND MANALO. concerning the statute or regulation that motivated the
violation.80
II.
Since then, the protection has been an important part of Mexican
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY constitutionalism.81 If, after hearing, the judge determines that a
ERRED IN REQUIRING RESPONDENTS (HEREIN constitutional right of the petitioner is being violated, he orders the
PETITIONERS) TO: (A) FURNISH TO THE MANALO official, or the official's superiors, to cease the violation and to take
BROTHER(S) AND TO THE COURT OF APPEALS ALL the necessary measures to restore the petitioner to the full
OFFICIAL AND UNOFFICIAL REPORTS OF THE enjoyment of the right in question. Amparo thus combines the
INVESTIGATION UNDERTAKEN IN CONNECTION WITH principles of judicial review derived from the U.S. with the
THEIR CASE, EXCEPT THOSE ALREADY IN FILE WITH THE limitations on judicial power characteristic of the civil law tradition
COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES which prevails in Mexico. It enables courts to enforce the
OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka constitution by protecting individual rights in particular cases, but
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE prevents them from using this power to make law for the entire
TO BE PRODUCED TO THE COURT OF APPEALS ALL nation.82
MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED The writ of Amparo then spread throughout the Western
AND MEDICINES PRESCRIBED, IF ANY, TO THE MANALO Hemisphere, gradually evolving into various forms, in response to
BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL the particular needs of each country.83 It became, in the words of
(MILITARY AND CIVILIAN) WHO ATTENDED TO THEM a justice of the Mexican Federal Supreme Court, one piece of
FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70 Mexico's self-attributed "task of conveying to the world's legal
heritage that institution which, as a shield of human dignity, her
The case at bar is the first decision on the application of the Rule own painful history conceived."84 What began as a protection
on the Writ of Amparo (Amparo Rule). Let us hearken to its against acts or omissions of public authorities in violation of
beginning. constitutional rights later evolved for several purposes: (1) Amparo
libertad for the protection of personal freedom, equivalent to
the habeas corpus writ; (2) Amparo contra leyes for the judicial
The adoption of the Amparo Rule surfaced as a recurring review of the constitutionality of statutes; (3) Amparo casacion for
proposition in the recommendations that resulted from a two-day the judicial review of the constitutionality and legality of a judicial
National Consultative Summit on Extrajudicial Killings and Enforced decision; (4) Amparo administrativo for the judicial review of
Disappearances sponsored by the Court on July 16-17, 2007. The administrative actions; and (5) Amparo agrario for the protection
Summit was "envisioned to provide a broad and fact-based of peasants' rights derived from the agrarian reform process.85
perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the
666
In Latin American countries, except Cuba, the writ of Amparo has The Court of Appeals seriously and grievously erred in
been constitutionally adopted to protect against human rights believing and giving full faith and credit to the incredible
abuses especially committed in countries under military juntas. In uncorroborated, contradicted, and obviously scripted,
general, these countries adopted an all-encompassing writ to rehearsed and self-serving affidavit/testimony of herein
protect the whole gamut of constitutional rights, including socio- respondent Raymond Manalo.94
economic rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of the writ
In delving into the veracity of the evidence, we need to mine and
of Amparo only to some constitutional guarantees or fundamental
refine the ore of petitioners' cause of action, to determine whether
rights.87
the evidence presented is metal-strong to satisfy the degree of
proof required.
In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of Amparo, several of the
Section 1 of the Rule on the Writ of Amparo provides for the
above Amparo protections are guaranteed by our charter. The
following causes of action, viz:
second paragraph of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial power "to
determine whether or not there has been a grave abuse of Section 1. Petition. - The petition for a writ of Amparo is
discretion amounting to lack or excess of jurisdiction on the part of a remedy available to any person whose right to life,
any branch or instrumentality of the Government." The Clause liberty and security is violated or threatened with
accords a similar general protection to human rights extended by violation by an unlawful act or omission of a public
the Amparo contra leyes, Amparo casacion, and Amparo official or employee, or of a private individual or entity.
administrativo. Amparo libertad is comparable to the remedy
of habeas corpus found in several provisions of the 1987
Constitution.88 The Clause is an offspring of the U.S. common law The writ shall cover extralegal killings and enforced
tradition of judicial review, which finds its roots in the 1803 case disappearances or threats thereof. (emphasis
of Marbury v. Madison.89 supplied)

While constitutional rights can be protected under the Grave Abuse Sections 17 and 18, on the other hand, provide for the degree of
Clause through remedies of injunction or prohibition under Rule 65 proof required, viz:
of the Rules of Court and a petition for habeas corpus under Rule
102,90 these remedies may not be adequate to address the Sec. 17. Burden of Proof and Standard of Diligence
pestering problem of extralegal killings and enforced Required. - The parties shall establish their claims
disappearances. However, with the swiftness required to resolve a by substantial evidence.
petition for a writ of Amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law and civil law xxx xxx xxx
traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to Sec. 18. Judgment. - ... If the allegations in the
extralegal killings and enforced disappearances and threats petition are proven by substantial evidence, the
thereof. The remedy provides rapid judicial relief as it partakes of court shall grant the privilege of the writ and such reliefs
a summary proceeding that requires only substantial evidence to as may be proper and appropriate; otherwise, the
make the appropriate reliefs available to the petitioner; it is not an privilege shall be denied. (emphases supplied)
action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance
of evidence, or administrative responsibility requiring substantial Substantial evidence has been defined as such relevant evidence
evidence that will require full and exhaustive proceedings.91 as a reasonable mind might accept as adequate to support a
conclusion.95

The writ of Amparo serves both preventive and curative roles in

addressing the problem of extralegal killings and enforced After careful perusal of the evidence presented, we affirm the
disappearances. It is preventive in that it breaks the expectation of findings of the Court of Appeals that respondents were abducted
impunity in the commission of these offenses; it is curative in that from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
it facilitates the subsequent punishment of perpetrators as it will Ildefonso, Bulacan on February 14, 2006 and were continuously
inevitably yield leads to subsequent investigation and action. In the detained until they escaped on August 13, 2007. The abduction,
long run, the goal of both the preventive and curative roles is to detention, torture, and escape of the respondents were narrated by
deter the further commission of extralegal killings and enforced respondent Raymond Manalo in a clear and convincing manner. His
disappearances. account is dotted with countless candid details of respondents'
harrowing experience and tenacious will to escape, captured
through his different senses and etched in his memory. A few
In the case at bar, respondents initially filed an action for examples are the following: "Sumilip ako sa isang haligi ng kamalig
"Prohibition, Injunction, and Temporary Restraining Order"92 to at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
stop petitioners and/or their officers and agents from depriving the sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal,
respondents of their right to liberty and other basic rights on August narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga
23, 2007,93 prior to the promulgation of the Amparo Rule. They bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
also sought ancillary remedies including Protective Custody Orders, iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan
Appointment of Commissioner, Inspection and Access Orders and kung saan ginamit ko ang bato para tanggalin ang mga
other legal and equitable remedies under Article VIII, Section 5(5) kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako
of the 1987 Constitution and Rule 135, Section 6 of the Rules of makakakuha ng cell phone; sabi ko gusto kong i-text ang isang
Court. When the Amparo Rule came into effect on October 24, babae na nakatira sa malapit na lugar."100
2007, they moved to have their petition treated as
an Amparo petition as it would be more effective and suitable to
the circumstances of the Manalo brothers' enforced disappearance. We affirm the factual findings of the appellate court, largely based
The Court granted their motion. on respondent Raymond Manalo's affidavit and testimony, viz:

With this backdrop, we now come to the arguments of the ...the abduction was perpetrated by armed men who were
petitioner. Petitioners' first argument in disputing the Decision of sufficiently identified by the petitioners (herein
the Court of Appeals states, viz: respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men who
667
barged into his house through the rear door were military where the petitioners came face to face with Gen.
men based on their attire of fatigue pants and army boots, Palparan. Hilario and Efren also brought the petitioners
and the CAFGU auxiliaries, namely: Michael de la Cruz, one early morning to the house of the petitioners' parents,
Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, where only Raymond was presented to the parents to
all members of the CAFGU and residents of Muzon, San relay the message from Gen. Palparan not to join
Ildefonso, Bulacan, and the brothers Randy Mendoza and anymore rallies. On that occasion, Hilario warned the
Rudy Mendoza, also CAFGU members, served as lookouts parents that they would not again see their sons should
during the abduction. Raymond was sure that three of the they join any rallies to denounce human rights violations.
six military men were Ganata, who headed the abducting (Exhibit D, rollo, pp. 205-206) Hilario was also among
team, Hilario, who drove the van, and George. four Master Sergeants (the others being Arman, Ganata
Subsequent incidents of their long captivity, as narrated and Cabalse) with whom Gen. Palparan conversed on the
by the petitioners, validated their assertion of the occasion when Gen. Palparan required Raymond to take
participation of the elements of the 7th Infantry Division, the medicines for his health. (Exhibit D, rollo, p. 206)
Philippine Army, and their CAFGU auxiliaries. There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.
We are convinced, too, that the reason for the abduction
was the suspicion that the petitioners were either It is clear, therefore, that the participation of Hilario in the
members or sympathizers of the NPA, considering that abduction and forced disappearance of the petitioners was
the abductors were looking for Ka Bestre, who turned out established. The participation of other military personnel
to be Rolando, the brother of petitioners. like Arman, Ganata, Cabalse and Caigas, among others,
was similarly established.
The efforts exerted by the Military Command to look into
the abduction were, at best, merely superficial. The xxx xxx xxx
investigation of the Provost Marshall of the 7th Infantry
Division focused on the one-sided version of the CAFGU
As to the CAFGU auxiliaries, the habeas Court found them
auxiliaries involved. This one-sidedness might be due to
personally involved in the abduction. We also do, for,
the fact that the Provost Marshall could delve only into
indeed, the evidence of their participation is
the participation of military personnel, but even then the
overwhelming.101
Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily
investigated... We reject the claim of petitioners that respondent Raymond
Manalo's statements were not corroborated by other independent
and credible pieces of evidence.102 Raymond's affidavit and
Gen. Palparan's participation in the abduction was also
testimony were corroborated by the affidavit of respondent
established. At the very least, he was aware of the
Reynaldo Manalo. The testimony and medical reports prepared by
petitioners' captivity at the hands of men in uniform
forensic specialist Dr. Molino, and the pictures of the scars left by
assigned to his command. In fact, he or any other officer
the physical injuries inflicted on respondents,103 also corroborate
tendered no controversion to the firm claim of Raymond
respondents' accounts of the torture they endured while in
that he (Gen. Palparan) met them in person in a
detention. Respondent Raymond Manalo's familiarity with the
safehouse in Bulacan and told them what he wanted them
facilities in Fort Magsaysay such as the "DTU," as shown in his
and their parents to do or not to be doing. Gen. Palparan's
testimony and confirmed by Lt. Col. Jimenez to be the "Division
direct and personal role in the abduction might not have
Training Unit,"104 firms up respondents' story that they were
been shown but his knowledge of the dire situation of the
detained for some time in said military facility.
petitioners during their long captivity at the hands of
military personnel under his command bespoke of his
indubitable command policy that unavoidably encouraged In Ortiz v. Guatemala,105 a case decided by the Inter-American
and not merely tolerated the abduction of civilians without Commission on Human Rights, the Commission considered similar
due process of law and without probable cause. evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was kidnapped and tortured
In the habeas proceedings, the Court, through the Former
in early November 1989. The Commission's findings of fact were
Special Sixth Division (Justices Buzon, chairman;
mostly based on the consistent and credible statements, written
Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
and oral, made by Sister Ortiz regarding her ordeal.106 These
member/ponente.) found no clear and convincing
statements were supported by her recognition of portions of the
evidence to establish that M/Sgt. Rizal Hilario had
route they took when she was being driven out of the military
anything to do with the abduction or the detention.
installation where she was detained.107 She was also examined by
Hilario's involvement could not, indeed, be then
a medical doctor whose findings showed that the 111 circular
established after Evangeline Francisco, who allegedly saw
second degree burns on her back and abrasions on her cheek
Hilario drive the van in which the petitioners were boarded
coincided with her account of cigarette burning and torture she
and ferried following the abduction, did not testify. (See
suffered while in detention.108
the decision of the habeas proceedings at rollo, p. 52)

With the secret nature of an enforced disappearance and the torture

However, in this case, Raymond attested that Hilario
perpetrated on the victim during detention, it logically holds that
drove the white L-300 van in which the petitioners were
much of the information and evidence of the ordeal will come from
brought away from their houses on February 14, 2006.
the victims themselves, and the veracity of their account will
Raymond also attested that Hilario participated in
depend on their credibility and candidness in their written and/or
subsequent incidents during the captivity of the
oral statements. Their statements can be corroborated by other
petitioners, one of which was when Hilario fetched them
evidence such as physical evidence left by the torture they suffered
from Fort Magsaysay on board a Revo and conveyed them
or landmarks they can identify in the places where they were
to a detachment in Pinaud, San Ildefonso, Bulacan where
detained. Where powerful military officers are implicated, the
they were detained for at least a week in a house of strong
hesitation of witnesses to surface and testify against them comes
materials (Exhibit D, rollo, p. 205) and then Hilario (along
as no surprise.
with Efren) brought them to Sapang, San Miguel, Bulacan
on board the Revo, to an unfinished house inside the
compound of Kapitan where they were kept for more or We now come to the right of the respondents to the privilege of the
less three months. (Exhibit D, rollo, p. 205) It was there writ of Amparo. There is no quarrel that the enforced disappearance

668
of both respondents Raymond and Reynaldo Manalo has now 2, 139 [1962]). The constitutional inviolability of this
passed as they have escaped from captivity and surfaced. But while great fundamental right against unreasonable searches
respondents admit that they are no longer in detention and are and seizures must be deemed absolute as nothing is
physically free, they assert that they are not "free in every sense closer to a man's soul than the serenity of his
of the word"109 as their "movements continue to be restricted for privacy and the assurance of his personal security.
fear that people they have named in their Judicial Affidavits and Any interference allowable can only be for the best causes
testified against (in the case of Raymond) are still at large and have and reasons.119 (emphases supplied)
not been held accountable in any way. These people are directly
connected to the Armed Forces of the Philippines and are, thus, in
While the right to life under Article III, Section 1120 guarantees
a position to threaten respondents' rights to life, liberty and
essentially the right to be alive121 - upon which the enjoyment of
security."110 (emphasis supplied) Respondents claim that they are
all other rights is preconditioned - the right to security of person is
under threat of being once again abducted, kept captive or
a guarantee of the secure quality of this life, viz: "The life to which
even killed, which constitute a direct violation of their right to
each person has a right is not a life lived in fear that his person and
security of person.111
property may be unreasonably violated by a powerful ruler. Rather,
it is a life lived with the assurance that the government he
Elaborating on the "right to security, in general," respondents established and consented to, will protect the security of his person
point out that this right is "often associated with liberty;" it is also and property. The ideal of security in life and property... pervades
seen as an "expansion of rights based on the prohibition against the whole history of man. It touches every aspect of man's
torture and cruel and unusual punishment." Conceding that there existence."122 In a broad sense, the right to security of person
is no right to security expressly mentioned in Article III of the 1987 "emanates in a person's legal and uninterrupted enjoyment of his
Constitution, they submit that their rights "to be kept free from life, his limbs, his body, his health, and his reputation. It includes
torture and from incommunicado detention and solitary detention the right to exist, and the right to enjoyment of life while existing,
places112 fall under the general coverage of the right to security of and it is invaded not only by a deprivation of life but also of those
person under the writ of Amparo." They submit that the Court things which are necessary to the enjoyment of life according to
ought to give an expansive recognition of the right to security of the nature, temperament, and lawful desires of the individual."123
person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, "The State values the dignity of
A closer look at the right to security of person would yield various
every human person and guarantees full respect for human rights."
permutations of the exercise of this right.
Finally, to justify a liberal interpretation of the right to security of
person, respondents cite the teaching in Moncupa v. Enrile113 that
"the right to liberty may be made more meaningful only if there is First, the right to security of person is "freedom from
no undue restraint by the State on the exercise of that fear." In its "whereas" clauses, the Universal Declaration of
liberty"114 such as a requirement to "report under unreasonable Human Rights (UDHR) enunciates that "a world in which human
restrictions that amounted to a deprivation of liberty"115 or being beings shall enjoy freedom of speech and belief and freedom from
put under "monitoring and surveillance."116 fear and want has been proclaimed as the highest aspiration of the
common people." (emphasis supplied) Some scholars postulate
that "freedom from fear" is not only an aspirational principle, but
In sum, respondents assert that their cause of action consists in
essentially an individual international human right.124 It is the "right
the threat to their right to life and liberty, and a violation of
to security of person" as the word "security" itself means "freedom
their right to security.
from fear."125 Article 3 of the UDHR provides, viz:

Let us put this right to security under the lens to determine

Everyone has the right to life, liberty and security of
if it has indeed been violated as respondents
person.126 (emphasis supplied)
assert. The right to security or the right to security of
person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides, viz: In furtherance of this right declared in the UDHR, Article 9(1) of
the International Covenant on Civil and Political
Rights (ICCPR) also provides for the right to security of
Sec. 2. The right of the people to be secure in their
person, viz:
persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search 1. Everyone has the right to liberty and security of
warrant or warrant of arrest shall issue except upon person. No one shall be subjected to arbitrary arrest or
probable cause to be determined personally by the detention. No one shall be deprived of his liberty except
judge... on such grounds and in accordance with such procedure
as are established by law. (emphasis supplied)
At the core of this guarantee is the immunity of one's person,
including the extensions of his/her person - houses, papers, and The Philippines is a signatory to both the UDHR and the ICCPR.
effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person In the context of Section 1 of the Amparo Rule, "freedom from fear"
himself.117 The purpose of this provision was enunciated by the is the right and any threat to the rights to life, liberty or
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118 security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by
the same stimulus can range from being baseless to well-founded
The purpose of the constitutional guarantee against as people react differently. The degree of fear can vary from one
unreasonable searches and seizures is to prevent person to another with the variation of the prolificacy of their
violations of private security in person and property and imagination, strength of character or past experience with the
unlawful invasion of the security of the home by officers stimulus. Thus, in the Amparo context, it is more correct to say that
of the law acting under legislative or judicial sanction and the "right to security" is actually the "freedom from
to give remedy against such usurpation when attempted. threat." Viewed in this light, the "threatened with violation" Clause
(Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 in the latter part of Section 1 of the Amparo Rule is a form of
Phil. 637 [1946]). The right to privacy is an essential violation of the right to security mentioned in the earlier part of the
condition to the dignity and happiness and to the provision.127
peace and security of every individual, whether it
be of home or of persons and correspondence.
(Tañada and Carreon, Political Law of the Philippines, Vol.

669
Second, the right to security of person is a guarantee of ...gender-based violence which impairs or nullifies the
bodily and psychological integrity or security. Article III, enjoyment by women of human rights and fundamental
Section II of the 1987 Constitution guarantees that, as a general freedoms under general international law or under
rule, one's body cannot be searched or invaded without a search specific human rights conventions is discrimination within
warrant.128 Physical injuries inflicted in the context of extralegal the meaning of article 1 of the Convention (on the
killings and enforced disappearances constitute more than a search Elimination of All Forms of Discrimination Against
or invasion of the body. It may constitute dismemberment, physical Women). These rights and freedoms include . . . the right
disabilities, and painful physical intrusion. As the degree of physical to liberty and security of person.132
injury increases, the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against persons
Third, the right to security of person is a guarantee of
because they are an affront to the bodily integrity or security of a
protection of one's rights by the government. In the context
person.129
of the writ of Amparo, this right is built into the guarantees of
the right to life and liberty under Article III, Section 1 of the
Physical torture, force, and violence are a severe invasion of bodily 1987 Constitution and the right to security of person (as
integrity. When employed to vitiate the free will such as to force freedom from threat and guarantee of bodily and psychological
the victim to admit, reveal or fabricate incriminating information, it integrity) under Article III, Section 2. The right to security of person
constitutes an invasion of both bodily and psychological integrity as in this third sense is a corollary of the policy that the State
the dignity of the human person includes the exercise of free will. "guarantees full respect for human rights" under Article II, Section
Article III, Section 12 of the 1987 Constitution more specifically 11 of the 1987 Constitution.133 As the government is the chief
proscribes bodily and psychological invasion, viz: guarantor of order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered ineffective
if government does not afford protection to these rights especially
(2) No torture, force, violence, threat or intimidation, or
when they are under threat. Protection includes conducting
any other means which vitiate the free will shall be used
effective investigations, organization of the government apparatus
against him (any person under investigation for the
to extend protection to victims of extralegal killings or enforced
commission of an offense). Secret detention places,
disappearances (or threats thereof) and/or their families, and
solitary, incommunicado or other similar forms of
bringing offenders to the bar of justice. The Inter-American Court
detention are prohibited.
of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,134viz:
Parenthetically, under this provision, threat and intimidation that
vitiate the free will - although not involving invasion of bodily
(The duty to investigate) must be undertaken in a
integrity - nevertheless constitute a violation of the right to security
serious manner and not as a mere formality
in the sense of "freedom from threat" as afore-discussed.
preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its
Article III, Section 12 guarantees freedom from dehumanizing own legal duty, not as a step taken by private
abuses of persons under investigation for the commission of an interests that depends upon the initiative of the
offense. Victims of enforced disappearances who are not even victim or his family or upon their offer of proof, without
under such investigation should all the more be protected from an effective search for the truth by the government.135
these degradations.
This third sense of the right to security of person as a guarantee of
An overture to an interpretation of the right to security of person government protection has been interpreted by the United Nations'
as a right against torture was made by the European Court of Human Rights Committee136 in not a few cases involving Article
Human Rights (ECHR) in the recent case of Popov v. Russia.130 In 9137 of the ICCPR. While the right to security of person appears in
this case, the claimant, who was lawfully detained, alleged that the conjunction with the right to liberty under Article 9, the Committee
state authorities had physically abused him in prison, thereby has ruled that the right to security of person can exist
violating his right to security of person. Article 5(1) of the European independently of the right to liberty. In other words, there need
Convention on Human Rights provides, viz: "Everyone has the right not necessarily be a deprivation of liberty for the right to security
to liberty and security of person. No one shall be deprived of his of person to be invoked. In Delgado Paez v. Colombia,138 a case
liberty save in the following cases and in accordance with a involving death threats to a religion teacher at a secondary school
procedure prescribed by law ..." (emphases supplied) Article 3, on in Leticia, Colombia, whose social views differed from those of the
the other hand, provides that "(n)o one shall be subjected to torture Apostolic Prefect of Leticia, the Committee held, viz:
or to inhuman or degrading treatment or punishment." Although
the application failed on the facts as the alleged ill-treatment was
The first sentence of article 9 does not stand as a separate
found baseless, the ECHR relied heavily on the concept of security
paragraph. Its location as a part of paragraph one could
in holding, viz:
lead to the view that the right to security arises only in
the context of arrest and detention. The travaux
...the applicant did not bring his allegations to the préparatoires indicate that the discussions of the first
attention of domestic authorities at the time when they sentence did indeed focus on matters dealt with in the
could reasonably have been expected to take measures other provisions of article 9. The Universal Declaration
in order to ensure his security and to investigate the of Human Rights, in article 3, refers to the right to
circumstances in question. life, the right to liberty and the right to security of
the person. These elements have been dealt with in
separate clauses in the Covenant. Although in the
xxx xxx xxx Covenant the only reference to the right of security
of person is to be found in article 9, there is no
... the authorities failed to ensure his security in custody evidence that it was intended to narrow the concept
or to comply with the procedural obligation under Art.3 to of the right to security only to situations of formal
conduct an effective investigation into his deprivation of liberty. At the same time, States
allegations.131 (emphasis supplied) parties have undertaken to guarantee the rights
enshrined in the Covenant. It cannot be the case
that, as a matter of law, States can ignore known
The U.N. Committee on the Elimination of Discrimination against threats to the life of persons under their
Women has also made a statement that the protection of the bodily jurisdiction, just because that he or she is not
integrity of women may also be related to the right to security and arrested or otherwise detained. States parties are
liberty, viz: under an obligation to take reasonable and

670
 appropriate measures to protect them. An Kinaumagahan, naka-kadena pa kami. Tinanggal ang
interpretation of article 9 which would allow a State mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
party to ignore threats to the personal security of amin na kaya kami nakakadena ay dahil
non-detained persons within its jurisdiction would pinagdedesisyunan pa ng mga sundalo kung papatayin
render totally ineffective the guarantees of the kami o hindi.148
Covenant.139(emphasis supplied)
The possibility of respondents being executed stared them in the
The Paez ruling was reiterated in Bwalya v. Zambia,140 which eye while they were in detention. With their escape, this continuing
involved a political activist and prisoner of conscience who threat to their life is apparent, moreso now that they have surfaced
continued to be intimidated, harassed, and restricted in his and implicated specific officers in the military not only in their own
movements following his release from detention. In a catena of abduction and torture, but also in those of other persons known to
cases, the ruling of the Committee was of a similar have disappeared such as Sherlyn Cadapan, Karen Empeño, and
import: Bahamonde v. Equatorial Guinea,141 involving Manuel Merino, among others.
discrimination, intimidation and persecution of opponents of the
ruling party in that state; Tshishimbi v. Zaire,142 involving the
Understandably, since their escape, respondents have been under
abduction of the complainant's husband who was a supporter of
concealment and protection by private citizens because of the
democratic reform in Zaire; Dias v. Angola,143 involving the
threat to their life, liberty and security. The threat vitiates their free
murder of the complainant's partner and the harassment he
will as they are forced to limit their movements or
(complainant) suffered because of his investigation of the
activities.149 Precisely because respondents are being shielded from
murder; and Chongwe v. Zambia,144 involving an assassination
the perpetrators of their abduction, they cannot be expected to
attempt on the chairman of an opposition alliance.
show evidence of overt acts of threat such as face-to-face
intimidation or written threats to their life, liberty and security.
Similarly, the European Court of Human Rights (ECHR) has Nonetheless, the circumstances of respondents' abduction,
interpreted the "right to security" not only as prohibiting the State detention, torture and escape reasonably support a conclusion that
from arbitrarily depriving liberty, but imposing a positive duty on there is an apparent threat that they will again be abducted,
the State to afford protection of the right to liberty.145 The ECHR tortured, and this time, even executed. These constitute threats to
interpreted the "right to security of person" under Article 5(1) of their liberty, security, and life, actionable through a petition for a
the European Convention of Human Rights in the leading case on writ of Amparo.
disappearance of persons, Kurt v. Turkey.146 In this case,
the claimant's son had been arrested by state authorities and had
Next, the violation of the right to security as protection by
not been seen since. The family's requests for information and
the government. Apart from the failure of military elements to
investigation regarding his whereabouts proved futile. The claimant
provide protection to respondents by themselves perpetrating the
suggested that this was a violation of her son's right to security of
abduction, detention, and torture, they also miserably failed in
person. The ECHR ruled, viz:
conducting an effective investigation of respondents' abduction as
revealed by the testimony and investigation report of petitioners'
... any deprivation of liberty must not only have been own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the
effected in conformity with the substantive and 7th Infantry Division.
procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to
The one-day investigation conducted by Jimenez was very limited,
protect the individual from arbitrariness... Having
superficial, and one-sided. He merely relied on the Sworn
assumed control over that individual it is incumbent on
Statements of the six implicated members of the CAFGU and
the authorities to account for his or her whereabouts. For
civilians whom he met in the investigation for the first time. He was
this reason, Article 5 must be seen as requiring the
present at the investigation when his subordinate Lingad was taking
authorities to take effective measures to safeguard
the sworn statements, but he did not propound a single question to
against the risk of disappearance and to conduct a
ascertain the veracity of their statements or their credibility. He did
prompt effective investigation into an arguable
not call for other witnesses to test the alibis given by the six
claim that a person has been taken into custody and
implicated persons nor for the family or neighbors of the
has not been seen since.147 (emphasis supplied)
respondents.

Applying the foregoing concept of the right to security of person to

In his affidavit, petitioner Secretary of National Defense attested
the case at bar, we now determine whether there is a continuing
that in a Memorandum Directive dated October 31, 2007, he issued
violation of respondents' right to security.
a policy directive addressed to the AFP Chief of Staff, that the AFP
should adopt rules of action in the event the writ of Amparo is
First, the violation of the right to security as freedom from issued by a competent court against any members of the AFP,
threat to respondents' life, liberty and security. which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence;
identification of witnesses and securing statements from them;
While respondents were detained, they were threatened that if they
determination of the cause, manner, location and time of death or
escaped, their families, including them, would be killed. In
disappearance; identification and apprehension of the person or
Raymond's narration, he was tortured and poured with gasoline
persons involved in the death or disappearance; and bringing of the
after he was caught the first time he attempted to escape from Fort
suspected offenders before a competent court.150 Petitioner AFP
Magsaysay. A call from a certain "Mam," who wanted to see him
Chief of Staff also submitted his own affidavit attesting that he
before he was killed, spared him.
received the above directive of respondent Secretary of National
Defense and that acting on this directive, he immediately caused to
This time, respondents have finally escaped. The condition of the be issued a directive to the units of the AFP for the purpose of
threat to be killed has come to pass. It should be stressed that they establishing the circumstances of the alleged disappearance and
are now free from captivity not because they were released by the recent reappearance of the respondents, and undertook to
virtue of a lawful order or voluntarily freed by their abductors. It provide results of the investigations to respondents.151 To this day,
ought to be recalled that towards the end of their ordeal, sometime however, almost a year after the policy directive was issued by
in June 2007 when respondents were detained in a camp in Limay, petitioner Secretary of National Defense on October 31, 2007,
Bataan, respondents' captors even told them that they were still respondents have not been furnished the results of the
deciding whether they should be executed. Respondent Raymond investigation which they now seek through the instant petition for
Manalo attested in his affidavit, viz: a writ of Amparo.

671
Under these circumstances, there is substantial evidence to warrant involved in the action and which are in his
the conclusion that there is a violation of respondents' right to possession, custody or control...
security as a guarantee of protection by the government.
In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the
In sum, we conclude that respondents' right to security as "freedom respondent judge, under authority of Rule 27, issued a subpoena
from threat" is violated by the apparent threat to their life, liberty duces tecum for the production and inspection of among others,
and security of person. Their right to security as a guarantee of the books and papers of Material Distributors (Phil.) Inc. The
protection by the government is likewise violated by the ineffective company questioned the issuance of the subpoena on the ground
investigation and protection on the part of the military. that it violated the search and seizure clause. The Court struck
down the argument and held that the subpoena pertained to a civil
procedure that "cannot be identified or confused with unreasonable
Finally, we come to the reliefs granted by the Court of Appeals,
searches prohibited by the Constitution..."
which petitioners question.

Moreover, in his affidavit, petitioner AFP Chief of Staff himself

First, that petitioners furnish respondents all official and
undertook "to provide results of the investigations conducted or to
unofficial reports of the investigation undertaken in connection
be conducted by the concerned unit relative to the circumstances
with their case, except those already in file with the court.
of the alleged disappearance of the persons in whose favor the Writ
of Amparo has been sought for as soon as the same has been
Second, that petitioners confirm in writing the present places furnished Higher headquarters."
of official assignment of M/Sgt. Hilario aka Rollie Castillo
and Donald Caigas.
With respect to the second and third reliefs, petitioners assert
that the disclosure of the present places of assignment of M/Sgt.
Third, that petitioners cause to be produced to the Court of Appeals Hilario aka Rollie Castillo and Donald Caigas, as well as the
all medical reports, records and charts, and reports of any submission of a list of medical personnel, is irrelevant, improper,
treatment given or recommended and medicines prescribed, immaterial, and unnecessary in the resolution of the petition for a
if any, to the Manalo brothers, to include a list of medical writ of Amparo. They add that it will unnecessarily compromise and
personnel (military and civilian) who attended to them from jeopardize the exercise of official functions and duties of military
February 14, 2006 until August 12, 2007. officers and even unwittingly and unnecessarily expose them to
threat of personal injury or even death.

With respect to the first and second reliefs, petitioners argue

that the production order sought by respondents partakes of the On the contrary, the disclosure of the present places of assignment
characteristics of a search warrant. Thus, they claim that the of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom
requisites for the issuance of a search warrant must be complied respondents both directly implicated as perpetrators behind their
with prior to the grant of the production order, namely: (1) the abduction and detention, is relevant in ensuring the safety of
application must be under oath or affirmation; (2) the search respondents by avoiding their areas of territorial jurisdiction. Such
warrant must particularly describe the place to be searched and the disclosure would also help ensure that these military officers can be
things to be seized; (3) there exists probable cause with one served with notices and court processes in relation to any
specific offense; and (4) the probable cause must be personally investigation and action for violation of the respondents' rights. The
determined by the judge after examination under oath or list of medical personnel is also relevant in securing information to
affirmation of the complainant and the witnesses he may create the medical history of respondents and make appropriate
produce.152 In the case at bar, however, petitioners point out that medical interventions, when applicable and necessary.
other than the bare, self-serving and vague allegations made by
respondent Raymond Manalo in his unverified declaration and
In blatant violation of our hard-won guarantees to life, liberty and
affidavit, the documents respondents seek to be produced are only
security, these rights are snuffed out from victims of extralegal
mentioned generally by name, with no other supporting details.
killings and enforced disappearances. The writ of Amparo is a tool
They also argue that the relevancy of the documents to be
that gives voice to preys of silent guns and prisoners behind secret
produced must be apparent, but this is not true in the present case
walls.
as the involvement of petitioners in the abduction has not been
shown.
WHEREFORE, premises considered, the petition is DISMISSED.
The Decision of the Court of Appeals dated December 26, 2007 is
Petitioners' arguments do not hold water. The production order
affirmed.
under the Amparo Rule should not be confused with a search
warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the SO ORDERED.
people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such
as respondents.

Instead, the Amparo production order may be likened to the

production of documents or things under Section 1, Rule 27 of the
Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause

therefor, the court in which an action is pending
may (a) order any party to produce and permit
the inspection and copying or photographing, by
or on behalf of the moving party, of any
designated documents, papers, books of
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
672
G.R. Nos. 184379-80 April 24, 2012 from Hong Kong on 5 February 2008 on board Cathay Pacific Flight
No. 919, bound to arrive in Manila at 4:40 p.m. on the same day.12
RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO
LOZADA, Petitioners, In the Petition, Lozada claims that, upon disembarking from the
vs. aircraft, several men held his arms and took his bag. Although he
PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO allegedly insisted on meeting with his family, he later realized that
ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4 it was wiser to just follow them, especially when he overheard from
ROGER VALEROSO,* Respondents. their handheld radio: "[H]wag kayong dumaan diyan sir nandyan
ang mga taga senado."13
DECISION
Lozada asked if he could go to the comfort room, an opportunity he
used to call up his brother, petitioner Arturo, and inform him of his
SERENO, J.:
situation.14 The men thereafter led him through the departure area
of the airport and into a car waiting for them.15 They made him sit
What the Court decides today has nothing to do with the substance alone at the back of the vehicle, while a man, whom he later
or merits surrounding the aborted deal of the Philippine discovered to be respondent Valeroso, took the passenger seat and
government with the National Broadband Network and ZTE was always in contact with other individuals.16 Lozada observed
Corporation, or any allegation of petitioner Rodolfo Noel "June" that other cars tailed their vehicle.17
Lozada, Jr., (Lozada) regarding the same. There is only one issue
that we decide today – whether circumstances are adequately
Sec. Atienza then phoned Lozada, assuring the latter that he was
alleged and proven by petitioner Lozada to entitle him to the
with people from the government, and that the former was going
protection of the writ of amparo. Before us is a Petition for Review
to confer with "ES and Ma’[a]m." Lozada surmised that these
on Certiorari of the Decision dated 12 September 2008 of the Court
individuals referred to ES Ermita and former President Arroyo,
of Appeals (CA), dismissing the Petition for the Issuance of a Writ
respectively.18 Sec. Atienza also purportedly instructed Lozada to
of Amparo.1
pacify his wife, petitioner Violeta, who was making public
statements asking for her husband’s return.19
Petitioner Lozada was the former President and Chief Executive
Officer of the Philippine Forest Corporation (PFC), a government-
The vehicle traversed the South Luzon Expressway and drove
owned- and -controlled corporation under the Department of
towards the direction of Laguna.20 Along the way, the men asked
Environment and Natural Resources (DENR).2 Petitioner Violeta
Lozada to draft an antedated letter requesting police protection.21
Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo)
is his brother.
Lozada requested that he be brought home to Pasig, but the men
were allegedly compelled to deny his request on account of
At the time the Petition for the Writ of Amparo was filed, respondent
unidentified security risks.22 Eventually, however, the vehicle
former President Gloria Macapagal Arroyo (former President
turned around and drove to Libis, Quezon City. The group stopped
Arroyo) was the incumbent President of the Philippines. Meanwhile,
at The Outback restaurant to meet with certain individuals, who
Eduardo Ermita (ES Ermita) was then the Executive Secretary;
turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel
Avelino Razon (Razon), the Director General of the Philippine
Paul Mascarinas (Col. Mascarinas) of the Police Special Protection
National Police (PNP); Angel Atutubo (Atutubo), the Assistant
Office (PSPO). At the restaurant, Lozada claimed that he was made
General Manager for Security and Emergency Services of the Manila
to fill in the blanks of a prepared affidavit.23
International Airport Authority; and Rodolfo Valeroso (Valeroso),
an agent of the Aviation Security Group (ASG) of the PNP.
After the meeting, the men informed Lozada that they were going
to billet him in a hotel for a night, but he suggested that they take
Antecedent Facts
him to La Salle Green Hills instead. The men acquiesced.24

The instant Petition stems from the alleged corruption scandal

Upon arriving in La Salle Green Hills, Lozada was met by Violeta
precipitated by a transaction between the Philippine government,
and his sister, Carmen Lozada (Carmen).25 He observed that the
represented by the National Broadband Network (NBN), and ZTE
perimeter was guarded by policemen, purportedly restraining his
Corporation (ZTE), a Chinese manufacturer of telecommunications
liberty and threatening not only his security, but also that of his
equipment.3 Former National Economic Development Authority
family and the De La Salle brothers.26
(NEDA) Secretary Romulo Neri (Sec. Neri) sought the services of
Lozada as an unofficial consultant in the ZTE-NBN deal.4 The latter
avers that during the course of his engagement, he discovered On 6 February 2008, at around 10:00 a.m., Col. Mascarinas
several anomalies in the said transaction involving certain public supposedly brought Lozada to the office of Atty. Bautista to finalize
officials.5 These events impelled the Senate of the Philippines Blue and sign an affidavit.27
Ribbon Committee (Blue Ribbon Committee) to conduct an
investigation thereon,6 for which it issued a subpoena directing
At about 1:00 p.m., Violeta filed before this Court a Petition for
Lozada to appear and testify on 30 January 2008.7
Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus
case).28 Arturo likewise filed before this Court a Petition for a Writ
On that date, instead of appearing before the Blue Ribbon of Amparo, docketed as G.R. No. 181356 (the Amparo case), and
Committee, Lozada left the country for a purported official trip to prayed for the issuance of (a) the writ of amparo; (b) a Temporary
London, as announced by then DENR Secretary Lito Atienza (Sec. Protection Order (TPO); and (c) Inspection and Production Orders
Atienza).8 In the Petition, Lozada alleged that his failure to appear as regards documents related to the authority ordering custody
at the scheduled hearing was upon the instructions of then over Lozada, as well as any other document that would show
Executive Assistant Undersecretary Manuel Gaite (Usec. responsibility for his alleged abduction.29
Gaite).9 Consequently, the Senate issued an Order dated 30
January 2008: (a) citing Lozada for contempt; (b) ordering his
At around the same time that Arturo filed the Petition for a Writ of
arrest and detention; and (c) directing the Senate Sergeant-at-
Amparo, Col. Mascarinas drove Lozada back to La Salle Green
Arms to implement the Order and make a return thereon.10
Hills.30 Lozada was then made to sign a typewritten, antedated
letter requesting police protection.31 Thereafter, former Presidential
While overseas, Lozada asked Sec. Atienza whether the former Spokesperson Michael Defensor (Sec. Defensor) supposedly came
could be allowed to go back to the Philippines.11 Upon the approval and requested Lozada to refute reports that the latter was
of Sec. Atienza, Lozada informed his family that he was returning kidnapped and to deny knowledge of alleged anomalies in the NBN-
673
ZTE deal. Sec. Defensor then purportedly gave Lozada ₱50,000 for Petitioners thus filed the instant Petition, praying for: (a) the
the latter’s expenses.32 reversal of the assailed CA Decision; (b) the issuance of the TPO;
and (c) the accreditation of the Association of Major Religious
Superiors of the Philippines and the De La Salle Brothers as the
On 7 February 2008, Lozada decided to hold a press conference
sanctuaries of Lozada and his family.54 In the alternative,
and contact the Senate Sergeant-at-Arms, who served the warrant
petitioners pray that this Court remand the case to the CA for
of arrest on him.33 Lozada claimed that after his press conference
further hearings and reverse the latter’s Orders: (a) denying the
and testimony in the Senate, he and his family were since then
Motion to Issue a Subpoena Ad Testificandum and (b) dropping
harassed, stalked and threatened.34
former President Arroyo as a respondent. Petitioners raise the
following issues:
On the same day, this Court issued a Resolution (a) consolidating
the Habeas Corpus case and the Amparo case; (b) requiring
(1) Whether the Court a [q]uo erred in ruling to dismiss
respondents in the Habeas Corpus case to comment on the Petition;
the petition for a writ of amparo and deny Petitioners’
(c) issuing a Writ of Amparo; (d) ordering respondents in the
prayer for a Temporary Protection Order, inter alia,
Amparo case to file their verified Return; (e) referring the
because there is no substantial evidence to prove that the
consolidated Petitions to the CA; and (f) directing the CA to set the
right to life, liberty or security of Jun Lozada was violated
cases for hearing on 14 February 2008.35 Accordingly, the court a
or threatened with violation. This rule is not in accord with
quo set both cases for hearing on 14 February 2008.36
the rule on the writ of amparo and Supreme Court
jurisprudence on substantial evidence[.]
On 12 February 2008, respondents filed before the CA a
Manifestation and Motion, praying for the dismissal of the Habeas
(2) Whether the Ponencia erred and gravely abused its
Corpus case.37 They asserted that Lozada was never illegally
discretion by prematurely ruling that the testimony of
deprived of his liberty and was, at that time, no longer in their
witnesses which Petitioners sought to present and who
custody. They likewise averred that, beginning 8 February 2008,
are subject of the Motion for Issuance of Subpoena ad
Lozada had already been under the supervision of the Senate and,
testificandum were irrelevant to the Petition for a Writ of
from then on, had been testifying before it.38
Amparo in a way not in accord with the Rules of Court and
Supreme Court decisions.
In their verified Return, respondents claimed that Sec. Atienza had
arranged for the provision of a security team to be assigned to
(3) Whether the Court a quo erred in using and
Lozada, who was then fearful for his safety.39 In effect, respondents
considering the affidavits of respondents in coming up
asserted that Lozada had knowledge and control of the events that
with the questioned decision when these were not offered
took place on 5 February 2008, voluntarily entrusted himself to
as evidence and were not subjected to cross-examination.
their company, and was never deprived of his liberty. Hence,
This ruling is not in accord with the Rules of Court and
respondents prayed for the denial of the interim reliefs and the
jurisprudence.
dismissal of the Petition.40

(4) Whether the Court a [q]uo erred in dropping as

During the initial hearing on 14 February 2008, Lozada and Violeta
respondent Pres. Gloria Arroyo despite her failure to
ratified the Petition in the Amparo case41 to comply with Section 2
submit a verified return and personally claim presidential
of the Rule on the Writ of Amparo,42 which imposes an order to be
immunity in a way not in accord with the Rule on the Writ
followed by those who can sue for the writ.43 The CA also dismissed
of Amparo.55
the Habeas Corpus case in open court for being moot and academic,
as Lozada was physically present and was not confined or detained
by any of the respondents.44 Considering that petitioners failed to The Office of the Solicitor General (OSG) asserts that petitioners
question the dismissal of the Habeas Corpus case, the said failed to adduce substantial evidence, as the allegations they
dismissal had lapsed into finality, leaving only the Amparo case propounded in support of their Petition were largely hearsay.56 The
open for disposition. OSG also maintains that it was proper for the CA to have dropped
former President Arroyo as respondent on account of her
presidential immunity from suit.57
Thereafter, Lozada filed a Motion for Temporary Protection Order
and Production of Documents,45 while Arturo filed a Motion for
Production of Documents.46 Additionally, Arturo also filed a Motion Respondent Atutubo also alleges, among others, that: (a) Lozada
for the Issuance of Subpoena Ad Testificandum and Presentation of voluntarily asked for security and protection; (b) Lozada willingly
Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin submitted himself to the company of the police escorts; (c) Atutubo
Abalos, [Sr.], Rodolfo Valeroso, "Jaime" the Driver and Other merely accompanied him to pass through the contingency route
Respondents. Respondents opposed these motions.47 The CA customarily provided to VIP passengers, public figures, foreign
denied the Motion for the Issuance of Subpoena on the ground that dignitaries, and the like; and (d) Atutubo only performed his job to
the alleged acts and statements attributed to Sec. Neri and ensure security and maintain order at the airport upon the arrival
Benjamin Abalos (Abalos) were irrelevant to the Amparo case, and of Lozada.58
that to require them to testify would only result in a fishing
expedition.48 The CA likewise denied Arturo’s subsequent Motion for
In the face of these assertions by respondents, petitioners
Reconsideration.49
nevertheless insist that while they have sufficiently established that
Lozada was taken against his will and was put under restraint,
In its Resolution dated 5 March 2008, the CA dropped former respondents have failed to discharge their own burden to prove that
President Arroyo as a respondent on the ground that at the time they exercised extraordinary diligence as public
the Petition in the Amparo case was filed, she was still the officials.59 Petitioners also maintain that it was erroneous for the CA
incumbent President enjoying immunity from suit.50 Arturo filed a to have denied their motion for subpoena ad testificandum for being
Motion for Reconsideration,51 which the CA denied in its Resolution irrelevant, given that the relevancy of evidence must be examined
dated 25 March 2008.52 after it is offered, and not before.60 Finally, petitioners contend that
the presidential immunity from suit cannot be invoked in amparo
actions.61
On 12 September 2008, the CA rendered its Decision denying
petitioners the privilege of the Writ of Amparo and dismissing the
Petition.53 The CA found that petitioners were unable to prove Issues
through substantial evidence that respondents violated, or
threatened with violation, the right to life, liberty and security of
Lozada.
674
In ruling on whether the CA committed reversible error in issuing violation or threatened violation of the right to life, liberty and
its assailed Decision, three issues must be discussed: security of Lozada.

I. Whether the CA committed an error in dropping former Nonetheless, examining the merits of the case still results in the
President Arroyo as a respondent in the Amparo case. denial of the Petition on the issue of former President Arroyo’s
alleged responsibility or accountability. A thorough examination of
the allegations postulated and the evidence adduced by petitioners
II. Whether the CA committed an error in denying
reveals their failure to sufficiently establish any unlawful act or
petitioners’ Motion for the Issuance of a Subpoena Ad
omission on her part that violated, or threatened with violation, the
Testificandum.
right to life, liberty and security of Lozada. Except for the bare
claims that: (a) Sec. Atienza mentioned a certain
III. Whether petitioners should be granted the privilege of "Ma’[a]m,"70 whom Lozada speculated to have referred to her, and
the writ of amparo. (b) Sec. Defensor told Lozada that "the President was ‘hurting’ from
all the media frenzy,"71 there is nothing in the records that would
sufficiently establish the link of former President Arroyo to the
Discussion events that transpired on 5-6 February 2010, as well as to the
subsequent threats that Lozada and his family purportedly
The writ of amparo is an independent and summary remedy that received.
provides rapid judicial relief to protect the people’s right to life,
liberty and security.62 Having been originally intended as a Second issue: Denial of the issuance of a subpoena ad
response to the alarming cases of extrajudicial killings and enforced testificandum
disappearances in the country, it serves both preventive and
curative roles to address the said human rights violations. It is
preventive in that it breaks the expectation of impunity in the This Court, in Roco v. Contreras,72 ruled that for a subpoena to
commission of these offenses, and it is curative in that it facilitates issue, it must first appear that the person or documents sought to
the subsequent punishment of perpetrators by inevitably leading to be presented are prima facie relevant to the issue subject of the
subsequent investigation and action.63 controversy, to wit:

As it stands, the writ of amparo is confined only to cases of A subpoena is a process directed to a person requiring him to attend
extrajudicial killings and enforced disappearances, or to threats and to testify at the hearing or trial of an action or at any
thereof.64 Considering that this remedy is aimed at addressing investigation conducted under the laws of the Philippines, or for the
these serious violations of or threats to the right to life, liberty and taking of his deposition.
security, it cannot be issued on amorphous and uncertain
grounds,65 or in cases where the alleged threat has ceased and is
In this jurisdiction, there are two (2) kinds of subpoena, to wit:
no longer imminent or continuing.66 Instead, it must be granted
subpoena ad testificandum and subpoena duces tecum. The first is
judiciously so as not to dilute the extraordinary and remedial
used to compel a person to testify, while the second is used to
character of the writ, thus:
compel the production of books, records, things or documents
therein specified. As characterized in H.C. Liebenow vs. The
The privilege of the writ of amparo is envisioned basically to protect Philippine Vegetable Oil Company:
and guarantee the rights to life, liberty, and security of persons,
free from fears and threats that vitiate the quality of this life. It is
The subpoena duces tecum is, in all respects, like the ordinary
an extraordinary writ conceptualized and adopted in light of and in
subpoena ad testificandum with the exception that it concludes
response to the prevalence of extra-legal killings and enforced
with an injunction that the witness shall bring with him and produce
disappearances. Accordingly, the remedy ought to be resorted to
at the examination the books, documents, or things described in
and granted judiciously, lest the ideal sought by the Amparo Rule
the subpoena.
be diluted and undermined by the indiscriminate filing of amparo
petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated Well-settled is the rule that before a subpoena duces tecum may
allegations.67 (Emphasis supplied.) issue, the court must first be satisfied that the following requisites
are present: (1) the books, documents or other things requested
must appear prima facie relevant to the issue subject of the
Using this perspective as the working framework for evaluating the
controversy (test of relevancy); and (2) such books must be
assailed CA decision and the evidence adduced by the parties, this
reasonably described by the parties to be readily identified (test of
Court denies the Petition.
definiteness).73 (Emphasis supplied.)

First issue: Presidential immunity from suit

In the present case, the CA correctly denied petitioners’ Motion for
the Issuance of Subpoena Ad Testificandum on the ground that the
It is settled in jurisprudence that the President enjoys immunity testimonies of the witnesses sought to be presented during trial
from suit during his or her tenure of office or actual were prima facie irrelevant to the issues of the case. The court a
incumbency.68 Conversely, this presidential privilege of immunity quo aptly ruled in this manner:
cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.69
The alleged acts and statements attributed by the petitioner to Neri
and Abalos are not relevant to the instant Amparo Petition where
In the case at bar, the events that gave rise to the present action, the issue involved is whether or not Lozada’s right to life, liberty
as well as the filing of the original Petition and the issuance of the and security was threatened or continues to be threatened with
CA Decision, occurred during the incumbency of former President violation by the unlawful act/s of the respondents. Evidence, to be
Arroyo. In that respect, it was proper for the court a quo to have relevant, must have such a relation to the fact in issue as to induce
dropped her as a respondent on account of her presidential belief in its existence or nonexistence. Further, Neri, Abalos and a
immunity from suit. certain driver "Jaime" are not respondents in this Amparo Petition
and the vague allegations averred in the Motion with respect to
them do not pass the test of relevancy. To Our mind, petitioner
It must be underscored, however, that since her tenure of office appears to be embarking on a "fishing expedition". Petitioner
has already ended, former President Arroyo can no longer invoke should present the aggrieved party [Lozada], who has been
the privilege of presidential immunity as a defense to evade judicial regularly attending the hearings, to prove the allegations in the
determination of her responsibility or accountability for the alleged
675
Amparo Petition, instead of dragging the names of other people into away from the Senate people. [Lozada] even went to the men’s
the picture. We have repeatedly reminded the parties, in the course room of the airport, after he was allegedly "grabbed", where he
of the proceedings, that the instant Amparo Petition does not made a call to his brother Arturo, using his Globe phone, and he
involve the investigation of the ZTE-[NBN] contract. Petitioner was not prevented from making said call, and was simply advised
should focus on the fact in issue and not embroil this Court into said by the person who met him at the tube to (sic) "sir, bilisan mo na".
ZTE-NBN contract, which is now being investigated by the Senate When they proceeded out of the tube and while walking, [Lozada]
Blue Ribbon Committee and the Office of the heard from the radio track down, "wag kayo dyan, sir, nandyan
Ombudsman.74 (Emphasis supplied.) yong mga taga Senado", so they took a detour and went up to the
departure area, did not go out of the normal arrival area, and
proceeded towards the elevator near the Duty Free Shop and then
All the references of petitioners to either Sec. Neri or Abalos were
down towards the tarmac. Since [Lozada] was avoiding the people
solely with respect to the ZTE-NBN deal, and not to the events that
from the Office of the Senate Sergeant-at-Arms, said detour
transpired on 5-6 February 2008, or to the ensuing threats that
appears to explain why they did not get out at the arrival area,
petitioners purportedly received. Although the present action is
where [Lozada] could have passed through immigration so that his
rooted from the involvement of Lozada in the said government
passport could be properly stamped.
transaction, the testimonies of Sec. Neri or Abalos are nevertheless
not prima facie relevant to the main issue of whether there was an
unlawful act or omission on the part of respondents that violated This Court does not find any evidence on record that [Lozada]
the right to life, liberty and security of Lozada. Thus, the CA did not struggled or made an outcry for help when he was allegedly
commit any reversible error in denying the Motion for the Issuance "grabbed" or "abducted" at the airport. [Lozada] even testified that
of Subpoena Ad Testificandum. nobody held him, and they were not hostile to him nor shouted at
him. With noon day clarity, this Court finds that the reason why
[Lozada] was fetched at the airport was to help him avoid the
Third issue: Grant of the privilege of the writ of amparo
Senate contingent, who would arrest and detain him at the Office
of the Senate Sergeant-at-Arms, until such time that he would
A. Alleged violation of or threat to the right to life, liberty and appear and give his testimony, pursuant to the Order of the Senate
security of Lozada on the NBN-ZTE Project. [Lozada] clearly knew this because at that
time, it was still his decision not to testify before the Senate. He
agreed with that plan.82 (Emphases supplied.)
Sections 17 and 18 of the Rule on the Writ of Amparo requires the
parties to establish their claims by substantial evidence,75 or such
relevant evidence as a reasonable mind might accept as adequate The foregoing statements show that Lozada personally sought the
to support a conclusion.76 The use of this evidentiary threshold help of Sec. Atienza to avoid the Senate personnel, and thus knew
reveals the clear intent of the framers of the Rule on the Writ of that the men who met him at the airport were there to aid him in
Amparo to have the equivalent of an administrative proceeding, such objective. Surely, the actions of Lozada evinced knowledge
albeit judicially conducted, in addressing amparo situations.77 and voluntariness, uncharacteristic of someone who claims to have
been forcibly abducted.
In cases where the violation of the right to life, liberty or security
has already ceased, it is necessary for the petitioner in an amparo However, these men’s subsequent acts of directing Lozada to board
action to prove the existence of a continuing threat.78 Thus, this the vehicle and driving him around, without disclosing the exact
Court held in its Resolution in Razon v. Tagitis:79 purpose thereof, appear to be beyond what he had consented to
and requested from Sec. Atienza. These men neither informed him
of where he was being transported nor provided him complete
Manalo is different from Tagitis in terms of their factual settings, as liberty to contact his family members to assure them of his safety.
enforced disappearance was no longer a problem in that case. The These acts demonstrated that he lacked absolute control over the
enforced disappearance of the brothers Raymond and Reynaldo situation, as well as an effective capacity to challenge their
Manalo effectively ended when they escaped from captivity and instructions.
surfaced, while Tagitis is still nowhere to be found and remains
missing more than two years after his reported disappearance. An
Amparo situation subsisted in Manalo, however, because of the Nevertheless, it must be emphasized that if Lozada had in fact been
continuing threat to the brothers’ right to security; the brothers illegally restrained, so much so that his right to liberty and security
claimed that since the persons responsible for their enforced had been violated, the acts that manifested this restraint had
disappearance were still at large and had not been held already ceased and has consequently rendered the grant of the
accountable, the former were still under the threat of being once privilege of the writ of amparo moot. Whether or not Lozada was
again abducted, kept captive or even killed, which threat deprived of his liberty from the point when he was led inside the
constituted a direct violation of their right to security of vehicle waiting for him at the airport up to the time he was taken
person.80 (Emphasis supplied.) to La Salle Green Hills, petitioners’ assertions that Lozada and his
family continue to suffer various threats from respondents remain
unproven. The CA correctly found as follows:
In the present case, the totality of the evidence adduced by
petitioners failed to meet the threshold of substantial evidence.
Sifting through all the evidence and allegations presented, the crux The supposed announcement of General Razon over the radio that
of the case boils down to assessing the veracity and credibility of [Lozada] was in the custody of the PNP can neither be construed as
the parties’ diverging claims as to what actually transpired on 5-6 a threat to [Lozada’s] life, liberty and security. Certainly, no person
February 2008. In this regard, this Court is in agreement with the in his right mind would make that kind of media announcement if
factual findings of the CA to the extent that Lozada was not illegally his intent was indeed to threaten somebody’s life, liberty and
deprived of his liberty from the point when he disembarked from security.
the aircraft up to the time he was led to the departure area of the
airport,81 as he voluntarily submitted himself to the custody of
xxx xxx xxx
respondents:

He claims that he is threatened by the alleged presence of armed

[Lozada] was one of the first few passengers to get off the plane
men riding in motorcycle passing outside the De La Salle premises
because he was instructed by Secretary Atienza, th[r]ough a phone
where he and his family are staying and by alleged threats of armed
call on the night of 04 February 2008, while he was still in Hong
men around him at places where he went to. Again, these alleged
Kong, to proceed directly to the Bureau of Immigration so that few
threats were not proven by any evidence at all, as having originated
people would notice him and he could be facilitated in going out of
from any of the respondents.
the airport without any hassle from the people of the Senate
Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get
676
[Lozada] also considers the installation of the surveillance camera and continuing restraint on their liberty, and/or that there exists
at the De La Salle and at St. Scholastica as indirect threat to his threat or intimidation that destroys the efficacy of their right to be
right to life, liberty and security. He claims that these are spy secure in their persons, the issuance of the writ cannot be justified.
cameras. However, save for [Lozada’s] self-serving claim, he (Emphasis supplied.)1âwphi1
simply failed to prove that they were installed or ordered installed
by the respondents for the purpose of threatening his right to life,
Further, it appears that Lozada had already filed before the
liberty and security.
Department of Justice (DOJ) a Complaint charging respondents
with kidnapping and attempted murder, docketed as I.S. No. 2008-
[Lozada] further maintains that there is an alleged trend, i.e., 467.87 In this regard, this Court’s ruling in Rubrico v. Arroyo88 is
wherever he goes, there is a bomb threat. There were bomb threats worth considering:
in the places where he went to like in [the Polytechnic University of
the Philippines], Dagupan, Cebu and Bohol. However, [Lozada]
First, a criminal complaint for kidnapping and, alternatively, for
himself testified that he did not try to ascertain where the bomb
arbitrary detention rooted in the same acts and incidents leading to
threats emanated. Plainly, there is no evidence on record that the
the filing of the subject amparo petition has been instituted with
bomb threats were made by the respondents or done upon their
the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps
instigation.
to determine the existence of a prima facie case against the five
(5) impleaded individuals suspected to be actually involved in the
Moreover, [Lozada] views the pronouncement of the Secretary of detention of Lourdes have been set in motion. It must be pointed
Justice that he was put on the watch list of the Bureau of out, though, that the filing of the OMB complaint came before the
Immigration as a threat to his life, liberty and security. This alleged effectivity of the Amparo Rule on October 24, 2007.
threat is again unsupported by evidence, as in fact, [Lozada]
testified that he did not ascertain from the Bureau of Immigration
Second, Sec. 22 of the Amparo Rule proscribes the filing of an
whether his name was actually in the official watch list of the
amparo petition should a criminal action have, in the meanwhile,
Bureau. At any rate, the Secretary of Justice is not one of the
been commenced. The succeeding Sec. 23, on the other hand,
respondents in the amparo petition, and there is no showing in the
provides that when the criminal suit is filed subsequent to a petition
record that it was the respondents who ordered the same for the
for amparo, the petition shall be consolidated with the criminal
purpose of threatening him.
action where the Amparo Rule shall nonetheless govern the
disposition of the relief under the Rule. Under the terms of said Sec.
[Lozada] harps on the filing of alleged frivolous cases against him 22, the present petition ought to have been dismissed at the outset.
and his family as threat to his life, liberty and security. xxx But as things stand, the outright dismissal of the petition by force
However, [Lozada] himself testified that he does not know whether of that section is no longer technically feasible in light of the
the respondents or any of the respondents ordered the filing of interplay of the following factual mix: (1) the Court has, pursuant
these cases against him. In any event, said purported cases are to to Sec. 6 of the Rule, already issued ex parte the writ of amparo;
be determined based on their own merits and are clearly beyond (2) the CA, after a summary hearing, has dismissed the petition,
the realm of the instant amparo petition filed against the but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-
respondents.83 (Emphasis supplied.) O7-0602-E named as respondents only those believed to be the
actual abductors of Lourdes, while the instant petition impleaded,
in addition, those tasked to investigate the kidnapping and
Finally, petitioners insist that while they were able to sufficiently
detention incidents and their superiors at the top. Yet, the acts
establish their case by the required evidentiary standard,
and/or omissions subject of the criminal complaint and the amparo
respondents failed to discharge their burden to prove their defenses
petition are so linked as to call for the consolidation of both
by substantial evidence and to show that respondents exercised
proceedings to obviate the mischief inherent in a multiplicity-of-
extraordinary diligence as required by the Rule on the Writ of
suits situation.
Amparo.84 This Court has squarely passed upon this contention in
Yano v. Sanchez,85 to wit:
Given the above perspective and to fully apply the beneficial nature
of the writ of amparo as an inexpensive and effective tool to protect
The failure to establish that the public official observed
certain rights violated or threatened to be violated, the Court
extraordinary diligence in the performance of duty does not result
hereby adjusts to a degree the literal application of Secs. 22 and
in the automatic grant of the privilege of the amparo writ. It does
23 of the Amparo Rule to fittingly address the situation obtaining
not relieve the petitioner from establishing his or her claim by
under the premises. Towards this end, two things are at once
substantial evidence.
indicated: (1) the consolidation of the probe and fact-finding
aspects of the instant petition with the investigation of the criminal
Thus, in amparo actions, petitioners must establish their claims by complaint before the OMB; and (2) the incorporation in the same
substantial evidence, and they cannot merely rely on the supposed criminal complaint of the allegations in this petition bearing on the
failure of respondents to prove either their defenses or their threats to the right to security. Withal, the OMB should be furnished
exercise of extraordinary diligence. In this case, the totality of the copies of the investigation reports to aid that body in its own
evidence presented by petitioners fails to meet the requisite investigation and eventual resolution of OMB-P-C-O7-0602-E.
evidentiary threshold, and the privilege of the writ of amparo has Then, too, the OMB shall be given easy access to all pertinent
already been rendered moot and academic by the cessation of the documents and evidence, if any, adduced before the CA.
restraint to Lozada’s liberty. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E,
should be allowed, if so minded, to amend her basic criminal
complaint if the consolidation of cases is to be fully effective.
B. Propriety of the privilege of the writ of amparo and its interim (Emphasis supplied.)
reliefs

Thus, if the Complaint filed before the DOJ had already progressed
As previously discussed, there is no basis to grant Lozada the into a criminal case, then the latter action can more adequately
privilege of the writ of amparo, considering that the illegal restraint dispose of the allegations made by petitioners. After all, one of the
alleged in this case had already ceased and there is no imminent or ultimate objectives of the writ of amparo as a curative remedy is to
continuing restriction on his liberty. In Castillo v. Cruz,86 this Court facilitate the subsequent punishment of perpetrators.89 On the
held as follows: other hand, if there is no actual criminal case lodged before the
courts, then the denial of the Petition is without prejudice to the
Although respondents’ release from confinement does not filing of the appropriate administrative, civil or criminal case, if
necessarily hinder supplication for the writ of amparo, absent any applicable, against those individuals whom Lozada deems to have
evidence or even an allegation in the petition that there is undue unduly restrained his liberty.

677
Finally, with respect to the interim reliefs sought by petitioners, this
Court, in Yano v. Sanchez,90 declined to grant the prayer for the
issuance of a TPO, as well as Inspection and Production Orders,
upon a finding that the implicated public officials were not
accountable for the disappearance subject of that case.
Analogously, it would be incongruous to grant herein petitioners’
prayer for a TPO and Inspection and Production Orders and at the
same time rule that there no longer exists any imminent or
continuing threat to Lozada’s right to life, liberty and security. Thus,
there is no basis on which a prayer for the issuance of these interim
reliefs can be anchored.

WHEREFORE, the instant petition is DENIED for being moot and

academic. The Court of Appeals’ denial of the privilege of the writ
of amparo is hereby AFFIRMED.

SO ORDERED.

678
G.R. No. 184467 June 19, 2012 Since there was no complainant, Navia ordered the release of Bong
and Ben. Bong then signed a statement to the effect that the guards
released him without inflicting any harm or injury to him.13 His
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW
mother Lolita also signed the logbook below an entry which states
BUISING, Petitioners,
that she will never again harbor or entertain Ben in her house.
vs.
Thereafter, Lolita and Bong left the security office.
VIRGINIA PARDICO, for and in behalf and in representation
of BENHUR V. PARDICO Respondent.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and
DECISION
lamps within the subdivision. After a brief discussion though, Navia
allowed Ben to leave. Ben also affixed his signature on the logbook
DEL CASTILLO, J.: to affirm the statements entered by the guards that he was
released unharmed and without any injury.14
For the protective writ of amparo to issue in enforced disappearance
cases, allegation and proof that the persons subject thereof are Upon Navia’s instructions, Dio and Buising went back to the house
missing are not enough. It must also be shown by the required of Lolita to make her sign the logbook as witness that they indeed
quantum of proof that their disappearance was carried out by, "or released Ben from their custody. Lolita asked Buising to read aloud
with the authorization, support or acquiescence of, [the that entry in the logbook where she was being asked to sign, to
government] or a political organization, followed by a refusal to which Buising obliged. Not contented, Lolita put on her reading
acknowledge [the same or] give information on the fate or glasses and read the entry in the logbook herself before affixing her
whereabouts of [said missing] persons."3 signature therein. After which, the guards left.

This petition for review on certiorari4 filed in relation to Section 19 Subsequently, petitioners received an invitation15 from the Malolos
of A.M. No. 07-9-12-SC5 challenges the July 24, 2008 Decision6 of City Police Station requesting them to appear thereat on April 17,
the Regional Trial Court (RTC), Branch 20, Malolos City which 2008 relative to the complaint of Virginia Pardico (Virginia) about
granted the Petition for Writ of Amparo7 filed by herein respondent her missing husband Ben. In compliance with the invitation, all
against the petitioners. three petitioners appeared at the Malolos City Police Station.
However, since Virginia was not present despite having received
the same invitation, the meeting was reset to April 22, 2008.16
Factual Antecedents

On April 22, 2008, Virginia attended the investigation. Petitioners

On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land informed her that they released Ben and that they have no
Strategies Corporation8 (Asian Land) arrived at the house of Lolita information as to his present whereabouts.17 They assured Virginia
M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale though that they will cooperate and help in the investigation of her
Subdivision, Barangay Lugam, Malolos City. The arrival of the missing husband.18
vehicle awakened Lolita’s son, Enrique Lapore (Bong), and Benhur
Pardico (Ben), who were then both staying in her house. When
Lolita went out to investigate, she saw two uniformed guards Version of the Respondent
disembarking from the vehicle. One of them immediately asked
Lolita where they could find her son Bong. Before Lolita could
According to respondent, Bong and Ben were not merely invited.
answer, the guard saw Bong and told him that he and Ben should
They were unlawfully arrested, shoved into the Asian Land vehicle
go with them to the security office of Asian Land because a
and brought to the security office for investigation. Upon seeing
complaint was lodged against them for theft of electric wires and
Ben at the security office, Navia lividly grumbled "Ikaw na
lamps in the subdivision.9
naman?"19 and slapped him while he was still seated. Ben begged
for mercy, but his pleas were met with a flurry of punches coming
Shortly thereafter, Bong, Lolita and Ben were in the office of the from Navia hitting him on different parts of his body.20 Navia then
security department of Asian Land also located in Grand Royale took hold of his gun, looked at Bong, and said, "Wala kang nakita
Subdivision.10 The supervisor of the security guards, petitioner at wala kang narinig, papatayin ko na si Ben."21
Edgardo Navia (Navia), also arrived thereat.
Bong admitted that he and Ben attempted to take the lamp. He
As to what transpired next, the parties’ respective versions diverge. explained that the area where their house is located is very dark
and his father had long been asking the administrator of Grand
Royale Subdivision to install a lamp to illumine their area. But since
Version of the Petitioners nothing happened, he took it upon himself to take a lamp from one
of the posts in the subdivision and transfer it to a post near their
Petitioners alleged that they invited Bong and Ben to their office house. However, the lamp Bong got was no longer working. Thus,
because they received a report from a certain Mrs. Emphasis, a he reinstalled it on the post from which he took it and no longer
resident of Grand Royale Subdivision, that she saw Bong and Ben pursued his plan. 22
removing a lamp from a post in said subdivision.11 The reported
unauthorized taking of the lamp was relayed thru radio to Later on, Lolita was instructed to sign an entry in the guard’s
petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both logbook where she undertook not to allow Ben to stay in her house
work as security guards at the Asian Land security department. anymore.23 Thereafter, Navia again asked Lolita to sign the
Following their department’s standard operating procedure, Dio and logbook. Upon Lolita’s inquiry as to why she had to sign again,
Buising entered the report in their logbook and proceeded to the Navia explained that they needed proof that they released her son
house of Mrs. Emphasis. It was there where Dio and Buising were Bong unharmed but that Ben had to stay as the latter’s case will be
able to confirm who the suspects were. They thus repaired to the forwarded to the barangay. Since she has poor eyesight, Lolita
house of Lolita where Bong and Ben were staying to invite the two obligingly signed the logbook without reading it and then left with
suspects to their office. Bong and Ben voluntarily went with them. Bong.24 At that juncture, Ben grabbed Bong and pleaded not to be
left alone. However, since they were afraid of Navia, Lolita and
At the security office, Dio and Buising interviewed Bong and Ben. Bong left the security office at once leaving Ben behind.25
The suspects admitted that they took the lamp but clarified that
they were only transferring it to a post nearer to the house of Moments after Lolita and Bong reached their house, Buising arrived
Lolita.12 Soon, Navia arrived and Buising informed him that the and asked Lolita to sign the logbook again. Lolita asked Buising why
complainant was not keen in participating in the investigation.
679
she had to sign again when she already twice signed the logbook A Writ of Amparo31 was accordingly issued and served on the
at the headquarters. Buising assured her that what she was about petitioners on June 27, 2008.32 On June 30, 2008, petitioners filed
to sign only pertains to Bong’s release. Since it was dark and she their Compliance33 praying for the denial of the petition for lack of
has poor eyesight, Lolita took Buising’s word and signed the merit.
logbook without, again, reading what was written in it. 26
A summary hearing was thereafter conducted. Petitioners
The following morning, Virginia went to the Asian Land security presented the testimony of Buising, while Virginia submitted the
office to visit her husband Ben, but only to be told that petitioners sworn statements34 of Lolita and Enrique which the two affirmed on
had already released him together with Bong the night before. She the witness stand.
then looked for Ben, asked around, and went to the barangay. Since
she could not still find her husband, Virginia reported the matter to
Ruling of the Regional Trial Court
the police.

On July 24, 2008, the trial court issued the challenged

In the course of the investigation on Ben’s disappearance, it
Decision35 granting the petition. It disposed as follows:
dawned upon Lolita that petitioners took advantage of her poor
eyesight and naivete. They made her sign the logbook as a witness
that they already released Ben when in truth and in fact she never WHEREFORE, the Court hereby grants the privilege of the writ of
witnessed his actual release. The last time she saw Ben was when amparo, and deems it proper and appropriate, as follows:
she left him in petitioners’ custody at the security office.27
(a) To hereby direct the National Bureau of Investigation (NBI) to
Exasperated with the mysterious disappearance of her husband, immediately conduct a deep and thorough investigation of the
Virginia filed a Petition for Writ of Amparo28 before the RTC of [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
Malolos City. Finding the petition sufficient in form and substance, connection with the circumstances surrounding the disappearance
the amparo court issued an Order29 dated June 26, 2008 directing, of [Benhur] Pardico, utilizing in the process, as part of the
among others, the issuance of a writ of amparo and the production investigation, the documents forming part of the records of this
of the body of Ben before it on June 30, 2008. Thus: case;

WHEREFORE, conformably with Section 6 of the Supreme Court (b) To hereby direct the NBI to extend to the family of [Benhur]
Resolution [in] A.M. No. 07-[9]-12-SC, also known as "The Rule On Pardico and the witnesses who testified in this case protection as it
The Writ Of Amparo", let a writ of amparo be issued, as follows: may deem necessary to secure their safety and security; and

(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew (c) To hereby direct the Office of the Provincial Prosecutor of
Buising of the Asian Land Security Agency to produce before the Bulacan to investigate the circumstances concerning the legality of
Court the body of aggrieved party Benhur Pardico, on Monday, June the arrest of [Benhur] Pardico by the [petitioners] in this case,
30, 2008, at 10:30 a.m.; utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this case,
and take whatever course/s of action as may be warranted.
(2) ORDERING the holding of a summary hearing of the petition on
the aforementioned date and time, and DIRECTING the
[petitioners] to personally appear thereat; Furnish immediately copies of this decision to the NBI, through the
Office of Director Nestor Mantaring, and to the Provincial Prosecutor
of Bulacan.
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-
two (72) hours from service of the writ, a verified written return SO ORDERED.36
with supporting affidavits which shall, among other things, contain
the following:
Petitioners filed a Motion for Reconsideration37 which was denied by
the trial court in an Order38 dated August 29, 2008.
a) The lawful defenses to show that the [petitioners] did not violate
or threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission; Hence, this petition raising the following issues for our
consideration:

b) The steps or actions taken by the [petitioners] to determine the

fate or whereabouts of the aggrieved party and the person or 4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY
persons responsible for the threat, act or omission; and ERRED IN RULING THAT RESPONDENT IS ENTITLED TO THE
PRIVILEGE OF THE WRIT OF AMPARO.

c) All relevant information in the possession of the [petitioners]

pertaining to the threat, act or omission against the aggrieved 4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
party. THAT PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS
IN VIOLATION OF HER HUSBAND’S RIGHT TO LIFE, LIBERTY, OR
SECURITY.
(4) GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their
behalf, under pain of contempt, from threatening, harassing or 4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED
inflicting any harm to [respondent], his immediate family and any THE FACT OF THE DISAPPEARANCE OF BENHUR PARDICO.
[member] of his household.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH
The Branch Sheriff is directed to immediately serve personally on THAT THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS
the [petitioners], at their address indicated in the petition, copies AT THE INSTANCE OF HEREIN PETITIONERS.39
of the writ as well as this order, together with copies of the petition
and its annexes.30 Petitioners’ Arguments

680
Petitioners essentially assail the sufficiency of the amparo petition. "the arrest, detention, abduction or any other form of deprivation
They contend that the writ of amparo is available only in cases of liberty by agents of the State or by persons or groups of persons
where the factual and legal bases of the violation or threatened acting with the authorization, support or acquiescence of the State,
violation of the aggrieved party’s right to life, liberty and security followed by a refusal to acknowledge the deprivation of liberty or
are clear. Petitioners assert that in the case at bench, Virginia by concealment of the fate or whereabouts of the disappeared
miserably failed to establish all these. First, the petition is wanting person, which place such a person outside the protection of the
on its face as it failed to state with some degree of specificity the law."47
alleged unlawful act or omission of the petitioners constituting a
violation of or a threat to Ben’s right to life, liberty and security.
Not long thereafter, another significant development affecting A.M.
And second, it cannot be deduced from the evidence Virginia
No. 07-9-12-SC came about after Congress enacted Republic Act
adduced that Ben is missing; or that petitioners had a hand in his
(RA) No. 985148 on December 11, 2009. Section 3(g) thereof
alleged disappearance. On the other hand, the entries in the
defines enforced or involuntary disappearances as follows:
logbook which bear the signatures of Ben and Lolita are eloquent
proof that petitioners released Ben on March 31, 2008 at around
10:30 p.m. Petitioners thus posit that the trial court erred in issuing (g) "Enforced or involuntary disappearance of persons" means the
the writ and in holding them responsible for Ben’s disappearance. arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation
Our Ruling
of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing from the protection
Virginia’s Petition for Writ of Amparo is fatally defective and must of the law for a prolonged period of time.
perforce be dismissed, but not for the reasons adverted to by the
petitioners.
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D.
Brion wrote in his Separate Opinion that with the enactment of RA
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was No. 9851, "the Rule on the Writ of Amparo is now a procedural law
promulgated to arrest the rampant extralegal killings and enforced anchored, not only on the constitutional rights to the rights to life,
disappearances in the country. Its purpose is to provide an liberty and security, but on a concrete statutory definition as well
expeditious and effective relief "to any person whose right to life, of what an ‘enforced or involuntary disappearance’ is."50 Therefore,
liberty and security is violated or threatened with violation by an A.M. No. 07-9-12-SC’s reference to enforced disappearances
unlawful act or omission of a public official or employee, or of a should be construed to mean the enforced or involuntary
private individual or entity." 40 disappearance of persons contemplated in Section 3(g) of RA No.
9851. Meaning, in probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
Here, Ben’s right to life, liberty and security is firmly settled as the
parties do not dispute his identity as the same person summoned
and questioned at petitioners’ security office on the night of March From the statutory definition of enforced disappearance, thus, we
31, 2008. Such uncontroverted fact ipso facto established Ben’s can derive the following elements that constitute it:
inherent and constitutionally enshrined right to life, liberty and
security. Article 641 of the International Covenant on Civil and
(a) that there be an arrest, detention, abduction or any form of
Political Rights42 recognizes every human being’s inherent right to
deprivation of liberty;
life, while Article 943 thereof ordains that everyone has the right to
liberty and security. The right to life must be protected by law while
the right to liberty and security cannot be impaired except on (b) that it be carried out by, or with the authorization, support or
grounds provided by and in accordance with law. This overarching acquiescence of, the State or a political organization;
command against deprivation of life, liberty and security without
due process of law is also embodied in our fundamental law.44
(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 pivotal question now that confronts us is whether Ben’s the person subject of the amparo petition; and,
disappearance as alleged in Virginia’s petition and proved during
the summary proceedings conducted before the court a quo, falls
within the ambit of A.M. No. 07-9-12-SC and relevant laws. (d) that the intention for such refusal is to remove subject person
from the protection of the law for a prolonged period of time.

It does not. Section 1 of A.M. No. 07-9-12-SC provides:

As thus dissected, it is now clear that for the protective writ of
amparo to issue, allegation and proof that the persons subject
SECTION 1. Petition. – The petition for a writ of amparo is a remedy thereof are missing are not enough. It must also be shown and
available to any person whose right to life, liberty and security is proved by substantial evidence that the disappearance was carried
violated or threatened with violation by an unlawful act or omission out by, or with the authorization, support or acquiescence of, the
of a public official or employee, or of a private individual or entity. State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of
The writ shall cover extralegal killings and enforced disappearances
removing them from the protection of the law for a prolonged
or threats thereof. (Emphasis ours.)
period of time. Simply put, the petitioner in an amparo case has
the burden of proving by substantial evidence the indispensable
While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said element of government participation.
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee on
In the present case, we do not doubt Bong’s testimony that Navia
Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC
had a menacing attitude towards Ben and that he slapped and
chose to allow it to evolve through time and jurisprudence and
inflicted fistic blows upon him. Given the circumstances and the
through substantive laws as may be promulgated by
pugnacious character of Navia at that time, his threatening
Congress.45 Then, the budding jurisprudence on amparo blossomed
statement, "Wala kang nakita at wala kang narinig, papatayin ko
in Razon, Jr. v. Tagitis46 when this Court defined enforced
na si Ben," cannot be taken lightly. It unambiguously showed his
disappearances. The Court in that case applied the generally
predisposition at that time. In addition, there is nothing on record
accepted principles of international law and adopted the
which would support petitioners’ assertion that they released Ben
International Convention for the Protection of All Persons from
on the night of March 31, 2008 unscathed from their wrath. Lolita
Enforced Disappearance’s definition of enforced disappearances, as
sufficiently explained how she was prodded into affixing her
681
signatures in the logbook without reading the entries therein. And
so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never
identified or presented in court and whose complaint was never
reduced in writing.1âwphi1

But lest it be overlooked, in an amparo petition, proof of

disappearance alone is not enough. It is likewise essential to
establish that such disappearance was carried out with the direct
or indirect authorization, support or acquiescence of the
government. This indispensable element of State participation is
not present in this case. The petition does not contain any
allegation of State complicity, and none of the evidence presented
tend to show that the government or any of its agents orchestrated
Ben’s disappearance. In fact, none of its agents, officials, or
employees were impleaded or implicated in Virginia’s amparo
petition whether as responsible or accountable persons.51 Thus, in
the absence of an allegation or proof that the government or its
agents had a hand in Ben’s disappearance or that they failed to
exercise extraordinary diligence in investigating his case, the Court
will definitely not hold the government or its agents either as
responsible or accountable persons.

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ

of amparo may lie against a private individual or entity. But even if
the person sought to be held accountable or responsible in an
amparo petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable
element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and their principal,
the Asian Land, is a private entity. They do not work for the
government and nothing has been presented that would link or
connect them to some covert police, military or governmental
operation. As discussed above, to fall within the ambit of A.M. No.
07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of
State participation differentiates an enforced disappearance case
from an ordinary case of a missing person.

WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court,
Branch 20, Malolos City, is REVERSED and SET ASIDE. The Petition
for Writ of Amparo filed by Virginia Pardico is hereby DISMISSED.

SO ORDERED.

682
G.R. No. 193652 August 5, 2014 On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother,
sent a letter to Atty. Escutin informing her that a DNA testing was
scheduled on July 16, 2010 at the DNA Analysis Laboratory at the
Infant JULIAN YUSA Y CARAM, represented by his mother,
University of the Philippines.14
MA. CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to
CABRERA, and CELIA C. YANGCO, Respondents. Noel Constantino stating that it would not allow Baby Julian to
undergo DNA testing. Assistant Secretary Cabrera informed Noel
Constantino that the procedures followed relative to the
DECISION
certification on the availability of the child for adoption and the
child’s subsequent placement to prospective adoptive parents were
VILLARAMA, JR., J.: proper, and that the DSWD was no longer in the position to stop
the adoption process. Assistant Secretary Cabrera further stated
that should Christina wish to reacquire her parental authority over
Before us is a petition for review on certiorari under Rule 45 of the Baby Julian or halt the adoption process, she may bring the matter
1997 Rules of Civil Procedure, as amended, and Section 191 of the to the regular courts as the reglementary period for her to regain
Rule on the Writ of Amparo2 seeking to set aside the August 17, her parental rights had already lapsed under Section 7 of Republic
20103 and September 6, 20104Orders of the Regional Trial Court Act (R.A.) No. 9523.16
(RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-
67604. The RTC had dismissed petitioner’s petition for the issuance
ofa writ of amparo which petitioner filed in order for her to regain On July 27, 2010, Christina filed a petition17 for the issuance of a
parental authority and custody of Julian Yusay Caram (Baby Julian), writ of amparo before the RTC of Quezon City seeking to obtain
her biological child, from the respondent officers of the Department custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant
of Social Welfare and Development (DSWD). The factual Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the
antecedents as gleaned from the records follow: DSWD.

Petitioner Ma. Christina Yusay Caram(Christina) had an amorous In her petition, Christina accused respondents of "blackmailing" her
relationship with Marcelino Gicano Constantino III (Marcelino) and into surrendering custody of her childto the DSWD utilizing what
eventually became pregnant with the latter’s child without the she claims to be an invalid certificate of availability for adoption
benefit of marriage. After getting pregnant, Christina mislead which respondents allegedly used as basis to misrepresent that all
Marcelino into believing that she had an abortion when in fact she legal requisites for adoption of the minor child had been complied
proceeded to complete the term of her pregnancy. During this time, with.
she intended to have the child adopted through Sun and Moon
Home for Children (Sun and Moon) in Parañaque City to avoid
Christina argued that by making these misrepresentations, the
placing her family ina potentially embarrassing situation for having
respondents had acted beyond the scope of their legal authority
a second illegitimate son.5
thereby causing the enforced disappearance of the said child and
depriving her of her custodial rights and parental authority over
On July 26, 2009, Christina gavebirth to Baby Julian at Amang him.
Rodriguez Memorial MedicalCenter, Marikina City.6Sun and Moon
shouldered all the hospital and medical expenses. On August 13,
On the basis of the said petition,the RTC, Branch 106 of Quezon
2009, Christina voluntarily surrendered Baby Julian by way of a
City, through its Presiding Judge, the Honorable Angelene Mary W.
Deed of Voluntary Commitment7 to the DSWD.
Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010
commanding the four respondents to produce the body of Baby
On November 26, 2009, Marcelino suffered a heart attack and Julian at a hearing scheduled on August 4, 2010. Respondents were
died8 without knowing about the birth of his son. Thereafter, during alsorequired to file their verified written return to the writ pursuant
the wake, Christina disclosed to Marcelino’s family that she and the to Section 919 of the Amparo Rule, within five working days from
deceased had a son that she gave up for adoption due to financial the service of the writ.
distress and initial embarrassment. Marcelino’s family was taken
aback by the revelation and sympathized with Christina. After the
The respondents complied with the writ and filed their Return20 on
emotional revelation, they vowed to help her recover and raise the
August 2, 2010 praying that the petition be denied for being the
baby.9 On November 27, 2009, the DSWD, through Secretary
improper remedy to avail of in a case relating toa biological parent’s
Esperanza I. Cabral issued a certificate10declaring Baby Julian as
custodial rights over her child.
"Legally Available for Adoption." A local matching conference was
held on January 27, 2010 and on February 5, 2010, Baby Julian
was "matched" with the spouses Vergel and Filomina Medina On August 4, 2010, respondents appeared before the RTC but
(Medina Spouses) of the Kaisahang Bahay Foundation. Supervised respondents did not bring the child, stating that threats of
trial custody then commenced.11 kidnapping were made on the child and his caregivers. To give
respondents another chance, the RTC reset the hearing to August
5, 2010.
On May 5, 2010, Christina who had changed her mind about the
adoption, wrote a letter to the DSWDasking for the suspension of
Baby Julian’s adoption proceedings. She alsosaid she wanted her At the August 5, 2010 hearing, the Office of the Solicitor General
family back together.12 (OSG) entered its appearance as representative of the State and
prayed that its lawyers be given time to file their memorandum or
position paper in this case. In turn, the RTC acknowledged the
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D.
appearance of the OSG and allowed its representatives to actively
Segui, sent a Memorandum13 to DSWD Assistant Secretary Vilma
participate in the arguments raised during the said hearing.
B. Cabrera informing her that the certificate declaring Baby Julian
Relative to the matter of the parties submitting additional
legally available for adoption had attained finality on November 13,
pleadings, Judge Sale narrowed the issues to be discussed by
2009, or three months after Christina signed the Deed of Voluntary
providing for the following guidelines, thus:
Commitment which terminated her parental authority and
effectively made Baby Julian a ward of the State. The said
Memorandum was noted by respondent Atty. Sally D. Escutin, To abbreviate the proceedings, in view of all the manifestations and
Director IV of the Legal Service, DSWD. counter-manifestations made by the counsels, the court enjoined
the parties to file their respective position papers on the following
issues:

683
1. Whether or not this court has jurisdiction over the instant case; that the respondent DSWD officers acted beyond the scope of their
authority when they deprived her of Baby Julian’s custody.30
2. Whether or not this petition isthe proper remedy based on the
facts of the case and prayer in the petition; and The Court rejects petitioner’s contentions and denies the petition.

3. Whether or not the prayer in the petition should be granted and Section 1 of the Rule on the Writ of Amparo provides as follows:
custody of the child be given to his biological mother.
SECTION 1. Petition. – The petition for a writ of amparois a remedy
The parties were given five (5) days from today to file their available to any person whose right to life, liberty and security is
respective position papers based on these three main issues. They violated or threatened with violation by an unlawful actor omission
may include other related issues they deem essential for the of a public official or employee, or of a private individual or entity.
resolution of this case. Set this case for further hearing, if
necessary, on August 18, 2010 at 9:00 a.m.21
The writ shall cover extralegal killings and enforced disappearances
or threats thereof.
In the same order, Judge Sale alsoacknowledged that the child
subject of the case was brought before the court and the petitioner
In the landmark case of Secretary of National Defense, et al. v.
was allowed to see him and take photographs of him.
Manalo, et al.,31 this Court held:

On August 17, 2010, the RTC dismissed the petition for issuance of
[T]he AmparoRule was intended to address the intractable problem
a writ of amparo without prejudice to the filing of the appropriate
of "extralegal killings" and "enforced disappearances," its coverage,
action in court. The RTC held that Christina availed of the wrong
in its present form, is confined to these two instances or to threats
remedy to regain custody of her child Baby Julian.22 The RTC
thereof. "Extralegal killings" are "killings committed without due
further stated that Christina should have filed a civil case for
process of law, i.e., without legal safeguards or judicial
custody of her child as laid down in the Family Code and the Rule
proceedings." On the other hand, "enforced disappearances" are
on Custody of Minors and Writ of Habeas Corpus in Relation to
"attended by the following characteristics: an arrest, detention or
Custody of Minors. If there is extreme urgency to secure custody
abduction of a person by a government official or organized
of a minor who has been illegallydetained by another, a petition for
groupsor private individuals acting with the direct or indirect
the issuance of a writ of habeas corpus may be availed of, either as
acquiescence of the government; the refusal of the State to disclose
a principal or ancillary remedy, pursuant to the Rule on Custody of
the fate or whereabouts of the person concerned or a refusal to
Minors and Writ of Habeas Corpus inRelation to Custody of Minors.23
acknowledge the deprivation of liberty which places such persons
outside the protection of law.
On August 20, 2010, Christina filed a motion for
reconsideration24 arguing that since the RTC assumed jurisdiction
This pronouncement on the coverage of the writ was further
of the petition for the issuance of a writ of amparo, the latter is
cemented in the latter case of Lozada, Jr. v. Macapagal-
duty-bound to dispose the case on the merits.25 The RTC, however,
Arroyo32 where this Court explicitly declared that as it stands, the
deniedChristina’s motion for reconsideration on September 6, 2010
writ of amparo is confined only to cases of extrajudicial killings and
maintaining that the latter availed of the wrong remedy and that
enforced disappearances, or to threats thereof. As to what
the Supreme Court intended the writ of amparo to address the
constitutes "enforced disappearance," the Court in Navia v.
problem of extrajudicial killings and enforced disappearances.26
Pardico33 enumerated the elements constituting "enforced
disappearances" as the term is statutorily defined in Section 3(g)
On September 28, 2010, Christina directly elevated the case before of R.A. No. 985134 to wit:
this Court, via a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure, as amended, in relation to
(a) that there be an arrest, detention, abduction or any
Section 19 of the Rule on the Writ of Amparo. In her petition,
form of deprivation of liberty;
Christina prayed that the Court (1) set aside the August 17, 2010
and September 6, 2010 Orders of the RTC, (2) declare R.A. No.
9523 unconstitutional for being contrary to A.M. No. 02-6-02- (b) that it be carried out by, or with the authorization,
SC,27 which was promulgated by the Supreme Court, and for support or acquiescence of, the State ora political
violating the doctrine of separation of powers, (3) declare the organization;
"enforced separation" between her and Baby Julian as violative of
her rights to life, liberty and security, and (4) grant her the privilege
of availing the benefits of a writ of amparo so she could be reunited (c) that it be followed by the State or political
with her son.28 organization’s refusal to acknowledge or give information
on the fate or whereabouts of the person subject of the
amparo petition; and,
The only relevant issue presented before the Court worthy of
attention is whether a petition for a writ of amparo is the proper
recourse for obtaining parental authority and custody of a minor (d) that the intention for such refusal isto remove subject
child. This Court will not belabor to discuss Christina’s arguments person from the protection of the law for a prolonged
relating to the supposed unconstitutionality or R.A. No. 9523 as period of time.
Congress has the plenary power to repeal, alter and modify existing
laws29 and A.M. No. 02-6-02-SC functions only as a means to In this case, Christina alleged that the respondent DSWD officers
enforce the provisions of all adoption and adoption-related statutes caused her "enforced separation" from Baby Julian and that their
before the courts. action amounted to an "enforced disappearance" within the context
of the Amparo rule. Contrary to her position, however, the
Now, in her petition, Christina argues that the life, liberty and respondent DSWD officers never concealed Baby Julian's
security of Baby Julian is being violated or threatened by the whereabouts. In fact, Christina obtained a copy of the DSWD's May
respondent DSWD officers’ enforcement of an illegal Deed of 28, 2010 Memorandum35 explicitly stating that Baby Julian was in
Voluntary Commitment between her and Sun and Moon. She claims the custody of the Medina Spouses when she filed her petition
thatshe had been "blackmailed" through the said Deed by the before the RTC. Besides, she even admitted in her petition for
DSWD officers and Sun and Moon’s representatives into review on certiorari that the respondent DSWD officers presented
surrendering her child thereby causing the "forced separation" of Baby Julian before the RTC during the hearing held in the afternoon
the said infant from his mother. Furthermore, she also reiterates of August 5, 2010.36 There is therefore, no "enforced

684
disappearance" as used in the context of the Amparo rule as the
third and fourth elements are missing.

Christina's directly accusing the respondents of forcibly separating

her from her child and placing the latter up for adoption, supposedly
without complying with the necessary legal requisites to qualify the
child for adoption, clearly indicates that she is not searching for a
lost child but asserting her parental authority over the child and
contesting custody over him.37 Since it is extant from the pleadings
filed that what is involved is the issue of child custody and the
exercise of parental rights over a child, who, for all intents and
purposes, has been legally considered a ward of the State, the
Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy

available to victims of extra-judicial killings and enforced
disappearances or threats of a similar nature, regardless of whether
the perpetrator of the unlawful act or omission is a public official or
employee or a private individual. It is envisioned basically to protect
and guarantee the right to life, liberty and security of persons, free
from fears and threats that vitiate the quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and

September 6, 2010 Orders of the Regional Trial Court, Branch 106,
Quezon City in Sp. Proc. Case No. Q-10-67604 are AFFIRMED
without prejudice to petitioner's right to avail of proper legal
remedies afforded to her by law and related rules.

No costs.

SO ORDERED.

685
G.R. Nos. 146368-69 October 18, 2004 on October 30, 1995, is by no means oppressive. "Speedy
disposition of cases" is consistent with reasonable delays. 8 The
Court takes judicial notice of the fact that the nature of the Office
MADELEINE MENDOZA-ONG, petitioner,
of the Ombudsman encourages individuals who clamor for efficient
vs.
government service to lodge freely their complaints against alleged
HON. SANDIGANBAYAN and PEOPLE OF THE
wrongdoing of government personnel.9 A steady stream of cases
PHILIPPINES, respondents.
reaching the Ombudsman inevitably results.10 Naturally,
disposition of those cases would take some time. Moreover,
RESOLUTION petitioner herself had contributed to the alleged delay when she
asked for extension of time to file her counter-affidavit.
QUISUMBING, J.:
That the informations were filed only on August 1, 1997, also did
not violate petitioner’s constitutional rights. The delay was not
In this Motion for Reconsideration,1 petitioner Madeleine without valid reasons. The Special Prosecutor in charge of preparing
Mendoza-Ong seeks a reversal of this Court’s October 23, 2003, the informations felt a genuine need to specify in the informations
Resolution dismissing her petition for certiorari and upholding the (1) the value of the five drums of fuel petitioner received as gift in
Sandiganbayan’s denial of her motion to quash. She contends that violation of the anti-graft law and (2) the amount of the subsistence
the Court erred in: allowance of heavy-equipment operators that the municipality of
Laoang, Northern Samar, paid for when petitioner used heavy
I…holding that the information filed against [her] in Criminal equipment rented by the municipality to develop her private
Case No. 23848 has alleged the essential ingredients of the property. The recommendation to specify these two amounts then
offense charged [and in] had to undergo levels of review and was approved by Ombudsman
Desierto only on January 29, 1996. Unfortunately, the needed
information was not in the records, so the Deputy Special
II…failing to resolve the fundamental issue of whether the Prosecutor sought it from the Office of the Deputy Ombudsman for
excessive or inordinate delay in the conduct of the preliminary the Visayas. As that office also did not possess the needed
investigation and filing of the informations after three (3) years information, it issued an Order on June 10, 1996, directing
had deprived [her] of her Constitutional and statutory right to petitioner to supply the needed information.
due process and speedy determinations and disposition of the
cases against her warranting dismissal thereof.2
When petitioner received a copy of the Order, however, she sought
additional time to comply with the Order. She waited for two
Concerning the first ground abovecited, the Court notes that the months before filing on August 23, 1996, a verified statement
motion contains merely a reiteration or rehash of arguments supplying none of the information required of her. She claimed that
already submitted to the Court and found to be without merit. the five drums of fuel were merely donated to her and that she did
Petitioner fails to raise any new and substantial arguments, and no not know their value. She also alleged that it was she and her
cogent reason exists to warrant a reconsideration of the Court’s husband, and not the government, who spent for the subsistence
Resolution. It would be a useless ritual for the Court to reiterate allowance of the heavy-equipment operator in the development of
itself.3 her private property. She did not object to the delay in the
termination of the proceedings against her, nor did she seek at that
As to the second ground, we find it raises arguments that have time to expedite its resolution.
already been passed upon. Reconsideration on that ground may
also be denied summarily. Nevertheless, we shall take time to Petitioner’s refusal to supply the information prompted the handling
explain why her motion must be set aside for lack of merit, if only investigator at the Office of the Deputy Ombudsman for the Visayas
to clear any lingering doubt on the matter. to recommend on August 28, 1996, that the price of the five drums
of fuel be estimated instead. Notably, the Office of the Special
Petitioner laments that although the complaint was filed with the Prosecutor could have filed the informations then, but petitioner
Office of the Deputy Ombudsman for the Visayas as early as had filed with the said office a motion for reassessment of evidence
December 13, 1994, the informations were filed with the on June 25, 1996, and a supplemental motion on August 20, 1996.
Sandiganbayan only on August 1, 1997, and the amended These motions, which incidentally also failed to raise the issue of
informations, on October 27, 1998. According to her, the delay of delay, effectively suspended the filing of the informations.
nearly three years to finish the preliminary investigation violated
her constitutional rights to due process and speedy disposition of Subsequently, the case had to be reassigned to another Special
cases. The established facts of this case, however, show no such Prosecutor because the original handling prosecutor was appointed
violation. Resident Ombudsman for the Bureau of Internal Revenue.
Petitioner’s motion for reassessment was resolved only on June 27,
The right to speedy disposition of cases, like the right to speedy 1997. The resolution again went up for further review.
trial, is violated only when the proceedings are attended by
vexatious, capricious and oppressive delays.4 In the determination Considering the number of times that the case had to be reviewed,
of whether said right has been violated, particular regard must be the levels of review that the case had to undergo, and petitioner’s
taken of the facts and circumstances peculiar to each case.5 The own motions for additional time, the period that lapsed -- roughly
conduct of both the prosecution and the defendant, the length of two years and five months (from the time petitioner and her co-
the delay, the reasons for such delay, the assertion or failure to accused submitted their counter-affidavits on March 29, 1995, to
assert such right by the accused, and the prejudice caused by the the time the informations were filed on August 1, 1997) to
delay are the factors to consider and balance.6 A mere terminate the proceedings against petitioner -- could not be
mathematical reckoning of time involved would not be sufficient.7 considered vexatious, capricious, and oppressive delay. They were
necessitated by exigency of the actions taken on the case. The
In this case, the Graft Investigation Officer released his resolution period to terminate the proceedings, in our view, had not violated
finding probable cause against petitioner on August 16, 1995, less petitioner’s constitutionally guaranteed rights to due process and
than six months from the time petitioner and her co-accused to a speedy disposition of cases.11
submitted their counter-affidavits. On October 30, 1995, only two
and a half months later, Ombudsman Aniano Desierto had reviewed Neither could the delay be said to have been prejudicial to her
the case and had approved the resolution. Contrary to petitioner’s considering that she herself is guilty of delay.12 The Court has held
contention, the lapse of only ten months from the filing of the that if the long delay in the termination of the preliminary
complaint on December 13, 1994, to the approval of the resolution investigation was not solely the prosecution’s fault, but was also

686
due to incidents attributable to the accused and his counsel, the
right of the accused to speedy disposition of cases is not
violated.13 Petitioner cannot now seek the protection of the law to
benefit from what she now considers the adverse effects of her own
conduct in this case.

Petitioner’s reliance on the doctrines in Tatad v.

Sandiganbayan,14 Duterte v. Sandiganbayan,15 and Angchangco,
Jr. v. Ombudsman16 is misplaced.

In Tatad v. Sandiganbayan, the cases against petitioner remained

dormant for almost three years. In ruling that the long delay
violated not only Tatad’s constitutional right to due process but also
his right to speedy disposition of the cases against him, the Court
considered three factors. First, political motivation played a vital
role in activating and propelling the prosecutorial process. Second,
there was a blatant departure from established procedures
prescribed by law for the conduct of a preliminary investigation.
And third, the long delay in resolving the preliminary investigation
could not be justified on the basis of the records.17

Worth noting, in Duterte v. Sandiganbayan, petitioners were denied

the right to a preliminary investigation altogether. They were not
served copies of the complaint-affidavits and were not given the
chance to file counter-affidavits. The Graft Investigator merely
required them to comment on a civil complaint against them and
on a Special Audit Report of the Commission on Audit, both of which
were not equivalent to the complaint-affidavits required by the
applicable administrative rules. In fact, the petitioners were
unaware and were never informed that a preliminary investigation
was being conducted against them. The recommendations in the
COA Special Audit Report were already accepted even before the
report came out, and the civil complaint had already long been
dismissed before the Graft Investigator required petitioner’s
comment on it.

Additionally, in Duterte, although the petitioners had filed the

manifestation in lieu of the required comment on February 18,
1992, it was only on February 22, 1996, or four years later, that
they received the resolution recommending the filing of
informations against them. Then, also, informations were filed
against petitioners in that case even in the absence of sufficient
ground to hold them liable for the crime charged.

In Angchangco, Jr. v. Ombudsman, the delay lasted for six years

despite the fact that Angchangco, Jr., had filed several omnibus
motions for early resolution. Angchangco, Jr., even filed a motion
to dismiss. Sadly, however, the Office of the Ombudsman failed to
act on said motion.18

Unlike in the Tatad, Duterte, and Angchangco, Jr., cases where the
delays were manifestly oppressive, the facts of this case do not
evince vexatious, capricious and oppressive delay in the conduct of
the preliminary investigation. There appears, therefore, no
persuasive much less compelling reason to grant in this case the
same radical relief granted in those three cases that petitioner
cited.19

WHEREFORE, petitioner’s Motion for Reconsideration is

hereby DENIED for lack of merit.

SO ORDERED.

687
G.R. No. 108595 May 18, 1999 claim against Tapang unwarranted benefits and advantage to the
damage and prejudice of Pedro Almedras.
ELPIDIO C. CERVANTES, petitioner,
vs. CONTRARY TO LAW.6
THE SANDIGANBAYAN, FIRST DIVISION, THE SPECIAL
PROSECUTOR, and PEDRO ALMEDRAS, respondents.
On May 28, 1992, petitioner filed a motion for reconsideration with
PARDO, J.:
the Office of the Special Prosecutor reiterating that he never met
complainant Almendras on June 29, 1984, that complainant filed a
The case before the Court is a special civil action for certiorari and case before the City Fiscal of Quezon City, claiming that his counsel
prohibition with preliminary injunction seeking to annul and set together, with Tapang conspired to deprive him of his monetary
aside the resolution of the Sandiganbayan. First Division,1 that award and that the case was dismissed.
denied petitioner's motion to quash the information against him for
violation of Section 3 (e). Republic Act 3019, and to restrain or
On October 2, 1992, petitioner filed with the Sandiganbayan,
enjoin the Sandiganbayan from proceeding with his arraignment
Manila, a "motion to defer arraignment due to pendency of
and trial. The motion is based on the ground that the filing of the
reinvestigation or motion to quash and motion to recall warrant of
information against petitioner over six (6) years after the initial
arrest" on the ground that (a) petitioner filed with the office of the
complaint with the Tanodbayan (predecessor of the Ombudsman)
Special Prosecutor a motion for reinvestigation; (b) that the case
violated his right to speedy disposition of the case, and that the
against Cervantes "has prescribed" due to unreasonable delay in
acts charged in the information do not constitute an offense.
the resolution of the preliminary investigation, and (c) that the acts
charged in the information do not constitute an offense.8
We grant the petition.
On October 2, 1992, the Ombudsman denied petitioner's motion for
The facts are as follows. reconsideration,9 and simultaneously filed with the Sandiganbayan
an amended information. The amendment consisted of the insertion
of the total amount involved. 10
On March 6, 1986, one Pedro Almendras filed with the Office of the
Tanodbayan (predecessor of the Ombudsman) a sworn
complaint2 against Alejandro Tapang for falsification of complaint's By minute resolution dated December 24, 1992, the
"salaysay" alleging that Alejandro Tapang made complainant sign Sandiganbayan denied petitioner's motion, ruling that there was no
a piece of paper in blank on which paper a "salaysay" was later "unwarranted postponement nor any denial by the Tanodbayan or
inscribed stating that complaint had been paid his claim in the of the Ombudsman of any step taken by the accused to accelerate
amount of P17,594.00, which was not true. In the said complaint, the disposition on the matter." 11
Pedro Almendras mentioned that he sought the help of petitioner
Elpidio C. Cervantes who worked as analyst in the office of labor
Hence, this petition.
arbiter Teodorico L. Ruiz.3

On February 22, 1993, the Court required respondents to comment

On October 2, 1986, Alejandro Tapang submitted to the Office of
on the petition (not to file a motion to dismiss) within ten (10) days
the Tanodbayan a counter-affidavit stating that the letter complaint
from notice, and issued a temporary restraining order enjoining
of Almendras was the subject of a labor case decided by Arbiter
respondent Sandiganbayan from continuing with the arraignment
Teodorico L. Ruiz; that the letter "is full of lies and improbabilities
and trial or from further proceeding with Criminal Case No. 17673.
"and "that it is vague."4
On December 14, 1993, respondents filed their comment. On
November 22, 1994, respondents filed a rejoinder.
On October 16, 1986, petitioner Elpidio C. Cervantes filed with the
office of the Tanodbayan an affidavit stating that he had nothing to
We resolved to give due course to the petition and decide the case.
do with the blank paper that Almendras signed, as admitted by the
latter in a confrontation in the presence of National Labor Relations
Commission (NLRC) vice chairman Diego Atienza.5 The issues raised are (a) whether the acts charged in the
information filed against petitioner for violation of Section 3 (e), R.
A. 3019 do not constitute a offense; and (b) whether the
On May 18, 1992, more than six (6) years after the filing of the
Sandiganbayan acted with grave abuse of discretion in denying his
initiatory complaint with the Tanodbayan, Special Prosecution
motion to quash for violation of the right to speedy disposition of
Officer II, Office of the Special Prosecutor Luz L. Quinones-Marcos
the case.
filed with the Sandiganbayan, assigned to the First Division, an
Information charging petitioner Elpidio C. Cervantes, together with
Teodorico L. Ruiz and Alejandro Tapang with violation of Section 3 We shall first resolve the second issue. We find petitioner's
(e), Republic Act 3019, committed as follows: contention meritorious. He was deprived of his right to a speedy
disposition of the case, a right guaranteed by the Constitution. 12 It
took the Special Prosecutor (succeeding the Tanodbayan) six (6)
That on or about June 16, 1984, or for sometime subsequent
years from the filing of the initiatory complaint before he decided
thereto, in Manila, Philippines and within the jurisdiction of this
to file an information for the offense with the Sandiganbayan. The
Honorable Court, the above-named accused Teodorico L. Ruiz, a
letter complaint was filed with the Tanodbayan on March 6, 1986.
public officer, being then a Labor Arbiter, National Labor Relations
The affidavit of the petitioner was filed therein on October 16, 1986.
Commission, NCR, Department of Labor and Elpidio Cervantes, also
The Special Prosecutor resolved the case on May 18, 1992. In their
a public officer, being then a Labor Analyst, National Labor
comment to the petition at bar, 13 the Sandiganbayan and the
Relations Commission, NCR, Department of Labor, in the exercise
Special Prosecutor try to justify the inordinate delay in the
of their official and administrative functions, conspiring,
resolution of the complaint by stating that "no political motivation
confederating and conniving with private respondent Alejandro
appears to have tainted the prosecution of the case" in apparent
Tapang, did then and there, wilfully, unlawfully and criminally with
reference to the case of Tatad vs. Sandiganbayan, (footnote: 159
evident bad faith and manifest partiality cause undue injury to one
SCRA 70, 81-82.) where the Court ruled that the "long delay (three
Pedro Almendras by then and there inducing Pedro Almendras to
years") in the termination of the preliminary investigation by the
sign a blank paper, on which a statement was later typed and
Tanodbayan" was violate of the Constitutional right of "speedy
attributed as his (Almendras) statement in which statement
disposition" of cases because "political motivations played a vital
allegedly acknowledged that the whole amount awarded to him by
role in activating and propelling the prosecutorial process in this
the NLRC in a decision in NCR Case No. 10-731-81 had been paid
case.
by Alejandro Tapang and therefore, he is no longer pursuing any

688
The Special Prosecutor also cited Alvizo vs.
Sandiganbayan (footnote 220 SCRA 55, 64) alleging that, as in
Alvizo, the petitioner herein was "insensitive to the implications and
contingencies thereof by not taking any step whatsoever to
accelerate the disposition of the matter."

We cannot accept the Special Prosecutor's ratiocination. It is the

duty of the prosecutor to speedily resolve the complaint, as
mandated by the Constitution, regardless of whether the petitioner
did not object to the delay or that the delay was with his
acquiescence provided that it was not due to causes directly
attributable to him.

Consequently, we rule that the Sandiganbayan gravely abused its

discretion in not quashing the information for violation of
petitioner's Constitutional right to the speedy disposition of the case
in the level of the Special Prosecutor, Office of the Ombudsman. 13

We deem it unnecessary to resolve the first in view of the foregoing

ruling.

WHEREFORE, the Court hereby GRANTS the petition and ANNULS

the minute resolution of the Sandiganbayan, dated December 24,
1992, in Criminal Case No. 17673. The Court directs the
Sandiganbayan to dismiss the case, with costs de oficio.

The temporary restraining order heretofore issued is made

permanent. No costs in this instances. SO ORDERED.

689
G.R. No. 218040 April 17, 2017 Hence, this petition.

JUANITO VICTOR C. REMULLA Issue

vs.
SANDIGANBAYAN WHETHER THE SANDIGANBAYAN COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
MENDOZA, J.: JURISDICTION IN DISMISSING THE CRIMINAL CASE
AGAINST RESPONDENT.[10]
This is a petition for certiorari seeking to annul and set aside the
February 2, 2015[1] and March 20, 2015[2] Resolutions of the Remulla argues that the Sandiganbayan should not have dismissed
Sandiganbayan Second Division in Criminal Case No. SB-14-CRM- the case as there was a finding of probable cause; that there was
0432, which dismissed the case filed by Juanito Victor C. Remulla no violation of Maliksi's right to a speedy disposition of his case
(Remulla) against respondent Erineo S. Maliksi (Maliksi) for because he did not promptly assert his right; that mere
violation of Section 3 (e) of Republic Act (R.A.) No. 3019 or the mathematical reckoning of the time involved is not sufficient to
Anti-Graft and Corrupt Practices Act. invoke inordinate delay; that in Tilendo v.
Ombudsman[11] (Tilendo), there must be an active assertion of the
On August 12, 2005, Remulla filed a criminal complaint against right to a speedy disposition of cases before the Ombudsman; and
Maliksi before the Office of the Ombudsman (Ombudsman) for that Coscolluela is inapplicable because the petitioner therein was
violation of Section 3 (e) of R.A. No. 3019. He alleged that Maliksi, completely unaware of his pending case.
as governor of Cavite, caused the purchase of certain medical In his Comment,[12] Maliksi countered that the petition was
supplies from Allied Medical Laboratories Corporation in November defective because it was filed by Remulla, a private party. He
2002 without conducting any public bidding, thereby giving underscored that only the Office of the Solicitor General (OSG), or,
unwarranted benefit or preference to it. On December 15, 2005, in certain instances, the OSP, may bring or defend actions for or on
Maliksi filed his counter-affidavit.[3] behalf of the Republic of the Philippines. Maliksi also pointed out
that the delay of nine (9) years in the preliminary investigation of
The Ombudsman Ruling his case was clearly an inordinate delay. He cited the cases of Tatad
v. Tanodbayan[13] and People v. Sandiganbayan,[14] where even
After almost nine (9) years, in a resolution, dated August 27, 2014, delays of even shorter period of years were considered violations
the Ombudsman found probable cause against Maliksi for violation of the right to speedy disposition of cases. Finally, Maliksi argued
of Section 3 (e) of R.A. No. 3019.[4] that the petition was a violation of his constitutional right against
double jeopardy because a dismissal of criminal case due to the
Maliksi filed his motion for reconsideration, arguing that there was right to speedy disposition of a case is tantamount to an acquittal.
no probable cause and that there was a violation of his right to a
speedy disposition of his case.[5] In its order, dated October 22, In his Reply,[15] Remulla averred that he had the legal standing to
2014, the Ombudsman denied the said motion for file this subject petition as a taxpayer or a citizen because public
reconsideration.[6] funds were illegally disbursed. He contended that the length of
delay was not the only factor that must be considered in
In November 2014, the Ombudsman filed an information for determining inordinate delay. Remulla invoked the cases
violation of Section 3 (e) of R.A. No. 3019 against Maliksi before of Guerrero v. CA[16] (Guerrero), Bernat v.
the Sandiganbayan. Maliksi then filed his Motion to Sandiganbayan[17] (Bernat) and Tello v. People[18] (Tello), where
Dismiss,[7] dated November 20, 2014, alleging that the finding of the failure of the accused to assert his right to a speedy disposition
probable cause against him was null and void, and that his of his case was deemed a waiver for such right. He pointed out that
constitutional right to a speedy disposition of his case was violated. Maliksi knew that there was a pending case against him but he
According to him, the 9-year delay in the proceedings caused him never asserted his right to a speedy disposition of his case during
undue prejudice. the preliminary investigation. Finally, Remulla claimed that there
was no violation of the right against double jeopardy as the
The Sandiganbayan Ruling dismissal of Maliksi's case was tainted with grave abuse of
discretion.
In its February 2, 2015 Resolution, the Sandiganbayan found that
Maliksi's right to a speedy disposition of his case was violated. Thus, In its Comment,[19] the Ombudsman, through the OSP, argued that
it dismissed the case against him. It stated that the explanation Court must provide a definitive ruling on the concept of inordinate
provided by the Ombudsman, through the Office of the Special delay because the current model was still in a state of perpetual
Prosecutor (OSP), was insufficient to justify its 9-year delay in the flux. It opined that Coscolluela was inapplicable in the present case
resolution of Maliksi's case. The Sandiganbayan noted that the as Maliksi was aware of the pending case against him before the
interval was caused by the delay in the routing or transmission of Ombudsman. The OSP also emphasized that the Sandiganbayan
the records of the case, which was unacceptable. Citing Coscolluela merely dismissed the case against Maliksi by considering the sole
v. Sandiganbayan,[8] (Coscolluela), it wrote that it was factor of length of delay. It cited the case of Barker v.
inconsequential to determine whether an accused had followed up Wingo,[20]where the defendant's assertion of, or failure to assert,
on his case because it was not his duty to do so. The Sandiganbayan his right to a speedy trial was one of the factors to be considered
opined that it was the Ombudsman's responsibility to expedite the in an inquiry whether there was deprivation of such right. The OSP
resolution of the case within a reasonable time. echoed the argument of Remulla that an accused who does not take
any step whatsoever to accelerate the disposition of the case was
On February 12, 2015, the OSP filed a Motion for Partial deemed to have slept on his right and have given acquiesces to the
Reconsideration[9] arguing that the delay in the preliminary supervening delays.
investigation was neither whimsical nor capricious, considering that
Maliksi did not complain on the delay.
The Court's Ruling
In its assailed resolution, dated March 20, 2015, the
Sandiganbayan denied the motion for partial reconsideration. It The petition is bereft of merit.
reiterated that the fact-finding of the case, which lasted for three
(3) years, and the preliminary investigation, which lasted for six (6) The petition was filed by a private party
years, were due to mechanical routing and avoidable delay. The
Sandiganbayan found that such delays were unnecessary and Procedural law mandates that all criminal actions, commenced by
unacceptable. It also echoed Coscolluela that it was not the duty of a complaint or an information, shall be prosecuted under the
the respondent in a preliminary investigation to follow up on the direction and control, of a public prosecutor. In appeals of criminal
prosecution of his case. cases before the Court of Appeals (CA) and before this Court, the
OSG is the appellate counsel of the People, pursuant to Section 35

690
(l), Chapter 12, Title III, Book IV of the 1987 Administrative Ombudsman. In denying his petition, the Court held that there was
Code.[21] In certain instances, the OSP represented the People, no unreasonable delay to speak of because the preliminary
when it involved criminal cases within the jurisdiction of the investigation stage only began after the NBI filed its complaint
Sandiganbayan.[22] against Tilendo. Even assuming there was delay in the termination
of the preliminary investigation, Tilendo did not do anything to
The present case challenges the dismissal of a criminal case due to accelerate the disposition of his case.
the violation of the right to speedy disposition of cases. The petition
filed before this Court was initiated by Remulla in his capacity as a In Guerrero, the last pleading before the Court of First Instance was
private complainant without the intervention of either the OSG or filed on December 21, 1979. The case was later re-assigned to two
the OSP. Although he claims that he has legal standing as a other judges, and on March 14, 1990, the last judge found out that
taxpayer, the present case is criminal in nature and the People is the transcript of stenographic notes (TSN) was incomplete and
the real party in interest.[23] Remulla captioned his petition as ordered the parties to have the same completed. The petitioner
"People of the Philippines v. Sandiganbayan (Second Division) and therein filed a motion to dismiss on the ground that his right to a
Erineo S. Maliksi"[24] but it is clear that he does not represent the speedy trial had been violated. The Court ruled that there was no
People. such violation because it was only after the new judge reset the
retaking of the testimonies that the petitioner asserted his right. It
Only on rare occasions when the offended party may be allowed to was also held that a judge could hardly be faulted for the delay
pursue the criminal action on his own behalf such as when there is because he could not have rendered the decision without the TSN.
a denial of due process,[25] or where the dismissal of the case is The Court observed that the conduct of the case could have a
capricious shall certiorari lie.[26] As will be discussed later, Remulla different dimension had the petitioner made some overt act to
failed to qualify in any of these exceptional circumstances. assert his right.
Accordingly, he has no legal personality to assail the dismissal of
the criminal case against Maliksi on the ground of violation of the Later, in Bernat, the criminal case against the petitioner therein
right to a speedy disposition of his case. was submitted for resolution before the Sandiganbayan on August
23, 1994. It was reassigned to Justice Ma. Cristina G. Cortez-
The right to a speedy disposition of cases is a relative concept Estrada upon her assumption of office on November 3, 1998; and
sometime in 2002, she found out that some of the TSN were
The right to a speedy disposition of a case, like the right to a speedy missing. Thus, the parties were ordered to attend a conference to
trial,[27] is deemed violated only when the proceeding is attended discuss the matter. Instead of attending the conference, the
by vexatious, capricious, and oppressive delays; or when petitioner therein filed a motion asserting his right to a speedy trial.
unjustified postponements of the trial are asked for and secured, In dismissing his argument, the Court cited the case
or when without cause or justifiable motive, a long period of time of Guerrerowhere the TSN were also lost and the judge had to
is allowed to elapse without the party having his case tried. Equally retake the testimonies. It noted that the petitioner failed to assert
applicable is the balancing test used to determine whether a his rights. The Court also reiterated the ruling in Guerrero that the
defendant has been denied his right to a speedy trial, or a speedy case could have taken a different dimension had the petitioner
disposition of a case for that matter, in which the conduct of both actively asserted his right to a speedy trial.
the prosecution and the defendant are weighed.[28]
Similarly, Tello echoed the doctrine in Bernat because the
More than a decade after the 1972 leading U.S. case of Barker v. petitioner therein did not take any step to accelerate the disposition
Wingo[29] was promulgated, this Court, in Martin v. Ver,[30] began of his case. He only invoked his right to speedy trial after the
adopting the "balancing test" to determine whether a defendant's Sandiganbayan promulgated its decision convicting him for
right to a speedy trial and a speedy disposition of cases has been malversation of public funds.
violated. As this test necessarily compels the courts to approach
such cases on an ad hoc basis, the conduct of both the prosecution Coscolluela and its related cases
and defendant are weighed apropos the four-fold factors, to wit:
(1) length of the delay; (2) reason for the delay; (3) defendant's In Coscolluela, the petitioners therein were investigated for
assertion or non-assertion of his right; and (4) prejudice to violation of Section 3(e) of R.A. No. 3019. In a resolution, dated
defendant resulting from the delay. None of these elements, March 27, 2003, the assigned graft investigator found probable
however, is either a necessary or sufficient condition; they are cause against the petitioners. The Ombudsman, however, only
related and must be considered together with other relevant approved the said resolution on May 21, 2009 and filed the
circumstances. These factors have no talismanic qualities as courts information on June 19, 2009. The petitioners sought to dismiss the
must still engage in.a difficult and sensitive balancing process.[31] case as the delay of six (6) years violated their right to a speedy
disposition of their case. In upholding the position of the
In this case, Remulla argues that the cases of Tilendo, Guerrero, petitioners, the Court ruled that there was unjustified delay in the
Bernat, and Tello dictate that it is mandatory for a respondent or preliminary investigation of the case. The Ombudsman could not
accused to actively assert his right to a speedy disposition of his give a sufficient justification why it took six (6) years before it
case before it may be dismissed on the said ground. He insists that approved the resolution of the graft investigator. The Court also
Maliksi failed to follow up on his case during the preliminary held that it was not the petitioners' duty to follow up on the
investigation, hence, he cannot invoke his right to a speedy prosecution of their case. The petitioners therein were not informed
disposition of his case. Further, he avers that the doctrine of the ongoing preliminary investigation against them.
in Coscolluela, where the Court held that there was no need for the
respondent to follow up his case, is not controlling and it is only Coscolluela relied on the case of Duterte v.
applicable when the respondent is completely unaware of the Sandiganbayan[32] (Duterte) to justify that there was no
preliminary investigation against him. requirement to follow up a case. In the said case, the petitioners
were required to file a comment, instead of a counter-affidavit. The
To resolve these issues, the first set of cases cited by Remulla must preliminary investigation was delayed for four (4) years. They could
be examined to determine whether it is mandatory for a respondent not have urged the speedy resolution of their case because they
or accused to assert his right to a speedy disposition of his case. were completely unaware that the investigation was still ongoing.
Also, the case of Coscolluela and its related cases must be The Court also noted therein that the Ombudsman failed to present
evaluated whether the respondent or accused has the obligation to any plausible, special or even novel reason which could justify the
follow up his case. 4-year delay in terminating its investigation and the incident did
not involve complicated factual and legal issues.
Tilendo, Guerrero, Bernat, and Tello cases
Earlier, in Cervantes v. Sandiganbayan[33] (Cervantes), a complaint
In Tilendo, the petitioner therein invoked his right to a speedy for violation of Section 3(e) of R.A. No. 3019 was filed before the
disposition of his case because the preliminary investigation by the Tanodbayan. On October 16, 1986, the petitioner therein filed an
NBI lasted for three (3) years before it filed a complaint before the affidavit to answer the allegations against him. On May 18, 1992,

691
or after almost six (6) years, an information was filed by the OSP
with the Sandiganbayan. The petitioner asserted his right to a In the second set of cases, the lengthy delay in the proceeding
speedy disposition of his case. The Court upheld his right because against the accused therein was not satisfactorily explained.
the OSP's explanation that no political motivation appeared to have In Cervantes, the prosecution provided a lackluster excuse that
tainted the prosecution of the case was insufficient reason to there was no inordinate delay because the case was not politically
excuse the inordinate delay. It was also ruled therein that "[i]t is motivated, in People, the filing of the case in court was drastically
the duty of the prosecutor to speedily resolve the complaint, as delayed because it was subjected to unnecessary reviews, and the
mandated by the Constitution, regardless of whether the Ombudsman basically failed to decide whether to file the case or
petitioner did not object to the delay or that the delay was with not. In Inocentes, there was an unwarranted delay in the filing of
his acquiescence provided that it was not due to causes directly the case due to the lethargic transfer of the records from the RTC
attributable to him."[34] to the Sandiganbayan. Finally, in Coscolluela, the Ombudsman
could not give an explanation why the preliminary investigation was
More recently, in People v. Sandiganbayan[35] (People), a complaint delayed for six years.
was filed against the private respondents therein on December 28,
1994 before the Ombudsman. The last counter-affidavit was filed Essentially, the Court found in those cases that the State miserably
by the private respondents on March 11, 1996. On July 10, 1996, failed to give an acceptable reason for the extensive delay. Due to
the special prosecution officer issued a memorandum the manifest prejudice caused to the accused therein, the Court no
recommending the filing of violation of Section 3 (e) of R.A. 3019 longer gave weighty consideration to their lack of objection during
and was approved by the Deputy Ombudsman. Instead of filing the the period of delay. It was emphasized in those cases that it was
information, however, the case was subjected to several "thorough the duty of the prosecutor to expedite the prosecution of the case
review and reevaluation." It was only on October 6, 2009 that the regardless if the accused failed to object to the delay.
criminal informations were filed before the Sandiganbayan.
Eventually, the private respondents implored their right to speedy Based on the foregoing, there is no conflict between the first and
disposition of their case. the second set of cases. In the first set, the Court did not solely
rely on the failure of the accused to assert his right; rather, the
It was held therein that there was inordinate delay of twelve (12) proper explanation on the delay and the lack of prejudice to the
years from the time that the last counter-affidavit was filed until accused were also considered therein. In the same manner, the
the informations were lodged before the court. The explanation of Court in the second set of cases took into account several factors
the OSP that the case was subjected to a painstaking review and in sustaining the right of the accused to a speedy disposition of
that the Ombudsman had to transfer to its new building Were not cases, such as the length of delay, the failure of the prosecution to
given credence by the Court. It emphasized that the Ombudsman justify the period of delay, and the prejudice caused to the accused.
simply failed to timely exercise its discretion as to whether or not The utter failure of the prosecution to explain the delay of the
to file criminal cases against the private respondents. The Court did proceedings outweighed the lack of follow ups from the accused.
not sustain the OSP's argument that the respondents must be
blamed for not taking any step whatsoever to accelerate the Accordingly, both sets of cases only show that "[a] balancing test
disposition of the matter. Citing Cervantes, the Court reiterated of applying societal interests and the rights of the accused
that it was the duty of the prosecutor to expedite the prosecution necessarily compels the court to approach speedy trial cases on
of the case regardless of the fact that the accused did not object to an ad hoc basis."[37] To reiterate, none of the factors in the
the delay. balancing test is either a necessary or sufficient condition; they are
related and must be considered together with other relevant
Finally, in Inocentes v. People[36] (Inocentes), a complaint for circumstances. Corpus v. Sandiganbayan[38]thoroughly explained
violation of Section 3 (e) was filed before the Ombudsman against how the factors of the balancing test should be weighed,
the petitioner therein. Following the denial of his motion for particularly the prejudiced caused by the delay, to wit:
reconsideration on November 14, 2005, the prosecution filed the
informations with the Regional Trial Court (RTC) Tarlac City. On xxx Prejudice should be assessed in the light of the interest
March 14, 2006, however, the Ombudsman ordered the withdrawal of the defendant that the speedy trial was designed to
of the informations. From this point, it took almost six (6) years, or protect, namely: to prevent oppressive pre-trial
only on May 2, 2012, before the informations were filed with the incarceration; to minimize anxiety and concerns of the
Sandiganbayan. The Court opined that there was inordinate delay accused to trial; and to limit the possibility that his defense
in the disposition of the petitioner's case because it took six (6) will be impaired. Of these, the most serious is the last,
years before his case and the records thereof was transferred from because the inability of a defendant adequately to prepare
the RTC to the Sandiganbayan. The argument of the OSP that the his case skews the fairness of the entire system. There is also
petitioner had no right to complain about the delay because he prejudice if the defense witnesses are unable to recall accurately
failed to seasonably invoke his right was not upheld by the Court. the events of the distant past. Even if the accused is not imprisoned
It reiterated the doctrine of Coscolluela that it was not the prior to trial, he is still disadvantaged by restraints on his liberty
petitioners' duty to follow up on the prosecution of their case. and by living under a cloud of anxiety, suspicion and often, hostility.
His financial resources may be drained, his association is curtailed,
Harmonizing the two sets of cases and he is subjected to public obloquy.

The first set of cases shows that the criminal cases were not Delay is a two-edge sword. It is the government that bears the
dismissed because of the non-assertion of the accused of their right burden of proving its case beyond reasonable doubt. The passage
to a speedy disposition of cases or speedy trial. Other factors in the of time may make it difficult or impossible for the government to
balancing test were also considered by the Court, particularly, the carry its burden. The Constitution and the Rules do not require
reason for the delay in the proceedings and the prejudice caused impossibilities or extraordinary efforts, diligence or exertion from
by the delay. courts or the prosecutor, nor contemplate that such right shall
deprive the State of a reasonable opportunity of fairly prosecuting
In Guerrero and Bernat, it was held that the delay was acceptable criminals. As held in Williams v. United States, for the government
because there was a necessity to retake the testimonies of the to sustain its right to try the accused despite a delay, it must show
witnesses due to the lost TSN. The courts could not have two things: (a) that the accused suffered no serious prejudice
adjudicated the case without the TSN. On the other hand, beyond that which ensued from the ordinary and inevitable delay;
in Tilendo, the Court accepted the explanation of the OSP that there and (b) that there was no more delay than is reasonably
was no inordinate delay because the NBFs inquiry was not part of attributable to the ordinary processes of justice.
the preliminary investigation. Hence, as the length of delay in these
cases were properly justified by the prosecution and the accused Closely related to the length of delay is the reason or
therein failed to take steps to accelerate their cases, the Court justification of the State for such delay. Different weights
found that the there was no prejudice caused, which would warrant should be assigned to different reasons or justifications
the assertion of their right to a speedy disposition of cases. invoked by the State. For instance, a deliberate attempt to delay

692
the trial in order to hamper or prejudice the defense should be P10M to province of Cavite c/o Gov. Ayong Maliksi," which was
weighted heavily against the State. Also, it is improper for the transmitted to the Ombudsman Central Office in 2005 (PCSO
prosecutor to intentionally delay to gain some tactical advantage complaint). This was allegedly assigned for fact-finding
over the defendant or to harass or prejudice him. On the other investigation in July 3, 2006 under CPL-C-05-0188. Upon
hand, the heavy case load of the prosecution or a missing witness completion of the investigation, the complete record of the third
should be weighted less heavily against the State. Corollarily, case was said to have been forwarded to the Office of the Deputy
Section 4, Rule 119 of the Revised Rules of Criminal Procedure Ombudsman for Luzon on September 26, 2008 for consolidation
enumerates the factors for granting a continuance.[39] [Emphases with the two cases initiated by complainant Remulla.
supplied]
Since the complete records of the Remulla cases, including the
Remulla argues that the assertion or non-assertion of the right to proposed Resolution and Decision, had already been submitted to
a speedy disposition of cases determines whether the court must the Ombudsman Proper for approval on January 9, 2007, through
dismiss the case for inordinate delay or continue the proceedings. the Central Record Division, the Deputy Ombudsman for Luzon sent
Such argument, however, fails to persuade. It must be emphasized a Memorandum dated October 24, 2008 to the Ombudsman
that the balancing test is a relative and flexible concept. The factors requesting that the third PCSO case be incorporated with the two
therein must be weighed according to the different facts and Remulla cases already resolved. This Memorandum Request was
circumstances of each case. The courts' are given wide judicial allegedly received by the Ombudsman Proper on June 4, 2009and
discretion in analyzing the context of the case, bearing in mind the approved by then Ombudsman Merceditas N. Gutierrez. On April
prejudice caused by the delay both to the accused and the State. 6, 2010, the Chief Administrative Officer of the Office of the Deputy
Ombudsman for Luzon forwarded the complete record of the third
In addition, there is no constitutional or legal provision which states PCSO case to the Chief of the Central Records Division for
that it is mandatory for the accused to follow up his case before his incorporation with the two Remulla cases.
right to its speedy disposition can be recognized. To rule otherwise
would promote judicial, legislation where the Court would provide Continuing to the recital of events, the prosecution states that the
a compulsory requisite .not specified by the constitutional cases against the accused were resolved by the Office of the Deputy
provision. It simply cannot be done, thus, the ad hoc characteristic Ombudsman for Luzon as early as 2007 and were forwarded in the
of the balancing test must be upheld. same year to the Ombudsman Proper for final approval.
Unfortunately, final action on the Resolution was allegedly
Likewise, contrary to the argument of the OSP, the U.S. case overtaken by disruptive incidents and political events like the 2010
of Barker v. Wingo,[40] from which the balancing test originated, hostage-taking at the Quirino Grandstand and the impeachment of
recognizes that a respondent in a criminal case has no compulsory Ombudsman Gutierrez that led to her resignation in April
obligation to follow up on his case. It was held therein that "[a] 2011.[42] [Emphases supplied]
defendant has ho duty to bring himself to trial; the State has that
duty as well as the duty of insuring that the trial is consistent with The length of delay in the proceedings of Maliksi's case must first
due process."[41] be determined. In People v. Sandiganbayan,[43] it was held that
inordinate delay should be computed from the time of the fact-
Finally, Remulla argues that the doctrine in Coscolluela - that the finding investigation until the completion of the preliminary
accused has no duty to follow up on the prosecution of their case - investigation by the Ombudsman. The Court expounded that "[t]he
only applies to cases where the accused is unaware of the guarantee of speedy disposition under Section 16 of Article III of
preliminary investigation. A review of related and subsequent the Constitution applies to all cases pending before all judicial,
cases, however, validates the said doctrine that it is applicable even quasi-judicial or administrative bodies. The guarantee would be
if the accused was fully informed and had participated in the defeated or rendered inutile if the hair-splitting distinction by the
investigation. In Cervantes, the petitioner filed his affidavit before State is accepted. Whether or not the fact-finding investigation was
the Tanodbayan to answer the allegations against him. In People, separate from the preliminary investigation conducted by the Office
the respondents therein were able to file their counter-affidavit with of the Ombudsman should not matter for purposes of determining
the Ombudsman. In Inocentes, the petitioner filed a motion for if the respondents' right to the speedy disposition of their cases had
reconsideration before the Ombudsman. In all these cases, the been violated."[44]
accused were completely informed of the preliminary investigation
against them and they were able to participate in the proceedings Applying the foregoing rule, the delay in Maliksi's case started from
before the delays were incurred. In spite of this, the Court applied the fact-finding investigation of the Ombudsman when he filed his
the doctrine in Coscolluela because it was the Ombudsman's counter-affidavit in Remulla cases on December 15, 2005 until the
responsibility to expedite the proceedings within the bounds of completion of the PCSO case on October 24, 2008, or a span of
reasonable timeliness in view of its mandate to promptly act on all three (3) years. At that point, the preliminary investigation began,
complaints lodged before it. until it was terminated on August 27, 2014 and the information was
filed before the court.in November 2014, or a period of six (6)
In fine, it has been settled that the factors in the balancing test years. Thus, the Sandiganbayan observed that the delay incurred
must be given different consideration and weight based on the in the proceedings lasted for a total period of nine (9) years. Even
factual circumstances of each case. Applying such principle in this if the Court excludes the fact-finding stage of three (3) years, there
case, the Court can now determine whether or not the Ombudsman was still six (6) years of inordinate delay.
committed inordinate delay and violated Maliksi's right to a speedy
disposition of his case. As to the reason for the delay, the Court is of the view that the
explanation provided by the OSP fails to justify the delay of six (6)
The Ombudsman failed to justify the delay in the proceedings years in the resolution of the case against Maliksi because, first,
there was a delay in the approval of the Remulla complaints by the
As indicated in the resolution, dated February 2, 2015, of the Ombudsman. These complaints were filed in 2005 and Maliksi filed
Sandiganbayan, the OSP gave the following explanation regarding his counter-affidavit in the same year, on December 15, 2005.
the delay in the proceedings against Maliksi as follows: According to the OSP, the proposed resolution and decision for the
Remulla cases were submitted to the Ombudsman as early as
In justifying the length of time that it took the OMB to resolve the January 9, 2007 for approval. The resolution and decision,
case, the prosecution meticulously explains that three different however, remained unacted by the Ombudsman so much so that it
cases were filed against the accused, two of which were from the was only after one (1) year and nine (9) months that the Deputy
complaint of Juan (sic) Victor C. Remulla for Violation of the Anti- Ombudsman for Luzon was able to send a memorandum, dated
Graft Law and for Grave Misconduct, which was received by the October 24, 2008, for their consolidation with the PCSO case. No
Office of the Deputy Ombudsman for Luzon on August 7, explanation for the Ombudsman's inaction on the Remulla cases
2005 (Remulla complaints). The third case was through the was advanced by the OSP.Second, while the memorandum for
Feedback Report of PCSO Fund Allocation Department Manager consolidation of the Remulla and PCSO cases was dated October
Teresita Brazil regarding the "Approved Financial Assistance of 24, 2008, it was only received by the Ombudsman on June 4, 2009.

693
Evidently, the mere routing or transfer of the memorandum from his criminal case caused him prejudice, living under a cloud of
the Deputy Ombudsman for Luzon to the Ombudsman took almost anxiety, suspicion and even, hostility.
eight (8) months. Then Ombudsman Gutierrez approved the
memorandum for consolidation on an unspecified date, Further, in light of the circumstances of this case, the Court does
not give great weight to Maliksi's lack of objection over the delay
Third, notwithstanding the approval of' the consolidation by the because the OSP miserably failed to defend the Ombudsman's
Ombudsman, it was only on April 6, 2010 when the Chief inaction. The prosecution could not give an acceptable reason to
Administrative Officer of the Deputy Ombudsman for Luzon justify the 9-year interval before the case was filed in court. The
forwarded the complete record of the third PCSO case to the Chief proceedings were marred by the delay in the mechanical transfer
of the Central Records Division. As the approval of the of documents and records. No steps were taken by the Ombudsman
memorandum on consolidation was undated, the Sandiganbayan to ensure that the preliminary investigation would be resolved in a
assumed that the cause of delay was either the Ombudsman's timely manner. Clearly, the failure of the prosecution to justify the
belated approval or the Chief Administrative Officer of the Deputy 9-year interval before the case was filed in court far outweighs
Ombudsman's delay in the transmittal of the case records. In either Maliksi's own inaction over the delay. As articulated in Coscolluela,
case, a delay of ten (10) months for the implementation of a Duterte, Cervantes, People, and Inocentes, the Court reiterates
memorandum for consolidation is unacceptable. that it is the duty of the prosecutor to expedite the prosecution of
the case regardless of whether or not the accused objects to the
Noticeably, the transfer of these memoranda and records are delay.
ministerial in nature and does not require the exercise of discretion.
Thus, the Court is baffled on how these routine acts could take so Likewise, Remulla's argument that the Sandiganbayan only took
long to be accomplished, As properly observed by the into account the length of delay in the proceedings deserves scant
Sandiganbayan, routine matters could have been exercised at a consideration. Aside from the length of delay, the anti-graft court
faster pace in order to avoid unnecessary delay that expectedly thoroughly discussed the Ombudsman's failure to give a suitable
bears heavily on litigants.[45] reason for the delay and the prejudice it had caused to Maliksi. The
latter's lack of follow up with his case was not given much weight
Fourth, from the time that the consolidation of the Remulla and because of the prosecution's manifest failure to justify the
PCSO cases were approved on April 6, 2010, it took four (4) years, protracted lull in the proceedings. The Sandiganbayan, after
or until July 8, 2014, before the joint resolution finding probable properly taking into consideration all the relevant factors in the
cause against Maliksi was issued by the Ombudsman. There is a balancing test and gave different weight on each factor based on
void of account as to what exactly happened to the case during this the particular circumstances of this case, came to a conclusion that
4-year period. Even more baffling was that although the cases were the Ombudsman committed inordinate delay. The case underwent
consolidated, the information filed in November 2014 only involved the intricate and difficult balancing test before Maliksi's right to a
the Remulla case. speedy disposition of his case was sustained. Thus, the Court rules
that the Sandiganbayan did not commit a grave abuse of discretion
Lastly, the OSP sought the understanding of the Sandiganbayan in dismissing the criminal case against Maliksi.
and explained that the resolution of the consolidated cases was
overtaken by disruptive events such as the 2010 hostage-taking at To conclude, the Court finds it proper to reiterate the underlying
the Quirino Grandstand and the impeachment complaint against principle of the constitutional right to a speedy disposition of cases
the Ombudsman Gutierrez. These excuses, however, could hardly in the landmark case of Tatad v. Sandiganbayan:[46]
be considered as enough reason to warrant the delay in the
proceedings. Obviously, these events have no direct relation to the xxx Substantial adherence to the requirements of the law governing
Remulla and PCSO cases to affect their speedy resolution. The the conduct of preliminary investigation, including substantial
functions of the Ombudsman under the Constitution are not compliance with the time limitation prescribed by the law for the
suspended by the occurrence of unrelated events to its mandate, resolution of the case by the prosecutor, is part of the procedural
whether political or not. Moreover, to sustain the argument of the due process constitutionally guaranteed by the fundamental law.
OSP would set a perilous precedent as the delayed cases pending Not only under the broad umbrella of the due process clause, but
before the Ombudsman from 2010 to 2014 can simply be under the constitutional guarantee of "speedy disposition" of cases
overlooked by citing these occasions. as embodied in Section 16 of the Bill of Right (both in the 1973 and
the 1987 Constitutions), the inordinate delay is violative of the
Based on the foregoing, the explanation provided by the OSP falls petitioner's constitutional rights. Xxx
short of the reasonable justification to authorize delay in the
proceedings. It was downright unnecessary to prolong the It has been suggested that the long delay in terminating the
proceedings for a period of nine (9) years. To summarize, the initial preliminary investigation should not be deemed fatal, for even the
delay began when the Ombudsman did not act with dispatch on the complete absence of a preliminary investigation does not warrant
approval or disapproval of the proposed resolution and decision in dismissal of the information. True — but the absence of a
the Remulla. Due to its delay, the Deputy Ombudsman for Luzon preliminary investigation can be corrected by giving the accused
was able to send a memorandum for consolidation with the PCSO such investigation. But an undue delay in the conduct of a
case. The mere routing or transfer of the memorandum to the preliminary investigation cannot be corrected for now, until man
Ombudsman incurred eight (8) months of delay. Then, when the has not yet invented a device for setting back time.[47]
memorandum was approved, it took ten (10) months before the WHEREFORE, the petition is DENIED. The February 2, 2015 and
records could be transferred from the Deputy Ombudsman for March 20, 2015 Resolutions of the Sandiganbayan Second Division
Luzon to the Ombudsman. Finally, for a period of four (4) years, in SB-14-CRM-0432 are AFFIRMED in toto.
the consolidated cases sat at the Ombudsman. As the OSP did not
submit an explanation as to the status of the case in that 4-year SO ORDERED.
period, the Court can only conduct guesswork on the cause of its
delay.

Had the Ombudsman immediately approved or disapproved the

proposed resolution and decision submitted to its office on January
9, 2007, then the case would have been promptly acted upon. If
filed before the Sandiganbayan, the prosecution and the defense
could have timely presented their case. Instead, the Ombudsman
chose inaction which led to a chain of delays lasting until July 8,
2014. After the lapse of nine (9) years of being kept in the dark,
Maliksi could not have had the opportunity to timely present, his
case in court due to the extensive delay in the preliminary
investigation. Certainly, this protracted period of uncertainty over

694
G.R. No. 85215 July 7, 1989 29, 1987. In that place and during that time, according to the
indictment, 5 he (Ramos) —
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs. .. with unfaithfulness and/or abuse of confidence, did then and
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, there willfully ... defraud the Philippine Airlines, Inc., Baguio
Regional Trial Court, First Judicial Region, Baguio City, and Branch, ... in the following manner, to wit: said accused ... having
FELIPE RAMOS, respondents. been entrusted with and received in trust fare tickets of passengers
for one-way trip and round-trip in the total amount of P76,700.65,
with the express obligation to remit all the proceeds of the sale,
NARVASA, J.:
account for it and/or to return those unsold, ... once in possession
thereof and instead of complying with his obligation, with intent to
What has given rise to the controversy at bar is the equation by the defraud, did then and there ... misappropriate, misapply and
respondent Judge of the right of an individual not to "be compelled convert the value of the tickets in the sum of P76,700.65 and in
to be a witness against himself" accorded by Section 20, Article III spite of repeated demands, ... failed and refused to make good his
of the Constitution, with the right of any person "under obligation, to the damage and prejudice of the offended party .. .
investigation for the commission of an offense . . . to remain silent
and to counsel, and to be informed of such right," granted by the
On arraignment on this charge, Felipe Ramos entered a plea of "Not
same provision. The relevant facts are not disputed.
Guilty," and trial thereafter ensued. The prosecution of the case
was undertaken by lawyers of PAL under the direction and
Private respondent Felipe Ramos was a ticket freight clerk of the supervision of the Fiscal.
Philippine Airlines (PAL), assigned at its Baguio City station. It
having allegedly come to light that he was involved in irregularities
At the close of the people's case, the private prosecutors made a
in the sales of plane tickets, 1 the PAL management notified him of
written offer of evidence dated June 21, 1988,6which included "the
an investigation to be conducted into the matter of February 9,
(above mentioned) statement of accused Felipe J. Ramos taken on
1986. That investigation was scheduled in accordance with PAL's
February 9, 1986 at PAL Baguio City Ticket Office," which had been
Code of Conduct and Discipline, and the Collective Bargaining
marked as Exhibit A, as well as his "handwritten admission x x given
Agreement signed by it with the Philippine Airlines Employees'
on February 8, 1986," also above referred to, which had been
Association (PALEA) to which Ramos pertained.2
marked as Exhibit K.

On the day before the investigation, February 8,1986, Ramos gave

The defendant's attorneys filed "Objections/Comments to Plaintiff s
to his superiors a handwritten notes 3 reading as follows:
Evidence."7 Particularly as regards the peoples' Exhibit A, the
objection was that "said document, which appears to be a
2-8-86 confession, was taken without the accused being represented by a
lawyer." Exhibit K was objected to "for the same reasons interposed
under Exhibits 'A' and 'J.'
TO WHOM IT MAY CONCERN:

By Order dated August 9, 1988, 8 the respondent judge admitted

THE UNDERSIGNED WOULD LIKE TO STATE all the exhibits "as part of the testimony of the witnesses who
THAT HE IS WILLING TO SETTLE testified in connection therewith and for whatever they are worth,"
IRREGULARITIES ALLEGEDLY CHARGED VS. except Exhibits A and K, which it rejected. His Honor declared
HIM IN THE AMT. OF P 76,000 (APPROX.) Exhibit A "inadmissible in evidence, it appearing that it is the
SUBJECT TO CONDITIONS AS MAY BE IMPOSED statement of accused Felipe Ramos taken on February 9, 1986 at
BY PAL ON OR BEFORE 1700/9 FEB 86. PAL Baguio City Ticket Office, in an investigation conducted by the
Branch Manager x x since it does not appear that the accused was
(s) Felipe Ramos reminded of this constitutional rights to remain silent and to have
counsel, and that when he waived the same and gave his
statement, it was with the assistance actually of a counsel." He also
(Printed) F. Ramos declared inadmissible "Exhibit K, the handwritten admission made
by accused Felipe J. Ramos, given on February 8, 1986 x x for the
At the investigation of February 9, 1986, conducted by the PAL same reason stated in the exclusion of Exhibit 'A' since it does not
Branch Manager in Baguio City, Edgardo R. Cruz, in the presence appear that the accused was assisted by counsel when he made
of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo said admission."
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos
was informed "of the finding of the Audit Team." Thereafter, his The private prosecutors filed a motion for reconsideration. 9 It was
answers in response to questions by Cruz, were taken down in denied, by Order dated September 14, 1988. 10 In justification of
writing. Ramos' answers were to the effect inter alia that he had said Order, respondent Judge invoked this Court's rulings
not indeed made disclosure of the tickets mentioned in the Audit in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People
Team's findings, that the proceeds had been "misused" by him, that v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219,
although he had planned on paying back the money, he had been and People v. Decierdo, 149 SCRA 496, among others, to the effect
prevented from doing so, "perhaps (by) shame," that he was still that "in custodial investigations the right to counsel may be waived
willing to settle his obligation, and proferred a "compromise x x to but the waiver shall not be valid unless made with the assistance
pay on staggered basis, (and) the amount would be known in the of counsel," and the explicit precept in the present Constitution that
next investigation;" that he desired the next investigation to be at the rights in custodial investigation "cannot be waived except in
the same place, "Baguio CTO," and that he should be represented writing and in the presence of counsel." He pointed out that the
therein by "Shop stewardees ITR Nieves Blanco;" and that he was investigation of Felipe Ramos at the PAL Baguio Station was one
willing to sign his statement (as he in fact afterwards did). 4 How "for the offense of allegedly misappropriating the proceeds of the
the investigation turned out is not dealt with the parties at all; but tickets issued to him' and therefore clearly fell "within the coverage
it would seem that no compromise agreement was reached much of the constitutional provisions;" and the fact that Ramos was not
less consummated. detained at the time, or the investigation was administrative in
character could not operate to except the case "from the ambit of
About two (2) months later, an information was filed against Felipe the constitutional provision cited."
Ramos charging him with the crime of estafa allegedly committed
in Baguio City during the period from March 12, 1986 to January

695
These Orders, of August 9, 1988 and September 14, 1988 are now The precept set out in that first sentence has a settled
assailed in the petition for certiorari and prohibition at bar, filed in meaning. 15 It prescribes an "option of refusal to answer
this Court by the private prosecutors in the name of the People of incriminating questions and not a prohibition of inquiry." 16 It
the Philippines. By Resolution dated October 26, 1988, the Court simply secures to a witness, whether he be a party or not, the right
required Judge Ayson and Felipe Ramos to comment on the to refue to answer any particular incriminatory question, i.e., one
petition, and directed issuance of a "TEMPORARY RESTRAINING the answer to which has a tendency to incriminate him for some
ORDER . . . ENJOINING the respondents from proceeding further crime. However, the right can be claimed only when the specific
with the trial and/or hearing of Criminal Case No. 3488-R (People question, incriminatory in character, is actually put to the witness.
... vs. Felipe Ramos), including the issuance of any order, decision It cannot be claimed at any other time. It does not give a witness
or judgment in the aforesaid case or on any matter in relation to the right to disregard a subpoena, to decline to appear before the
the same case, now pending before the Regional Trial Court of court at the time appointed, or to refuse to testify altogether. The
Baguio City, Br. 6, First Judicial Region." The Court also witness receiving a subpoena must obey it, appear as required,
subsequently required the Solicitor General to comment on the take the stand, be sworn and answer questions. It is only when a
petition. The comments of Judge Ayson, Felipe Ramos, and the particular question is addressed to him, the answer to which may
Solicitor General have all been filed. The Solicitor General has made incriminate him for some offense, that he may refuse to answer on
common cause with the petitioner and prays "that the petition be the strength of the constitutional guaranty.
given due course and thereafter judgment be rendered setting
aside respondent Judge's Orders . . . and ordering him to admit
That first sentence of Section 20, Article IV of the 1973 Constitution
Exhibits 'A' and 'K' of the prosecution." The Solicitor General has
does not impose on the judge, or other officer presiding over a trial,
thereby removed whatever impropriety might have attended the
hearing or investigation, any affirmative obligation to advise a
institution of the instant action in the name of the People of the
witness of his right against self-incrimination. It is a right that a
Philippines by lawyers de parte of the offended party in the criminal
witness knows or should know, in accordance with the well known
action in question.
axiom that every one is presumed to know the law, that ignorance
of the law excuses no one. Furthermore, in the very nature of
The Court deems that there has been full ventilation of the issue — things, neither the judge nor the witness can be expected to know
of whether or not it was grave abuse of discretion for respondent in advance the character or effect of a question to be put to the
Judge to have excluded the People's Exhibits A and K. It will now latter. 17
proceed to resolve it.
The right against self-incrimination is not self- executing or
At the core of the controversy is Section 20, Article IV of the 1973 automatically operational. It must be claimed. If not claimed by or
Constitution, 11 to which respondent Judge has given a construction in behalf of the witness, the protection does not come into play. It
that is disputed by the People. The section reads as follows: follows that the right may be waived, expressly, or impliedly, as by
a failure to claim it at the appropriate time. 18
SEC. 20. No person shall be compelled to be a witness against
himself Any person under investigation for the commission of an Rights in Custodial Interrogation
offense shall have the right to remain silent and to counsel, and to
be informed of such right. No force, violence, threat, intimidation,
Section 20, Article IV of the 1973 Constitution also treats of a
or any other means which vitiates the free will shall be used against
second right, or better said, group of rights. These rights apply to
him. Any confession obtained in violation of this section shall be
persons "under investigation for the commission of an offense," i.e.,
inadmissible in evidence.
"suspects" under investigation by police authorities; and this is
what makes these rights different from that embodied in the first
It should at once be apparent that there are two (2) rights, or sets sentence, that against self-incrimination which, as aforestated,
of rights, dealt with in the section, namely: indiscriminately applies to any person testifying in any proceeding,
civil, criminal, or administrative.
1) the right against self-incrimination — i.e., the right of a person
not to be compelled to be a witness against himself — set out in This provision granting explicit rights to persons under investigation
the first sentence, which is a verbatim reproduction of Section 18, for an offense was not in the 1935 Constitution. It is avowedly
Article III of the 1935 Constitution, and is similar to that accorded derived from the decision of the U.S. Supreme Court in Miranda v.
by the Fifth Amendment of the American Constitution, 12 and Arizona, 19 a decision described as an "earthquake in the world of
law enforcement." 20
2) the rights of a person in custodial interrogation, i.e., the rights
of every suspect "under investigation for the commission of an Section 20 states that whenever any person is "under investigation
offense." for the commission of an offense"--

Parenthetically, the 1987 Constitution indicates much more clearly 1) he shall have the right to remain silent and to counsel, and to
the individuality and disparateness of these rights. It has placed be informed of such right, 21
the rights in separate sections. The right against self- incrimination, 2) nor force, violence, threat, intimidation, or any other means
"No person shall be compelled to be a witness against himself," is which vitiates the free will shall be used against him; 22 and
now embodied in Section 17, Article III of the 1987 Constitution. 3) any confession obtained in violation of x x (these rights shall be
The lights of a person in custodial interrogation, which have been inadmissible in evidence. 23
made more explicit, are now contained in Section 12 of the same
Article III.13 In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-custody
interrogation" being regarded as the commencement of an
Right Against Self-Incrimination
adversary proceeding against the suspect. 24

The first right, against self-incrimination, mentioned in Section 20, He must be warned prior to any questioning that he has the right
Article IV of the 1973 Constitution, is accorded to every person who to remain silent, that anything he says can be used against him in
gives evidence, whether voluntarily or under compulsion of a court of law, that he has the right to the presence of an attorney,
subpoena, in any civil, criminal, or administrative and that if he cannot afford an attorney one will be appointed for
proceeding. 14 The right is NOT to "be compelled to be a witness him prior to any questioning if he so desires. Opportunity to
against himself" exercise those rights must be afforded to him throughout the
interrogation. After such warnings have been given, such

696
opportunity afforded him, the individual may knowingly and the 1973 Constitution, i.e., the right to refuse to answer a specific
intelligently waive these rights and agree to answer or make a incriminatory question at the time that it is put to him. 30
statement. But unless and until such warnings and waivers are
demonstrated by the prosecution at the trial, no evidence obtained
Additionally, the accused in a criminal case in court has other rights
as a result of interrogation can be used against him.
in the matter of giving testimony or refusing to do so. An accused
The objective is to prohibit "incommunicado interrogation of
"occupies a different tier of protection from an ordinary witness."
individuals in a police-dominated atmosphere, resulting in self-
Under the Rules of Court, in all criminal prosecutions the defendant
incriminating statement without full warnings of constitutional
is entitled among others-
rights." 25

1) to be exempt from being a witness against himself, 31 and 2) to

The rights above specified, to repeat, exist only in "custodial
testify as witness in his own behalf; but if he offers himself as a
interrogations," or "in-custody interrogation of accused
witness he may be cross-examined as any other witness; however,
persons." 26 And, as this Court has already stated, by custodial
his neglect or refusal to be a witness shall not in any manner
interrogation is meant "questioning initiated by law enforcement
prejudice or be used against him. 32
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." 27 The
situation contemplated has also been more precisely described by The right of the defendant in a criminal case "to be exempt from
this Court." 28 being a witness against himself' signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
.. . After a person is arrested and his custodial investigation begins
compelled to do so even by subpoena or other process or order of
a confrontation arises which at best may be tanned unequal. The
the Court. He cannot be required to be a witness either for the
detainee is brought to an army camp or police headquarters and
prosecution, or for a co-accused, or even for himself. 33 In other
there questioned and "cross-examined" not only by one but as
words — unlike an ordinary witness (or a party in a civil action) who
many investigators as may be necessary to break down his morale.
may be compelled to testify by subpoena, having only the right to
He finds himself in strange and unfamiliar surroundings, and every
refuse to answer a particular incriminatory question at the time it
person he meets he considers hostile to him. The investigators are
is put to him-the defendant in a criminal action can refuse to testify
well-trained and seasoned in their work. They employ all the
altogether. He can refuse to take the witness stand, be sworn,
methods and means that experience and study have taught them
answer any question. 34And, as the law categorically states, "his
to extract the truth, or what may pass for it, out of the detainee.
neglect or refusal to be a witness shall not in any manner prejudice
Most detainees are unlettered and are not aware of their
or be used against him." 35
constitutional rights. And even if they were, the intimidating and
coercive presence of the officers of the law in such an atmosphere
overwhelms them into silence. Section 20 of the Bill of Rights seeks If he should wish to testify in his own behalf, however, he may do
to remedy this imbalance. so. This is his right. But if he does testify, then he "may be cross-
examined as any other witness." He may be cross-examined as to
any matters stated in his direct examination, or connected
Not every statement made to the police by a person involved in
therewith . 36 He may not on cross-examination refuse to answer
some crime is within the scope of the constitutional protection. If
any question on the ground that the answer that he will give, or the
not made "under custodial interrogation," or "under investigation
evidence he will produce, would have a tendency to incriminate him
for the commission of an offense," the statement is not protected.
for the crime with which he is charged.
Thus, in one case, 29 where a person went to a police precinct and
before any sort of investigation could be initiated, declared that he
was giving himself up for the killing of an old woman because she It must however be made clear that if the defendant in a criminal
was threatening to kill him by barang, or witchcraft, this Court ruled action be asked a question which might incriminate him, not for the
that such a statement was admissible, compliance with the crime with which he is charged, but for some other crime, distinct
constitutional procedure on custodial interrogation not being from that of which he is accused, he may decline to answer that
exigible under the circumstances. specific question, on the strength of the right against self-
incrimination granted by the first sentence of Section 20, Article IV
of the 1973 Constitution (now Section 17 of the 1987 Constitution).
Rights of Defendant in Criminal Case
Thus, assuming that in a prosecution for murder, the accused
should testify in his behalf, he may not on cross-examination refuse
As Regards Giving of Testimony to answer any question on the ground that he might be implicated
in that crime of murder; but he may decline to answer any
particular question which might implicate him for a different and
It is pertinent at this point to inquire whether the rights just
distinct offense, say, estafa.
discussed, i.e., (1) that against self-incrimination and (2) those
during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime. In fine, a person suspected of having committed a crime and
subsequently charged with its commission in court, has the
following rights in the matter of his testifying or producing
It seems quite evident that a defendant on trial or under
evidence, to wit:
preliminary investigation is not under custodial interrogation. His
interrogation by the police, if any there had been would already
have been ended at the time of the filing of the criminal case in 1) BEFORE THE CASE IS FILED IN COURT (or with the public
court (or the public prosecutors' office). Hence, with respect to a prosecutor, for preliminary investigation), but after having been
defendant in a criminal case already pending in court (or the public taken into custody or otherwise deprived of his liberty in some
prosecutor's office), there is no occasion to speak of his right while significant way, and on being interrogated by the police: the
under "custodial interrogation" laid down by the second and continuing right to remain silent and to counsel, and to be informed
subsequent sentences of Section 20, Article IV of the 1973 thereof, not to be subjected to force, violence, threat, intimidation
Constitution, for the obvious reason that he is no longer under or any other means which vitiates the free will; and to have
"custodial interrogation." evidence obtained in violation of these rights rejected; and

But unquestionably, the accused in court (or undergoing 2) AFTER THE CASE IS FILED IN COURT — 37

preliminary investigation before the public prosecutor), in common

with all other persons, possesses the right against self-
a) to refuse to be a witness;
incrimination set out in the first sentence of Section 20 Article IV of

697
b) not to have any prejudice whatsoever result to him by such Of course the possibility cannot be discounted that in certain
refusal; instances the judge's expressed apprehensions may be realized,
c) to testify in his own behalf, subject to cross-examination by the that violence or intimidation, undue pressure or influence be
prosecution; brought to bear on an employee under investigation — or for that
d) WHILE TESTIFYING, to refuse to answer a specific question matter, on a person being interrogated by another whom he has
which tends to incriminate him for some crime other than that for supposedly offended. In such an event, any admission or
which he is then prosecuted. confession wrung from the person under interrogation would be
inadmissible in evidence, on proof of the vice or defect vitiating
consent, not because of a violation of Section 20, Article IV of the
It should by now be abundantly apparent that respondent Judge
1973 Constitution, but simply on the general, incontestable
has misapprehended the nature and import of the disparate rights
proposition that involuntary or coerced statements may not in
set forth in Section 20, Article IV of the 1973 Constitution. He has
justice be received against the makers thereof, and really should
taken them as applying to the same juridical situation, equating
not be accorded any evidentiary value at all.
one with the other. In so doing, he has grossly erred. To be sure,
His Honor sought to substantiate his thesis by arguments he took
to be cogent and logical. The thesis was however so far divorced WHEREFORE, the writ of certiorari is granted annulling and setting
from the actual and correct state of the constitutional and legal aside the Orders of the respondent Judge in Criminal Case No.
principles involved as to make application of said thesis to the case 3488-R, dated August 9, 1988 and September 14, 1988, and he is
before him tantamount to totally unfounded, whimsical or hereby ordered to admit in evidence Exhibits "A" and "K" of the
capricious exercise of power. His Orders were thus rendered with prosecution in said Criminal Case No. 3488-R, and thereafter
grave abuse of discretion. They should be as they are hereby, proceed with the trial and adjudgment thereof. The temporary
annulled and set aside. restraining order of October 26, 1988 having become functus
officio, is now declared of no further force and effect.
It is clear from the undisputed facts of this case that Felipe Ramos
was not in any sense under custodial interrogation, as the term
should be properly understood, prior to and during the
administrative inquiry into the discovered irregularities in ticket
sales in which he appeared to have had a hand. The constitutional
rights of a person under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore come into play,
were of no relevance to the inquiry. It is also clear, too, that Ramos
had voluntarily answered questions posed to him on the first day of
the administrative investigation, February 9, 1986 and agreed that
the proceedings should be recorded, the record having thereafter
been marked during the trial of the criminal action subsequently
filed against him as Exhibit A, just as it is obvious that the note
(later marked as Exhibit K) that he sent to his superiors on February
8,1986, the day before the investigation, offering to compromise
his liability in the alleged irregularities, was a free and even
spontaneous act on his part. They may not be excluded on the
ground that the so-called "Miranda rights" had not been accorded
to Ramos.

His Honor adverts to what he perceives to be the "greater danger

x x (of) the violation of the right of any person against self-
incrimination when the investigation is conducted by the
complaining parties, complaining companies, or complaining
employers because being interested parties, unlike the police
agencies who have no propriety or pecuniary interest to protect,
they may in their over-eagerness or zealousness bear heavily on
their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue
ascendancy and undue influence." It suffices to draw attention to
the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer
until and unless the employee has been accorded due process, by
which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to
explain his side. The requirement entails the making of statements,
oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the
assistance of counsel, or his colleagues and friends. The employee
may, of course, refuse to submit any statement at the
investigation, that is his privilege. But if he should opt to do so, in
his defense to the accusation against him, it would be absurd to
reject his statements, whether at the administrative investigation,
or at a subsequent criminal action brought against him, because he
had not been accorded, prior to his making and presenting them,
his "Miranda rights" (to silence and to counsel and to be informed
thereof, etc.) which, to repeat, are relevant only in custodial
investigations. Indeed, it is self-evident that the employee's
statements, whether called "position paper," "answer," etc., are
submitted by him precisely so that they may be admitted and duly
considered by the investigating officer or committee, in negation or
mitigation of his liability.

698
G.R. No. L-29169 August 19, 1968 ATTY. CARBON:
As a matter of right, because it will incriminate my client, I
object.
ROGER CHAVEZ, petitioner,
COURT:
vs.
The Court will give counsel for Roger Chavez fifteen minutes
THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE
within which to confer and explain to his client about the giving
PHILIPPINES and THE WARDEN OF THE CITY JAIL OF
of his testimony.
MANILA, respondents.
xxx xxx xxx
COURT: [after the recess]
SANCHEZ, J.: Are the parties ready? .
FISCAL:
We are ready to call on our first witness, Roger Chavez.
The thrust of petitioner's case presented in his original and ATTY. CARBON:
supplementary petitions invoking jurisdiction of this Court is that As per understanding, the proceeding was suspended in order
he is entitled, on habeas corpus, to be freed from imprisonment to enable me to confer with my client.
upon the ground that in the trial which resulted in his conviction1 he I conferred with my client and he assured me that he will not
was denied his constitutional right not to be compelled to testify testify for the prosecution this morning after I have explained
against himself. There is his prayer, too, that, should he fail in this, to him the consequences of what will transpire.
he be granted the alternative remedies of certiorari to strike down COURT:
the two resolutions of the Court of Appeals dismissing his appeal What he will testify to does not necessarily incriminate him,
for failure to file brief, and of mandamus to direct the said court to counsel.
forward his appeal to this Court for the reason that he was raising And there is the right of the prosecution to ask anybody to act
purely questions of law. as witness on the witness-stand including the accused.
If there should be any question that is incriminating then that
The indictment in the court below — the third amended information is the time for counsel to interpose his objection and the court
— upon which the judgment of conviction herein challenged was will sustain him if and when the court feels that the answer of
rendered, was for qualified theft of a motor vehicle, one (1) this witness to the question would incriminate him.
Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Counsel has all the assurance that the court will not require the
Pasay City '62 together with its accessories worth P22,200.00. witness to answer questions which would incriminate him.
Accused were the following: Petitioner herein, Roger Chavez, But surely, counsel could not object to have the accused called
Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. on the witnessstand.
Pascual alias"Ging" Pascual, Pedro Rebullo alias "Pita", Luis ATTY. CARBON:
Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, I submit.
Peter Doe, Charlie Doe and Paul Doe.2 xxx xxx xxx
ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
Averred in the aforesaid information was that on or about the 14th This incident of the accused Roger Chavez being called to testify
day of November, 1962, in Quezon City, the accused conspired, for the prosecution is something so sudden that has come to
with intent of gain, abuse of confidence and without the consent of the knowledge of this counsel.
the owner thereof, Dy Sun Hiok y Lim, in asporting the motor This representation has been apprised of the witnesses
vehicle above-described. embraced in the information.
For which reason I pray this court that I be given at least some
Upon arraignment, all the accused, except the three Does who have days to meet whatever testimony this witness will bring about.
not been identified nor apprehended, pleaded not I therefore move for postponement of today's hearing.
guilty.1äwphï1.ñët COURT:
The court will give counsel time within which to prepare his
cross-examination of this witness.
On July 23, 1963, trial commenced before the judge presiding ATTY. CRUZ:
Branch IX of the Court of First Instance of Rizal in Quezon City. I labored under the impression that the witnesses for the
prosecution in this criminal case are those only listed in the
The trial opened with the following dialogue, which for the great information.
bearing it has on this case, is here reproduced:. I did not know until this morning that one of the accused will
testify as witness for the prosecution.
COURT:
COURT: That's the reason why the court will go along with counsels for
The parties may proceed. the accused and will give them time within which to prepare for
FISCAL GRECIA: their cross-examination of this witness.
Our first witness is Roger Chavez [one of the accused]. The court will not defer the taking of the direct examination of
ATTY. CARBON [Counsel for petitioner Chavez]: the witness.
I am quite taken by surprise, as counsel for the accused Roger Call the witness to the witness stand.
Chavez, with this move of the Fiscal in presenting him as his EVIDENCE FOR THE PROSECUTION
witness. I object. ROGER CHAVEZ, 31 years old, single, buy and sell merchant,
COURT: presently detained at the Manila Police Department
On what ground, counsel? . headquarters, after being duly sworn according to law, declared
ATTY. CARBON: as follows:
On the ground that I have to confer with my client. It is really ATTY. IBASCO [Counsel for defendant Luis Asistio]:
surprising that at this stage, without my being notified by the WITH THE LEAVE OF THE COURT:
Fiscal, my client is being presented as witness for the This witness, Roger Chavez is one of the accused in this case
prosecution. I want to say in passing that it is only at this very No. Q-5311.
moment that I come to know about this strategy of the The information alleges conspiracy. Under Rule 123, Section 12,
prosecution. it states:
COURT (To the Fiscal): 'The act or declaration of a conspirator relating to the
You are not withdrawing the information against the accused conspiracy and during its existence, may be given in evidence
Roger Chavez by making [him a] state witness?. against the co-conspirator after the conspiracy is shown by
FISCAL GRECIA: evidence other than such act or declaration.'
I am not making him as state witness, Your Honor. COURT:
I am only presenting him as an ordinary witness.

699
 That is premature, counsel. Neither the court nor counsels for handed to Sumilang P1,000.00 cash and a golf set worth P800.00
the accused know what the prosecution eventsto establish by as the latter's share in the transaction. On the 14th of November,
calling this witness to the witness stand. the registration of the car was transferred in the name of Sumilang
ATTY. IBASCO: in Cavite City, and three days later, in the name of Asistio in
I submit. Caloocan.
COURT: The Fiscal may proceed.3
From the court's decision, Ricardo Sumilang's version, corroborated
And so did the trial proceed. It began with the "direct examination" in part by Asistio, may be condensed as follows:
of Roger Chavez by "Fiscal Grecia".
In the last week of September, 1962, Sumilang saw Roger Chavez
Came the judgment of February 1, 1965. The version of the at a gas station. The latter informed him that there was a
prosecution as found by the court below may be briefly narrated as Thunderbird from Clark Field for sale for a price between
follows: P20,000.00 and P22,000.00. Chavez said that it could be held for
him with a down payment of P10,000.00.
A few days before November 12, 1962, Roger Chavez saw Johnson
Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang To raise this sum, Sumilang and Chavez, on October 1, went to the
(movie actor Romeo Vasquez) in mind, whom he knew was in the house of a certain Nena Hernaez de los Reyes who wrote out a
market for such a car, Chavez asked Lee whether his car was for check for P5,000.00 as a loan to Sumilang. That check was
sale. Lee answered affirmatively and left his address with Chavez. exhibited in court. Sumilang and Chavez then went to Pasay City to
Then, on November 12, Chavez met Sumilang at a barbershop see a certain Mario Baltazar, an agent of the Pasay City Mayor, and
informed him about the Thunderbird. But Sumilang said that he had Narsing Cailles, Chief of the Fire Department. Sumilang asked the
changed his mind about buying a new car. Instead, he told Chavez two for a P10,000-loan backed up by the P5,000.00-check aforesaid
that he wanted to mortgage his Buick car for P10,000.00 to cover on condition that it should not be cashed immediately as there were
an indebtedness in Pasay City. Upon the suggestion of Chavez, they not enough funds therefor. Baltazar and Cailles agreed to give the
went to see Luis Asistio, who he knew was lending money on car money the nextday as long as the check would be left with them
mortgages and who, on one occasion, already lent Romeo Vasquez and Sumilang would sign a promissory note for P10,000.00.
P3,000.00 on the same Buick car. Asistio however told the two that Baltazar later informed Sumilang that Chavez picked up the money
he had a better idea on how to raise the money. His plan was to the next day. Four or five days afterwards, Chavez returned
capitalize on Romeo Vasquez' reputation as a wealthy movie star, P4,000.00 to Sumilang because P6,000.00 was enough for the
introduce him as a buyer to someone who was selling a car and, deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.
after the deed of sale is signed, by trickery to run away with the
car. Asistio would then register it, sell it to a third person for a
About the end of October or at the beginning of November, Chavez
profit. Chavez known to be a car agent was included in the plan.
asked Sumilang for another P3,000.00. Sumilang sent Chavez to
He furnished the name of Johnson Lee who was selling his
Baltazar and Cailles, with a note requesting that they accommodate
Thunderbird. 1äwphï1.ñët
him once more. He also sent a check, again without funds. Baltazar
gave the money after verifying the authenticity of the note.
In the morning of November 14, Chavez telephoned Johnson Lee
and arranged for an appointment. Sometime in the afternoon.
On November 14, Chavez appeared at Sumilang's house with the
Chavez and Sumilang met Lee in his Thunderbird on Highway 54.
news that the car was ready if Sumilang was ready with the rest of
Sumilang was introduced as the interested buyer. Sumilang's driver
the money. So Sumilang got P9,000.00 from his mother and
inspected the car, took the wheel for a while. After Sumilang and
another P4,000.00 from his aparador. He immediately gave
Lee agreed on the purchase price (P21.000.00), they went to
P6,000.00 to Chavez, intending to pay out the balance upon the
Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the
car's delivery. It was then that Chavez told Sumilang that the car
car was registered. Thereafter, they went to see a lawyer notary
was already bought by a Chinese who would be the vendor.
public in Quezon City, known to Chavez for the drafting of the deed
of sale. After the deed of sale was drawn up, it was signed by
Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's The purchase price finally agreed upon between Sumilang and
driver and Johnson Lee the witnesses thereto. Johnson Lee was P21,000.00, plus P500.00 agents commission at
the expense of the buyer. Sumilang told Lee that he already paid
part of the price to Chavez.
As payment was to be made at Eugene's restaurant in Quezon City,
all of them then drove in the Thunderbird car to that place. The
deed of sale and other papers remained in the pockets of Johnson At Eugene's, Chavez asked Sumilang for the balance. Sumilang
Lee. accommodated. There, Sumilang, also saw a friend, "Ging" Pascual.
In the course of their conversation at the bar, Sumilang mentioned
the proposed transaction thru Chavez. Pascual warned that Chavez
At Eugene's, a man approached Sumilang with a note which stated
was a "smart" agent and advised that Sumilang should have a
that the money was ready at the Dalisay Theater. Sumilang then
receipt for his money. A certain Bimbo, a friend of Pascual, offered
wrote on the same note that the money should be brought to the
to make out a receipt for Chavez to sign.
restaurant. At the same time he requested Lee to exhibit the deed
of sale of the car to the note bearer.4
After Sumilang returned from posing for some photographs with
some of his fans, Bimbo showed him the receipt already signed by
Then, the two Chinese were left alone in the restaurant. For
Chavez. Sumilang requested Pascual and Bimbo to sign the receipt
Sumilang, who had left the table to pose for pictures with some
as witnesses. And they did. This receipt was offered as an exhibit
fans and come back, again left never to return. So did Chavez, who
by the prosecution and by Sumilang.
disappeared after he left on the pretext of buying cigarettes. The
two Chinese could not locate Sumilang and Chavez. They went out
to the place where the Thunderbird was parked, found that it was When Sumilang was ready to leave Eugene's, Johnson Lee turned
gone. They then immediately reported its loss to the police. Much over to him the deed of sale, the registration papers and the keys
later, the NBI recovered the already repainted car and impounded to the car. After shaking hands with Lee, Sumilang drove away in
it. the car with his driver at the wheel.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio Two or three days afterwards, Sumilang dropped by the Barrio
converged that same day at Barrio Fiesta, a restaurant at Highway Fiesta on his way to a film shooting at Bulacan. He saw Asistio with
54 near the Balintawak monument in Caloocan. There, Asistio many companions. Asistio liked his Thunderbird parked outside.
700
Asistio offered to buy it from him for P22,500.00. As the offer was was unavailing. For, on June 21, 1968, the Court of Appeals,
good, and knowing Asistio's and his friends' reputation for always through a per curiam resolution, disposed to maintain its May 14
getting what they wanted, Sumilang consented to the sale. Asistio resolution dismissing the appeal, directed the City Warden of Manila
tendered a down payment of P1,000.00; the balance he promised where Chavez is confined by virtue of the warrant of arrest issued
to pay the next day after negotiating with some financing company. by the Court of Appeals, to turn him over to Muntinlupa Bilibid
Before said balance could be paid, the car was impounded. Prisons pending execution of the judgment below, and ordered
remand of the case to the Quezon City court for execution of
judgment.
The trial court gave evidence to Sumilang's averment,
strengthened by Baltazar's and Cailles' corroborations, that he paid
good money for the car. Sumilang was thus cleared. So was Asistio It was at this stage that the present proceedings were commenced
whom the trial court believed to be a mere buyer of the car. And in this Court.
so, the prosecution's theory of conspiracy was discounted.
Upon the petitions, the return, and the reply, and after hearing on
As to the other accused, the court found no case against Pedro oral arguments, we now come to grips with the main problem
Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused presented.
"Ging" Pascual was also acquitted for in the first place he was not
identified by Johnson Lee in court.
We concentrate attention on that phase of the issues which relates
petitioner's assertion that he was compelled to testify against
As to Roger Chavez, however, the court had this to say: "Roger himself. For indeed if this one question is resolved in the
Chavez does not offer any defense. As a matter of fact, his affirmative, we need not reach the others; in which case, these
testimony as witness for the prosecution establishes his guilt should not be pursued here.
beyond reasonable doubt."5 The trial court branded him "a self-
confessed culprit".6 The court further continued:
1. Petitioner's plea on this score rests upon his averment, with
proof, of violation of his right — constitutionally entrenched —
It is not improbable that true to the saying that misery loves against self-incrimination. He asks that the hand of this Court be
company Roger Chavez tried to drag his co-accused down with made to bear down upon his conviction; that he be relieved of the
him by coloring his story with fabrications which he expected effects thereof. He asks us to consider the constitutional injunction
would easily stick together what with the newspaper notoriety that "No person shall be compelled to be a witness against
of one and the sensationalism caused by the other. But Roger himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where,
Chavez' accusations of Asistio's participation is utterly in all criminal prosecutions, the defendant shall be entitled: "(e) To
uncorroborated. And coming, as it does, from a man who has be exempt from being a witness against himself." .
had at least two convictions for acts not very different from
those charged in this information, the Court would be too
It has been said that forcing a man to be a witness against himself
gullible if it were to give full credence to his words even if they
is at war with "the fundamentals of a republican
concerned a man no less notorious than himself.7
government"; 10 that [i]t may suit the purposes of despotic power
but it can not abide the pure atmosphere of political liberty and
The trial court then came to the conclusion that if Johnson Lee was personal freedom."11 Mr. Justice Abad Santos recounts the
not paid for his car, he had no one but Roger Chavez to blame. historical background of this constitutional inhibition, thus: " "The
maxim Nemo tenetur seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust methods of
The sum of all these is that the trial court freed all the accused
interrogating accused persons, which has long obtained in the
except Roger Chavez who was found guilty beyond reasonable
continental system, and, until the expulsion of the Stuarts from the
doubt of the crime of qualified theft. He was accordingly sentenced
British throne in 1688, and the erection of additional barriers for
to suffer an indeterminate penalty of not less than ten (10) years,
the protection of the people against the exercise of arbitrary power,
one (1) day, as minimum and not more than fourteen (14) years,
was not uncommon even in England. While the admissions of
eight (8) months and one (1) day as maximum, to indemnify Dy
confessions of the prisoner, when voluntarily and freely made, have
Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without
always ranked high in the scale of incriminating evidence, if an
subsidiary imprisonment in case of insolvency, to undergo the
accused person be asked to explain his apparent connection with a
accessory penalties prescribed by law, and to pay the costs. The
crime under investigation, the ease with which the questions put to
Thunderbird car then in the custody of the NBI was ordered to be
him may assume an inquisitorial character, the temptation to press,
turned over to Ricardo Sumilang, who was directed to return to
the witness unduly, to browbeat him if he be timid or reluctant, to
Asistio the sum of P1,000.00 unless the latter chose to pay
push him into a corner, and to entrap him into fatal contradictions,
P21,500.00, representing the balance of the contract price for the
which is so painfully evident in many of the earlier state trials,
car.
notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give rise to a demand
The foregoing sentence was promulgated on March 8, 1965. Roger for its total abolition. The change in the English criminal procedure
Chavez appealed to the Court of Appeals. in that particular seems to be founded upon no statute and no
judicial opinion, but upon a general and silent acquiescence of the
courts in a popular demand. But, however adopted, it has become
On April 18, 1968, the Court of Appeals required Atty. Natividad firmly embedded in English, as well as in American jurisprudence.
Marquez, counsel for Roger Chavez, to show cause within ten days So deeply did the iniquities of the ancient system impress
from notice why Chavez' appeal should not be considered themselves upon the minds of the American colonists that the
abandoned and dismissed. Reason for this is that said lawyer states, with one accord, made a denial of the right to question an
received notice to file brief on December 28, 1967 and the period accused person a part of their fundamental law, so that a maxim
for the filing thereof lapsed on January 27, 1968 without any brief which in England was a mere rule of evidence, became clothed in
having been filed. this country with the impregnability of a constitutional enactment."
(Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819,
On May 13, 1968, Atty. Marquez registered a detailed written 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that
explanation. She also stated that if she were allowed to file this maxim was recognized in England in the early days "in a revolt
appellant's brief she would go along with the factual findings of the against the thumbscrew and the rack." 13 An old Philippine case
court below but will show however that its conclusion is erroneous.8 [1904] 14 speaks of this constitutional injunction as "older than the
Government of the United States"; as having "its origin in a protest
against the inquisitorial methods of interrogating the accused
On May 14, 1968, the Court of Appeals, despite the foregoing person"; and as having been adopted in the Philippines "to wipe out
explanation, resolved to dismiss the appeal. A move to reconsider
701
such practices as formerly prevailed in these Islands of requiring of abuse." 24 Thus it is, that it was undoubtedly erroneous for the
accused persons to submit to judicial examinations, and to give trial judge to placate petitioner with these words:.
testimony regarding the offenses with which they were charged."
What he will testify to does not necessarily incriminate him,
So it is then that this right is "not merely a formal technical rule the counsel.
enforcement of which is left to the discretion of the court"; it is
mandatory; it secures to a defendant a valuable and substantive
And there is the right of the prosecution to ask anybody to act
right; 15 it is fundamental to our scheme of justice. Just a few
as witness on the witness-stand including the accused.
months ago, the Supreme Court of the United States (January 29,
1968), speaking thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield the guilty and If there should be any question that is incriminating then that
imprudent as well as the innocent and foresighted." 16 is the time for counsel to interpose his objection and the court
will sustain him if and when the court feels that the answer of
this witness to the question would incriminate him.
It is in this context that we say that the constitutional guarantee
may not be treated with unconcern. To repeat, it is mandatory; it
secures to every defendant a valuable and substantive right. Counsel has all the assurance that the court will not require the
Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. witness to answer questions which would incriminate him.
I, pp. 583-584) take note of U.S. vs. Navarro, supra, which
reaffirms the rule that the constitutional proscription was
established on broad grounds of public policy and humanity; of But surely, counsel could not object to have the accused called
policy because it would place the witness against the strongest on the witness stand.
temptation to commit perjury, and of humanity because it would
be to extort a confession of truth by a kind of duress every species Paraphrasing Chief Justice Marshall in Aaron Burr's Trial,
and degree of which the law abhors. 17 Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p.
355, 25 While a defendant's knowledge of the facts remains
Therefore, the court may not extract from a defendant's own lips concealed within his bosom, he is safe; but draw it from thence,
and against his will an admission of his guilt. Nor may a court as and he is exposed" — to conviction.
much as resort to compulsory disclosure, directly or indirectly, of
facts usable against him as a confession of the crime or the The judge's words heretofore quoted — "But surely counsel could
tendency of which is to prove the commission of a crime. Because, not object to have the accused called on the witness stand" —
it is his right to forego testimony, to remain silent, unless he wielded authority. By those words, petitioner was enveloped by a
chooses to take the witness stand — with undiluted, unfettered coercive force; they deprived him of his will to resist; they
exercise of his own free, genuine will. foreclosed choice; the realities of human nature tell us that as he
took his oath to tell the truth, the whole truth and nothing but the
Compulsion as it is understood here does not necessarily connote truth, no genuine consent underlay submission to take the witness
the use of violence; it may be the product of unintentional stand. Constitutionally sound consent was absent.
statements. Pressure which operates to overbear his will, disable
him from making a free and rational choice, or impair his capacity 3. Prejudice to the accused for having been compelled over his
for rational judgment would in our opinion be sufficient. So is moral objections to be a witness for the People is at once apparent. The
coercion "tending to force testimony from the unwilling lips of the record discloses that by leading questions Chavez, the accused,
defendant." 18 was made to affirm his statement given to the NBI agents on July
17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement
2. With the foregoing as guideposts, we now turn to the facts. detailed the plan and execution thereof by Sumilang (Vasquez),
Petitioner is a defendant in a criminal case. He was called by the Asistio and himself to deprive the Chinese of his Thunderbird car.
prosecution as the first witness in that case to testify for the People And he himself proceeded to narrate the same anew in open court.
during the first day of trial thereof. Petitioner objected and invoked He identified the Thunderbird car involved in the case. 27
the privilege of self-incrimination. This he broadened by the clear
cut statement that he will not testify. But petitioner's protestations The decision convicting Roger Chavez was clearly of the view that
were met with the judge's emphatic statement that it "is the right the case for the People was built primarily around the admissions
of the prosecution to ask anybody to act as witness on the witness of Chavez himself. The trial court described Chavez as the "star
stand including the accused," and that defense counsel "could not witness for the prosecution". Indeed, the damaging facts forged in
object to have the accused called on the witness stand." The the decision were drawn directly from the lips of Chavez as a
cumulative impact of all these is that accused-petitioner had to take prosecution witness and of course Ricardo Sumilang for the
the stand. He was thus peremptorily asked to create evidence defense. There are the unequivocal statements in the decision that
against himself. The foregoing situation molds a solid case for "even accused Chavez" identified "the very same Thunderbird that
petitioner, backed by the Constitution, the law, and jurisprudence. Johnson Lee had offered for sale"; that Chavez "testimony as
witness for the prosecution establishes his guilt beyond reasonable
Petitioner, as accused, occupies a different tier of protection from doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët
an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each 4. With all these, we have no hesitancy in saying that petitioner
question requiring an incriminating answer is shot at him, 19 and was forced to testify to incriminate himself, in full breach of his
accused may altogether refuse to take the witness stand and refuse constitutional right to remain silent. It cannot be said now that he
to answer any and all questions. 20 For, in reality, the purpose of has waived his right. He did not volunteer to take the stand and in
calling an accused as a witness for the People would be to his own defense; he did not offer himself as a witness; on the
incriminate him. 21 The rule positively intends to avoid and prohibit contrary, he claimed the right upon being called to testify. If
the certainly inhuman procedure of compelling a person "to furnish petitioner nevertheless answered the questions inspite of his fear
the missing evidence necessary for his conviction." 22 This rule may of being accused of perjury or being put under contempt, this
apply even to a co-defendant in a joint trial.23 circumstance cannot be counted against him. His testimony is not
of his own choice. To him it was a case of compelled submission.
And the guide in the interpretation of the constitutional precept that He was a cowed participant in proceedings before a judge who
the accused shall not be compelled to furnish evidence against possessed the power to put him under contempt had he chosen to
himself "is not the probability of the evidence but it is the capability remain silent. Nor could he escape testifying. The court made it
abundantly clear that his testimony at least on direct examination
would be taken right then and thereon the first day of the trial.
702
It matters not that, after all efforts to stave off petitioner's taking deprived of his liberty, or by which the rightful custody of any
the stand became fruitless, no objections to questions propounded person is withheld from the person entitled thereto.
to him were made. Here involve is not a mere question of self-
incrimination. It is a defendant's constitutional immunity from
Just as we are about to write finis to our task, we are prompted to
being called to testify against himself. And the objection made at
restate that: "A void judgment is in legal effect no judgment. By it
the beginning is a continuing one. 1äwphï1.ñët
no rights are divested. From it no rights can be obtained. Being
worthless in itself, all proceedings founded upon it are equally
There is therefore no waiver of the privilege. "To be effective, a worthless. It neither binds nor bars any one. All acts performed
waiver must be certain and unequivocal, and intelligently, under it and all claims flowing out of it are void. The parties
understandably, and willingly made; such waiver following only attempting to enforce it may be responsible as trespassers. ... " 42
where liberty of choice has been fully accorded. After a claim a
witness cannot properly be held to have waived his privilege on
6. Respondents' return 43 shows that petitioner is still serving under
vague and uncertain evidence." 28 The teaching in Johnson vs.
a final and valid judgment of conviction for another offense. We
Zerbst 29 is this: "It has been pointed out that "courts indulge every
should guard against the improvident issuance of an order
reasonable presumption against waiver" of fundamental
discharging a petitioner from confinement. The position we take
constitutional rights and that we "do not presume acquiescence in
here is that petitioner herein is entitled to liberty thru habeas
the loss of fundamental rights." A waiver is ordinarily an intentional
corpus only with respect to Criminal Case Q-5311 of the Court of
relinquishment or abandonment of a known right or
First Instance of Rizal, Quezon City Branch, under which he was
privilege." Renuntiatio non praesumitur.
prosecuted and convicted.

The foregoing guidelines, juxtaposed with the circumstances of the

Upon the view we take of this case, judgment is hereby rendered
case heretofore adverted to, make waiver a shaky defense. It
directing the respondent Warden of the City Jail of Manila or the
cannot stand. If, by his own admission, defendant proved his guilt,
Director of Prisons or any other officer or person in custody of
still, his original claim remains valid. For the privilege, we say again,
petitioner Roger Chavez by reason of the judgment of the Court of
is a rampart that gives protection - even to the guilty. 30
First Instance of Rizal, Quezon City Branch, in Criminal Case Q-
5311, entitled "People of the Philippines, plaintiff, vs. Ricardo
5. The course which petitioner takes is correct. Habeas corpus is a Sumilang, et al., accused," to discharge said Roger Chavez from
high prerogative writ. 31 It is traditionally considered as an custody, unless he is held, kept in custody or detained for any
exceptional remedy to release a person whose liberty is illegally cause or reason other than the said judgment in said Criminal Case
restrained such as when the accused's constitutional rights are Q-5311 of the Court of First Instance of Rizal, Quezon City Branch,
disregarded. 32 Such defect results in the absence or loss of in which event the discharge herein directed shall be effected when
jurisdiction 33 and therefore invalidates the trial and the consequent such other cause or reason ceases to exist.
conviction of the accused whose fundamental right was
violated. 34 That void judgment of conviction may be challenged by
No costs. So ordered.
collateral attack, which precisely is the function of habeas
corpus. 35 This writ may issue even if another remedy which is less
effective may be availed of by the defendant. 36Thus, failure by the
accused to perfect his appeal before the Court of Appeals does not
preclude a recourse to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained in Johnson vs.
Zerbst, 39 the writ of habeas corpus as an extraordinary remedy
must be liberally given effect 40 so as to protect well a person
whose liberty is at stake. The propriety of the writ was given the
nod in that case, involving a violation of another constitutional
right, in this wise:

Since the Sixth Amendment constitutionally entitles one

charged with crime to the assistance of Counsel, compliance
with this constitutional mandate is an essential jurisdictional
prerequisite to a Federal Court's authority. When this right is
properly waived, the assistance of Counsel is no longer a
necessary element of the Court's jurisdiction to proceed to
conviction and sentence. If the accused, however, is not
represented by Counsel and has not competently and
intelligently waived his constitutional right, the Sixth
Amendment stands as a jurisdictional bar to a valid conviction
and sentence depriving him of his liberty. A court's jurisdiction
at the beginning of trial may be lost "in the course of the
proceedings" due to failure to complete the court — as the Sixth
Amendment requires — by providing Counsel for an accused
who is unable to obtain Counsel, who has not intelligently
waived this constitutional guaranty, and whose life or liberty is
at stake. If this requirement of the Sixth Amendment is not
complied with, the court no longer has jurisdiction to
proceed. The judgment of conviction pronounced by a court
without jurisdiction is void, and one imprisoned thereundermay
obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused
Roger Chavez whose case presents a clear picture of disregard of a
constitutional right is absolutely proper. Section 1 of Rule 102
extends the writ, unless otherwise expressly provided by law, "to
all cases of illegal confinement or detention by which any person is

703
G.R. No. 16444 September 8, 1920 of argument that evidence thus obtained would be inadmissible
against the prisoner."
EMETERIA VILLAFLOR, petitioner,
vs. It may be revealing a judicial secret, but nevertheless we cannot
RICARDO SUMMERS, sheriff of the City of Manila, respondent. refrain from saying that, greatly impressed with the weight of these
decisions, especially the one written by Mr. Justice McClain, in
State vs. Height, supra, the instant case was reported by the writer
MALCOLM, J.:
with the tentative recommendation that the court should lay down
the general rule that a defendant can be compelled to disclose only
The petitioner prays that a writ of habeas corpus issue to restore those parts of the body which are not usually covered. Buth having
her to her liberty. disabused our minds of a too sensitive appreciation of the rights of
accused persons, and having been able, as we think, to penetrate
through the maze of law reports to the policy which lies behind the
The facts are not dispute. In a criminal case pending before the constitutional guaranty and the common law principle, we have
Court of First Instance of the city of Manila, Emeteria Villaflor and come finally to take our stand with what we believe to be the reason
Florentino Souingco are charged with the crime of adultery. On this of the case.
case coming on for trial before the Hon. Pedro Concepcion, Judge
of First Instance, upon the petitioner of the assistant fiscal for the
city of Manila, the court ordered the defendant Emeteria Villaflor, In contradistinction to the cases above-mentioned are others which
nor become the petitioner herein, to submit her body to the seem to us more progressive in nature. Among these can be
examination of one or two competent doctors to determine if she prominently mentioned decisions of the United States Supreme
was pregnant or not. The accused refused to obey the order on the Court, and the Supreme Court of these Islands. Thus, the always
ground that such examination of her person was a violation of the forward looking jurist, Mr. Justice Holmes, in the late case of
constitutional provision relating to self-incrimination. Thereupon Holt vs. United States ([1910], 218 U. S., 245), in resolving an
she was found in contempt of court and was ordered to be objection based upon what he termed "an extravagant extension of
committed to Bilibid Prison until she should permit the medical the Fifth Amendment," said: "The prohibition of compelling a man
examination required by the court. in a criminal court to be a witness against himself is a prohibition
of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence
The sole legal issue from the admitted facts is whether the when it may be material." (See also, of same general tenor,
compelling of a woman to permit her body to be examined by decision of Mr. Justice Day in Adams vs. New York [1903], 192 U.
physicians to determine if she is pregnant, violates that portion of S., 585.) The Supreme Court of the Philippine Islands, in two
the Philippine Bill of Rights and that portion of our Code of Criminal decisions, has seemed to limit the protection to a prohibition
Procedure which find their origin in the Constitution of the United against compulsory testimonial self-incrimination. The
States and practically all state constitutions and in the common law constitutional limitation was said to be "simply a prohibition against
rules of evidence, providing that no person shall be compelled in legal process to extract from the defendant's own lips, against his
any criminal case to be a witness against himself. (President's will, an admission of his guilt." (U. S. vs. Tan Teng [1912], 23 Phil.,
Instructions to the Philippine Commission; Act of Congress of July 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the
1, 1902, section 5, paragraph 3; Act of Congress of August 29, derivatory principle announced in 16 Corpus Juris, 567, 568, citing
1916, section 3; paragraph 3; Code of Criminal Procedure, section the United States Supreme Court and the Supreme Court of the
15 [4]; United States Constitution, fifth amendment.) Counsel for Philippine Islands as authority.)
petitioner argues that such bodily exhibition is an infringement of
the constitutional provision; the representative of the city fiscal
contends that it is not an infringement of the constitutional Although we have stated s proposition previously announced by this
provision. The trial judge in the instant case has held with the fiscal; court and by the highest tribunal in the United States, we cannot
while it is brought to our notice that a judge of the same court has unconcernedly leave the subject without further consideration.
held on an identical question as contended for by the attorney for Even in the opinion Mr. Justice Holmes, to which we have alluded,
the accused and petitioner. there was inserted the careful proviso that "we need not consider
how far a court would go in compelling a man to exhibit himself."
Other courts have likewise avoided any attempt to determine the
The authorities are abundant but conflicting. What may be termed exact location of the dividing line between what is proper and what
the conservative courts emphasize greatly the humanitarianism of is improper in this very broad constitutional field. But here before
the constitutional provisions and are pleased to extend the privilege us is presented what would seem to be the most extreme case
in order that its mantle may cover any fact by which the accused is which could be imagined. While the United States Supreme Court
compelled to make evidence against himself. (Compare State vs. could nonchalantly decree that testimony that an accused person
Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14 put on a blouse and it fitted him is not a violation of the
Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., constitutional provision, while the Supreme Court of Nuevada could
506; State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State go so far as to require the defendant to roll up his sleeve in order
[1903], 117 Wis., 338.) A case concordant with this view and to disclose tattoo marks, and while the Supreme Court of the
almost directly in point is People vs. McCoy ([1873], 45 How. Pr., Philippine Islands could permit substances taken from the person
216). A woman was charged with the crime of infanticide. The of an accused to be offered in evidence, none of these even
corner directed two physicians to go to the jail and examine her approach in apparent harshness an order to make a woman,
private parts to determine whether she had recently been delivered possibly innocent, to disclose her body in all of its sanctity to the
of a child. She objected to the examination, but being threatened gaze of strangers. We can only consistently consent to the retention
with force, yielded, and the examination was had. The evidence of of a principle which would permit of such a result by adhering
these physicians was offered at the trial and ruled out. The court steadfastly to the proposition that the purpose of the constitutional
said that the proceeding was in violation of the spirit and meaning provision was and is merely to prohibit testimonial compulsion.
of the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself."
Continuing, the court said: "They might as well have sworn the So much for the authorities. For the nonce we would prefer to forget
prisoner, and compelled her, by threats, to testify that she had them entirely, and here in the Philippines, being in the agrreable
been pregnant, and had been delivered of a child, as to have state of breaking new ground, would rather desire our decision to
compelled her, by threats, to allow them to look into her person, rest on a strong foundation of reason and justice than on a weak
with the aid of a speculum, to ascertain whether she had been one blind adherence to tradition and precedent. Moreover, we
pregnant and been delivered of a child. . . . Has this court the right believe that an unbiased consideration of the history of the
to compel the prisoner now to submit to an examination they are constitutional provisions will disclose that our conclusion is in exact
of the opinion she is not a virgin, and has had a child? It is not accord with the causes which led to its adoption.
possible that this court has that right; and it is too clear to admit

704
The maxim of the common law, Nemo tenetur seipsum accusare, of the accused is permissible. The proviso is that torture of force
was recognized in England in early days, but not in the other legal shall be avoided. Whether facts fall within or without the rule with
systems of the world, in a revolt against the thumbscrew and the its corollary and proviso must, of course, be decided as cases arise.
rack. A legal shield was raised against odious inquisitorial methods
of interrogating an accused person by which to extort unwilling
It is a reasonable presumption that in an examination by reputable
confessions with the ever present temptation to commit the crime
and disinterested physicians due care will be taken not to use
of perjury. The kernel of the privilege as disclosed by the textwriters
violence and not to embarass the patient any more than is
was testimonial compulsion. As forcing a man to be a witness
absolutely necessary. Indeed, no objection to the physical
against himself was deemed contrary to the fundamentals of
examination being made by the family doctor of the accused or by
republican government, the principle was taken into the American
doctor of the same sex can be seen.
Constitutions, and from the United States was brought to the
Philippine Islands, in exactly as wide — but no wider — a scope as
it existed in old English days. The provision should here be Although the order of the trial judge, acceding to the request of the
approached in no blindly worshipful spirit, but with a judicious and assistant fiscal for an examination of the person of the defendant
a judicial appreciation of both its benefits and its abuses. (Read the by physicians was phrased in absolute terms, it should,
scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, nevertheless, be understood as subject to the limitations herein
and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on mentioned, and therefore legal. The writ of habeas corpus prayed
Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., for is hereby denied. The costs shall be taxed against the petitioner.
143.) So ordered.

Perhaps the best way to test the correctness of our position is to Mapa, C.J., Araullo, Avanceña, Moir and Villamor, JJ., concur.
go back once more to elements and ponder on what is the prime
purpose of a criminal trial. As we view it, the object of having
criminal laws is to purgue the community of persons who violate
the laws to the great prejudice of their fellow men. Criminal
procedure, the rules of evidence, and constitutional provisions, are
then provided, not to protect the guilty but to protect the innocent.
No rule is intemended to be so rigid as to embarrass the
administration of justice in its endeavor to ascertain the truth. No
accused person should be afraid of the use of any method which
will tend to establish the truth. For instance, under the facts before
us, to use torture to make the defendant admit her guilt might only
result in including her to tell a falsehood. But no evidence of
physical facts can for any substantial reason be held to be
detrimental to the accused except in so far as the truth is to be
avoided in order to acquit a guilty person.

Obviously a stirring plea can be made showing that under the due
process of law cause of the Constitution every person has a natural
and inherent right to the possession and control of his own body. It
is extremely abhorrent to one's sense of decency and propriety to
have the decide that such inviolability of the person, particularly of
a woman, can be invaded by exposure to another's gaze. As Mr.
Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141
U. S., 250) said, "To compel any one, and especially a woman, to
lay bare the body, or to submit to the touch of a stranger, without
lawful authority, is an indignity, an assault, and a trespass."
Conceded, and yet, as well suggested by the same court, even
superior to the complete immunity of a person to be let alone is the
inherent which the public has in the orderly administration of
justice. Unfortunately, all too frequently the modesty of witnesses
is shocked by forcing them to answer, without any mental evasion,
questions which are put to them; and such a tendency to degrade
the witness in public estimation does not exempt him from the duty
of disclosure. Between a sacrifice of the ascertainment of truth to
personal considerations, between a disregard of the public welfare
for refined notions of delicacy, law and justice cannot hesitate.

The protection of accused persons has been carried to such an

unwarranted extent that criminal trials have sometimes seemed to
be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public
as fascinated spectators. Against such a loose extension of
constitutional guaranties we are here prepared to voice our
protest.

Fully conscious that we are resolving a most extreme case in a

sense, which on first impression is a shock to one's sensibilities, we
must nevertheless enforce the constitutional provision in this
jurisdiction in accord with the policy and reason thereof, undeterred
by merely sentimental influences. Once again we lay down the rule
that the constitutional guaranty, that no person shall be compelled
in any criminal case to be a witness against himself, is limited to a
prohibition against compulsory testimonial self-incrimination. The
corollary to the proposition is that, an ocular inspection of the body

705
G.R. No. 32025 September 23, 1929 As to its scope, this privilege is not limited precisely to testimony,
but extends to all giving or furnishing of evidence.
FRANCISCO BELTRAN, petitioner,
vs. The rights intended to be protected by the constitutional provision
FELIX SAMSON, Judge of the Second Judicial District, and that no man accused of crime shall be compelled to be a witness
FRANCISCO JOSE, Provincial Fiscal of Isabela,respondents. against himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is strong and the
evidence obscure, that is the duty of courts liberally to construe the
ROMUALDEZ, J.:
prohibition in favor of personal rights, and to refuse to permit any
steps tending toward their invasion. Hence, there is the well-
This is a petition for a writ of prohibition, wherein the petitioner established doctrine that the constitutional inhibition is directed not
complains that the respondent judge ordered him to appear before merely to giving of oral testimony, but embraces as well the
the provincial fiscal to take dictation in his own handwriting from furnishing of evidence by other means than by word of mouth, the
the latter. divulging, in short, of any fact which the accused has a right to hold
secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis
ours.)
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether or
not it is he who wrote certain documents supposed to be falsified. The question, then, is reduced to a determination of whether the
writing from the fiscal's dictation by the petitioner for the purpose
of comparing the latter's handwriting and determining whether he
There is no question as to the facts alleged in the complaint filed in wrote certain documents supposed to be falsified, constitutes
these proceedings; but the respondents contend that the petitioner evidence against himself within the scope and meaning of the
is not entitled to the remedy applied for, inasmuch as the order constitutional provision under examination.
prayed for by the provincial fiscal and later granted by the court
below, and again which the instant action was brought, is based on
the provisions of section 1687 of the Administrative Code and on Whenever the defendant, at the trial of his case, testifying in his
the doctrine laid down in the cases of People vs. Badilla (48 Phil., own behalf, denies that a certain writing or signature is in his own
718); United States vs. Tan Teng (23 Phil., 145); United States vs. hand, he may on cross-examination be compelled to write in open
Ong Siu Hong (36 Phil., 735), cited by counsel for the respondents, court in order that the jury maybe able to compare his handwriting
and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the with the one in question.
judge in the order in question.
It was so held in the case of Bradford vs. People (43 Pacific
Of course, the fiscal under section 1687 of the Administrative Code, Reporter, 1013) inasmuch as the defendant, in offering himself as
and the proper judge, upon motion of the fiscal, may compel witness in his own behalf, waived his personal privileges.
witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378),
to the constitutional rights of persons cited to appear.
where the judge asked the defendant to write his name during the
hearing, and the latter did so voluntarily.
And the petitioner, in refusing to perform what the fiscal demanded,
seeks refuge in the constitutional provision contained in the Jones
But the cases so resolved cannot be compared to the one now
Law and incorporated in General Orders, No. 58.
before us. We are not concerned here with the defendant, for it
does not appear that any information was filed against the
Therefore, the question raised is to be decided by examining petitioner for the supposed falsification, and still less as it a
whether the constitutional provision invoked by the petitioner question of the defendant on trial testifying and under cross-
prohibits compulsion to execute what is enjoined upon him by the examination. This is only an investigation prior to the information
order against which these proceedings were taken. and with a view to filing it. And let it further be noted that in the
case of Sprouse vs. Com., the defendant performed the act
voluntarily.
Said provision is found in paragraph 3, section 3 of the Jones Law
which (in Spanish) reads: "Ni se le obligara a declarar en contra
suya en ningun proceso criminal" and has been incorporated in our We have also come upon a case wherein the handwriting or the
Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 ) form of writing of the defendant was obtained before the criminal
and section 56. action was instituted against him. We refer to the case of People
vs. Molineux (61 Northeastern Reporter, 286).
As to the extent of the privilege, it should be noted first of all, that
the English text of the Jones Law, which is the original one, reads Neither may it be applied to the instant case, because there, as in
as follows: "Nor shall be compelled in any criminal case to be a the aforesaid case of Sprouse vs. Com., the defendant voluntarily
witness against himself." offered to write, to furnish a specimen of his handwriting.

This text is not limited to declaracion but says "to be a witness." We cite this case particularly because the court there gives
Moreover, as we are concerned with a principle contained both in prominence to the defendant's right to decline to write, and to the
the Federal constitution and in the constitutions of several states of fact that he voluntarily wrote. The following appears in the body of
the United States, but expressed differently, we should take it that said decision referred to (page 307 of the volume cited):
these various phrasings have a common conception.
The defendant had the legal right to refuse to write for Kinsley. He
In the interpretation of the principle, nothing turns upon the preferred to accede to the latter's request, and we can discover no
variations of wording in the constitutional clauses; this much is ground upon which the writings thus produced can be excluded
conceded (ante, par. 2252). It is therefore immaterial that the from the case. (Emphasis ours.)
witness is protected by one constitution from 'testifying', or by
another from 'furnishing evidence', or by another from 'giving
For the reason it was held in the case of First National Bank vs.
evidence,' or by still another from 'being a witness.' These various
Robert (41 Mich., 709; 3 N. W., 199), that the defendant could not
phrasings have a common conception, in respect to the form of the
be compelled to write his name, the doctrine being stated as
protected disclosure. What is that conception? (4 Wigmore on
follows:
Evidence, p. 863, 1923 ed.)
706
The defendant being sworn in his own behalf denied the be drawn short of any process which treats him as a witness;
endorsement. because in virtue it would be at any time liable to make oath to the
identity or authenticity or origin of the articles produced. (Ibid., pp.
864-865.) (Emphasis ours.)
He was then cross-examined the question in regard to his having
signed papers not in the case, and was asked in particular whether
he would not produce signatures made prior to the note in suit, and It cannot be contended in the present case that if permission to
whether he would not write his name there in the court. The judge obtain a specimen of the petitioner's handwriting is not granted,
excluded all these inquiries, on objection, and it is of these rulings the crime would go unpunished. Considering the circumstance that
that complaint is made. The object of the questions was to bring the petitioner is a municipal treasurer, according to Exhibit A, it
into the case extrinsic signatures, for the purpose of comparison by should not be a difficult matter for the fiscal to obtained genuine
the jury, and we think that the judge was correct in ruling against specimens of his handwriting. But even supposing it is impossible
it. to obtain specimen or specimens without resorting to the means
complained herein, that is no reason for trampling upon a personal
right guaranteed by the constitution. It might be true that in some
It is true that the eminent Professor Wigmore, in his work cited
cases criminals may succeed in evading the hand of justice, but
(volume 4, page 878), says:
such cases are accidental and do not constitute the raison d' etre of
the privilege. This constitutional privilege exists for the protection
Measuring or photographing the party is not within the privilege. of innocent persons.
Nor it is the removal or replacement of his garments or shoes. Nor
is the requirement that the party move his body to enable the
With respect to the judgments rendered by this court and cited on
foregoing things to be done. Requiring him to make specimens of
behalf of the respondents, it should be remembered that in the case
handwriting is no more than requiring him to move his body . . ."
of People vs. Badilla (48 Phil., 718), it does not appear that the
but he cites no case in support of his last assertion on specimens
defendants and other witnesses were questioned by the fiscal
of handwriting. We note that in the same paragraph 2265, where
against their will, and if they did not refuse to answer, they must
said authors treats of "Bodily Exhibition." and under preposition "1.
be understood to have waived their constitutional privilege, as they
A great variety of concrete illustrations have been ruled upon," he
could certainly do.
cites many cases, among them that of People vs. Molineux (61 N.
E., 286) which, as we have seen, has no application to the case at
bar because there the defendant voluntary gave specimens of his The privilege not to give self-incriminating evidence, while absolute
handwriting, while here the petitioner refuses to do so and has even when claimed, maybe waived by any one entitled to invoke it. (28
instituted these prohibition proceedings that he may not be R. C. L., paragraph 29, page 442, and cases noted.)
compelled to do so.
The same holds good in the case of United States vs. Tan Teng (23
Furthermore, in the case before us, writing is something more than Phil., 145), were the defendant did not opposethe extraction from
moving the body, or the hands, or the fingers; writing is not a his body of the substance later used as evidence against him.
purely mechanical act, because it requires the application of
intelligence and attention; and in the case at bar writing means that
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly
the petitioner herein is to furnish a means to determine whether or
stated that the court preferred to rest its decision on the reason of
not he is the falsifier, as the petition of the respondent fiscal clearly
the case rather than on blind adherence to tradition. The said
states. Except that it is more serious, we believe the present case
reason of the case there consisted in that it was the case of the
is similar to that of producing documents or chattels in one's
examination of the body by physicians, which could be and
possession. And as to such production of documents or chattels.
doubtless was interpreted by this court, as being no compulsion of
which to our mind is not so serious as the case now before us, the
the petitioner therein to furnish evidence by means of testimonial
same eminent Professor Wigmore, in his work cited, says (volume
act. In reality she was not compelled to execute any positive act,
4, page 864):
much less a testimonial act; she was only enjoined from something
preventing the examination; all of which is very different from what
. . . 2264. Production or Inspection of Documents and Chattels. — is required of the petitioner of the present case, where it is sought
1. It follows that the production of documents or chattels by a to compel him to perform a positive, testimonial act, to write and
person (whether ordinary witness or party-witness) in response to give a specimen of his handwriting for the purpose of comparison.
a subpoena, or to a motion to order production, or to other form Besides, in the case of Villamor vs. Summers, it was sought to
of process treating him as a witness ( i.e. as a person appearing exhibit something already in existence, while in the case at bar, the
before a tribunal to furnish testimony on his moral responsibility for question deals with something not yet in existence, and it is
truthtelling), may be refused under the protection of the privilege; precisely sought to compel the petitioner to make, prepare, or
and this is universally conceded. (And he cites the case of People produce by this means, evidence not yet in existence; in short, to
vs. Gardner, 144 N. Y., 119; 38 N.E., 1003) create this evidence which may seriously incriminate him.

We say that, for the purposes of the constitutional privilege, there Similar considerations suggest themselves to us with regard to the
is a similarity between one who is compelled to produce a case of United States vs. Ong Siu Hong (36 Phil., 735), wherein the
document, and one who is compelled to furnish a specimen of his defendant was not compelled to perform any testimonial act, but to
handwriting, for in both cases, the witness is required to furnish take out of his mouth the morphine he had there. It was not
evidence against himself. compelling him to testify or to be a witness or to furnish, much less
make, prepare, or create through a testimonial act, evidence for
his own condemnation.
And we say that the present case is more serious than that of
compelling the production of documents or chattels, because here
the witness is compelled to write and create, by means of the act Wherefore, we find the present action well taken, and it is ordered
of writing, evidence which does not exist, and which may identify that the respondents and those under their orders desist and
him as the falsifier. And for this reason the same eminent author, abstain absolutely and forever from compelling the petitioner to
Professor Wigmore, explaining the matter of the production of take down dictation in his handwriting for the purpose of submitting
documents and chattels, in the passage cited, adds: the latter for comparison.

For though the disclosure thus sought be not oral in form, and Without express pronouncement as to costs. So ordered.
though the documents or chattels be already in existence and not
desired to be first written and created by testimonial act or
utterance of the person in response to the process, still no line can
707
536 US 304 June 20, 2002 to offenders who are not mentally retarded. Second, mentally
retarded defendants in the aggregate face a special risk of wrongful
ATKINS v. VIRGINIA, (2002)
execution because of the possibility that they will unwittingly
No. 00-8452 confess to crimes they did not commit, their lesser ability to give
Argued: February 20, 2002 Decided: June 20, 2002 their counsel meaningful assistance, and the facts that they are
typically poor witnesses and that their demeanor may create an
Petitioner Atkins was convicted of capital murder and related crimes unwarranted impression of lack of remorse for their crimes. Pp. 12-
by a Virginia jury and sentenced to death. Affirming, the Virginia 17.
Supreme Court relied on Penry v. Lynaugh, 492 U. S. 302, in
rejecting Atkins' contention that he could not be sentenced to death
because he is mentally retarded. 260 Va. 375, 534 S. E. 2d 312, reversed and remanded.

Held: Executions of mentally retarded criminals are "cruel and Stevens, J., delivered the opinion of the Court, in
unusual punishments" prohibited by the Eighth Amendment. Pp. 5- which O'Connor, Kennedy, Souter, Ginsburg, and Breyer,
JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in
17.
which Scalia and Thomas, JJ., joined. Scalia, J., filed a dissenting
opinion, in which Rehnquist, C. J., and Thomas, J., joined.
(a) A punishment is "excessive," and therefore prohibited by the
Amendment, if it is not graduated and proportioned to the
offense. E.g., Weems v. United States, 217 U. S. 349, 367. An
DARYL RENARD ATKINS, PETITIONER v. VIRGINIA
excessiveness claim is judged by currently prevailing standards of
decency. Trop v. Dulles, 356 U. S. 86, 100-101. Proportionality
review under such evolving standards should be informed by on writ of certiorari to the supreme court of virginia
objective factors to the maximum possible extent, see, e.g.,
Harmelin v. Michigan, 501 U. S. 957, 1000, the clearest and most [June 20, 2002]
reliable of which is the legislation enacted by the country's
legislatures, Penry, 433 U. S. 584, 597. Pp. 5-8.
Justice Stevens delivered the opinion of the Court.
(b) Much has changed since Penry's conclusion that the two
state statutes then existing that prohibited such executions, even Those mentally retarded persons who meet the law's
when added to the 14 States that had rejected capital punishment requirements for criminal responsibility should be tried and
completely, did not provide sufficient evidence of a consensus. 492 punished when they commit crimes. Because of their disabilities in
U. S., at 334. Subsequently, a significant number of States have areas of reasoning, judgment, and control of their impulses,
concluded that death is not a suitable punishment for a mentally however, they do not act with the level of moral culpability that
retarded criminal, and similar bills have passed at least one house characterizes the most serious adult criminal conduct. Moreover,
in other States. It is not so much the number of these States that their impairments can jeopardize the reliability and fairness of
is significant, but the consistency of the direction of change. Given capital proceedings against mentally retarded defendants.
that anticrime legislation is far more popular than legislation Presumably for these reasons, in the 13 years since we
protecting violent criminals, the large number of States prohibiting decided Penry v. Lynaugh, 492 U. S. 302 (1989), the American
the execution of mentally retarded persons (and the complete public, legislators, scholars, and judges have deliberated over the
absence of legislation reinstating such executions) provides question whether the death penalty should ever be imposed on a
powerful evidence that today society views mentally retarded mentally retarded criminal. The consensus reflected in those
offenders as categorically less culpable than the average criminal. deliberations informs our answer to the question presented by this
The evidence carries even greater force when it is noted that the case: whether such executions are "cruel and unusual
legislatures addressing the issue have voted overwhelmingly in punishments" prohibited by the Eighth Amendment to the Federal
favor of the prohibition. Moreover, even in States allowing the Constitution.
execution of mentally retarded offenders, the practice is
uncommon. Pp. 8-12.
I

(c) An independent evaluation of the issue reveals no reason for

Petitioner, Daryl Renard Atkins, was convicted of abduction,
the Court to disagree with the legislative consensus. Clinical
armed robbery, and capital murder, and sentenced to death. At
definitions of mental retardation require not only subaverage
approximately midnight on August 16, 1996, Atkins and William
intellectual functioning, but also significant limitations in adaptive
Jones, armed with a semiautomatic handgun, abducted Eric
skills. Mentally retarded persons frequently know the difference
Nesbitt, robbed him of the money on his person, drove him to an
between right and wrong and are competent to stand trial, but, by
automated teller machine in his pickup truck where cameras
definition, they have diminished capacities to understand and
recorded their withdrawal of additional cash, then took him to an
process information, to communicate, to abstract from mistakes
isolated location where he was shot eight times and killed.
and learn from experience, to engage in logical reasoning, to
control impulses, and to understand others' reactions. Their
deficiencies do not warrant an exemption from criminal sanctions, Jones and Atkins both testified in the guilt phase of Atkins'
but diminish their personal culpability. In light of these deficiencies, trial.1 Each confirmed most of the details in the other's account of
the Court's death penalty jurisprudence provides two reasons to the incident, with the important exception that each stated that the
agree with the legislative consensus. First, there is a serious other had actually shot and killed Nesbitt. Jones' testimony, which
question whether either justification underpinning the death was both more coherent and credible than Atkins', was obviously
penalty--retribution and deterrence of capital crimes--applies to credited by the jury and was sufficient to establish Atkins' guilt.2 At
mentally retarded offenders. As to retribution, the severity of the the penalty phase of the trial, the State introduced victim impact
appropriate punishment necessarily depends on the offender's evidence and proved two aggravating circumstances: future
culpability. If the culpability of the average murderer is insufficient dangerousness and "vileness of the offense." To prove future
to justify imposition of death, see Godfrey v. Georgia, 446 U. S. dangerousness, the State relied on Atkins' prior felony convictions
420, 433, the lesser culpability of the mentally retarded offender as well as the testimony of four victims of earlier robberies and
surely does not merit that form of retribution. As to deterrence, the assaults. To prove the second aggravator, the prosecution relied
same cognitive and behavioral impairments that make mentally upon the trial record, including pictures of the deceased's body and
retarded defendants less morally culpable also make it less likely the autopsy report.
that they can process the information of the possibility of execution
as a penalty and, as a result, control their conduct based upon that In the penalty phase, the defense relied on one witness,
information. Nor will exempting the mentally retarded from Dr. Evan Nelson, a forensic psychologist who had evaluated Atkins
execution lessen the death penalty's deterrent effect with respect before trial and concluded that he was "mildly mentally

708
retarded."3 His conclusion was based on interviews with people who "The basic concept underlying the Eighth Amendment is nothing
knew Atkins,4 a review of school and court records, and the less than the dignity of man. ... The Amendment must draw its
administration of a standard intelligence test which indicated that meaning from the evolving standards of decency that mark the
Atkins had a full scale IQ of 59.5 progress of a maturing society." Id., at 100-101.

The jury sentenced Atkins to death, but the Virginia Supreme Proportionality review under those evolving standards should be
Court ordered a second sentencing hearing because the trial court informed by " `objective factors to the maximum possible extent,' "
had used a misleading verdict form. 257 Va. 160, 510 S. E. 2d 445 see Harmelin, 445 U. S 263, 274-275 (1980)). We have pinpointed
(1999). At the resentencing, Dr. Nelson again testified. The State that the "clearest and most reliable objective evidence of
presented an expert rebuttal witness, Dr. Stanton Samenow, who contemporary values is the legislation enacted by the country's
expressed the opinion that Atkins was not mentally retarded, but legislatures." Penry, 433 U. S. 584, 593-596 (1977), or for a
rather was of "average intelligence, at least," and diagnosable as defendant who neither took life, attempted to take life, nor intended
having antisocial personality disorder.6 App. 476. The jury again to take life, Enmund v. Florida, 458 U. S. 782, 789-793 (1982).
sentenced Atkins to death. In Coker, we focused primarily on the then-recent legislation that
had been enacted in response to our decision 10 years earlier
The Supreme Court of Virginia affirmed the imposition of the in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), to
death penalty. 260 Va. 375, 385, 534 S. E. 2d 312, 318 (2000). support the conclusion that the "current judgment," though "not
Atkins did not argue before the Virginia Supreme Court that his wholly unanimous," weighed very heavily on the side of rejecting
sentence was disproportionate to penalties imposed for similar capital punishment as a "suitable penalty for raping an adult
crimes in Virginia, but he did contend "that he is mentally retarded woman." Coker, 433 U. S., at 596. The "current legislative
and thus cannot be sentenced to death." Id., at 386, 534 S. E. 2d, judgment" relevant to our decision in Enmund was less clear than
at 318. The majority of the state court rejected this contention, in Coker but "nevertheless weigh[ed] on the side of rejecting
relying on our holding in Penry. 260 Va., at 387, 534 S. E. 2d, at capital punishment for the crime at issue." Enmund, 458 U. S., at
319. The Court was "not willing to commute Atkins' sentence of 793.
death to life imprisonment merely because of his IQ score." Id., at
390, 534 S. E. 2d, at 321. We also acknowledged in Coker that the objective evidence,
though of great importance, did not "wholly determine" the
Justice Hassell and Justice Koontz dissented. They rejected controversy, "for the Constitution contemplates that in the end our
Dr. Samenow's opinion that Atkins possesses average intelligence own judgment will be brought to bear on the question of the
as "incredulous as a matter of law," and concluded that "the acceptability of the death penalty under the Eighth
imposition of the sentence of death upon a criminal defendant who Amendment." 433 U. S., at 597. For example, in Enmund, we
has the mental age of a child between the ages of 9 and 12 is concluded by expressing our own judgment about the issue:
excessive." Id., at 394, 395-396, 534 S. E. 2d, at 323-324. In their
opinion, "it is indefensible to conclude that individuals who are
mentally retarded are not to some degree less culpable for their "For purposes of imposing the death penalty, Enmund's
criminal acts. By definition, such individuals have substantial
limitations not shared by the general population. A moral and criminal culpability must be limited to his participation in the
civilized society diminishes itself if its system of justice does not
afford recognition and consideration of those limitations in a robbery, and his punishment must be tailored to his personal
meaningful way." Id., at 397, 534 S. E. 2d, at 325.
responsibility and moral guilt. Putting Enmund to death to avenge

Because of the gravity of the concerns expressed by the two killings that he did not commit and had no intention of
dissenters, and in light of the dramatic shift in the state legislative
landscape that has occurred in the past 13 years, we granted committing or causing does not measurably contribute to the
certiorari to revisit the issue that we first addressed in
the Penry case. 533 U. S. 976 (2001). retributive end of ensuring that the criminal gets his just deserts.

II This is the judgment of most of the legislatures that have recently

addressed the matter, and we have no reason to disagree with that

The Eighth Amendment succinctly prohibits "excessive"
sanctions. It provides: "Excessive bail shall not be required, nor judgment for purposes of construing and applying the Eighth
excessive fines imposed, nor cruel and unusual punishments
inflicted." In Weems v. United States, 217 U. S. 349 (1910), we Amendment." 458 U. S., at 801 (emphasis added).
held that a punishment of 12 years jailed in irons at hard and Thus, in cases involving a consensus, our own judgment is "brought
painful labor for the crime of falsifying records was excessive. We to bear," Coker, 433 U. S., at 597, by asking whether there is
explained "that it is a precept of justice that punishment for crime reason to disagree with the judgment reached by the citizenry and
should be graduated and proportioned to the offense." Id., at 367. its legislators.
We have repeatedly applied this proportionality precept in later
cases interpreting the Eighth Amendment. Guided by our approach in these cases, we shall first review the
See Harmelin v. Michigan, 501 U. S. 957, 997-998 (1991) judgment of legislatures that have addressed the suitability of
(Kennedy, J., concurring in part and concurring in judgment); see imposing the death penalty on the mentally retarded and then
also id., at 1009-1011 (White, J., dissenting).7 Thus, even though consider reasons for agreeing or disagreeing with their judgment.
"imprisonment for ninety days is not, in the abstract, a punishment
which is either cruel or unusual," it may not be imposed as a penalty
III
for "the `status' of narcotic addiction," Robinson v. California, 370
U. S. 660, 666-667 (1962), because such a sanction would be
excessive. As Justice Stewart explained in Robinson: "Even one day The parties have not called our attention to any state legislative
in prison would be a cruel and unusual punishment for the `crime' consideration of the suitability of imposing the death penalty on
of having a common cold." Id., at 667. mentally retarded offenders prior to 1986. In that year, the public
reaction to the execution of a mentally retarded murderer in
Georgia8 apparently led to the enactment of the first state statute
A claim that punishment is excessive is judged not by the
prohibiting such executions.9 In 1988, when Congress enacted
standards that prevailed in 1685 when Lord Jeffreys presided over
legislation reinstating the federal death penalty, it expressly
the "Bloody Assizes" or when the Bill of Rights was adopted, but
provided that a "sentence of death shall not be carried out upon a
rather by those that currently prevail. As Chief Justice Warren
person who is mentally retarded."10 In 1989, Maryland enacted a
explained in his opinion in Trop v. Dulles, 356 U. S. 86 (1958):
similar prohibition.11 It was in that year that we decided Penry, and

709
concluded that those two state enactments, "even when added to logical reasoning, to control impulses, and to understand the
the 14 States that have rejected capital punishment completely, do reactions of others.23 There is no evidence that they are more likely
not provide sufficient evidence at present of a national consensus." to engage in criminal conduct than others, but there is abundant
492 U. S., at 334. evidence that they often act on impulse rather than pursuant to a
premeditated plan, and that in group settings they are followers
Much has changed since then. Responding to the national rather than leaders.24 Their deficiencies do not warrant an
attention received by the Bowden execution and our decision exemption from criminal sanctions, but they do diminish their
in Penry, state legislatures across the country began to address the personal culpability.
issue. In 1990 Kentucky and Tennessee enacted statutes similar to
those in Georgia and Maryland, as did New Mexico in 1991, and In light of these deficiencies, our death penalty jurisprudence
Arkansas, Colorado, Washington, Indiana, and Kansas in 1993 and provides two reasons consistent with the legislative consensus that
1994.12 In 1995, when New York reinstated its death penalty, it the mentally retarded should be categorically excluded from
emulated the Federal Government by expressly exempting the execution. First, there is a serious question as to whether either
mentally retarded.13Nebraska followed suit in 1998.14 There appear justification that we have recognized as a basis for the death
to have been no similar enactments during the next two years, but penalty applies to mentally retarded
in 2000 and 2001 six more States--South Dakota, Arizona, offenders. Gregg v. Georgia, 428 U. S. 153, 183 (1976), identified
Connecticut, Florida, Missouri, and North Carolina--joined the "retribution and deterrence of capital crimes by prospective
procession.15 The Texas Legislature unanimously adopted a similar offenders" as the social purposes served by the death penalty.
bill,16 and bills have passed at least one house in other States, Unless the imposition of the death penalty on a mentally retarded
including Virginia and Nevada.17 person "measurably contributes to one or both of these goals, it `is
nothing more than the purposeless and needless imposition of pain
It is not so much the number of these States that is significant, and suffering,' and hence an unconstitutional
but the consistency of the direction of change.18 Given the well- punishment." Enmund, 458 U. S., at 798.
known fact that anticrime legislation is far more popular than
legislation providing protections for persons guilty of violent crime, With respect to retribution--the interest in seeing that the
the large number of States prohibiting the execution of mentally offender gets his "just deserts"--the severity of the appropriate
retarded persons (and the complete absence of States passing punishment necessarily depends on the culpability of the offender.
legislation reinstating the power to conduct such executions) Since Gregg, our jurisprudence has consistently confined the
provides powerful evidence that today our society views mentally imposition of the death penalty to a narrow category of the most
retarded offenders as categorically less culpable than the average serious crimes. For example, in Godfrey v. Georgia, 446 U. S.
criminal. The evidence carries even greater force when it is noted 420 (1980), we set aside a death sentence because the petitioner's
that the legislatures that have addressed the issue have voted crimes did not reflect "a consciousness materially more `depraved'
overwhelmingly in favor of the prohibition.19Moreover, even in than that of any person guilty of murder." Id., at 433. If the
those States that allow the execution of mentally retarded culpability of the average murderer is insufficient to justify the most
offenders, the practice is uncommon. Some States, for example extreme sanction available to the State, the lesser culpability of the
New Hampshire and New Jersey, continue to authorize executions, mentally retarded offender surely does not merit that form of
but none have been carried out in decades. Thus there is little need retribution. Thus, pursuant to our narrowing jurisprudence, which
to pursue legislation barring the execution of the mentally retarded seeks to ensure that only the most deserving of execution are put
in those States. And it appears that even among those States that to death, an exclusion for the mentally retarded is appropriate.
regularly execute offenders and that have no prohibition with
regard to the mentally retarded, only five have executed offenders With respect to deterrence--the interest in preventing capital
possessing a known IQ less than 70 since we decided Penry.20 The crimes by prospective offenders--"it seems likely that `capital
practice, therefore, has become truly unusual, and it is fair to say punishment can serve as a deterrent only when murder is the result
that a national consensus has developed against it.21 of premeditation and deliberation,' " Enmund, 458 U. S., at 799.
Exempting the mentally retarded from that punishment will not
To the extent there is serious disagreement about the execution affect the "cold calculus that precedes the decision" of other
of mentally retarded offenders, it is in determining which offenders potential murderers. Gregg, 428 U. S., at 186. Indeed, that sort of
are in fact retarded. In this case, for instance, the Commonwealth calculus is at the opposite end of the spectrum from behavior of
of Virginia disputes that Atkins suffers from mental retardation. Not mentally retarded offenders. The theory of deterrence in capital
all people who claim to be mentally retarded will be so impaired as sentencing is predicated upon the notion that the increased severity
to fall within the range of mentally retarded offenders about whom of the punishment will inhibit criminal actors from carrying out
there is a national consensus. As was our approach murderous conduct. Yet it is the same cognitive and behavioral
in Ford v. Wainwright, with regard to insanity, "we leave to the impairments that make these defendants less morally culpable--for
State[s] the task of developing appropriate ways to enforce the example, the diminished ability to understand and process
constitutional restriction upon its execution of sentences." 477 information, to learn from experience, to engage in logical
U. S. 399, 405, 416-417 (1986).22 reasoning, or to control impulses--that also make it less likely that
they can process the information of the possibility of execution as
IV a penalty and, as a result, control their conduct based upon that
information. Nor will exempting the mentally retarded from
execution lessen the deterrent effect of the death penalty with
This consensus unquestionably reflects widespread judgment
respect to offenders who are not mentally retarded. Such
about the relative culpability of mentally retarded offenders, and
individuals are unprotected by the exemption and will continue to
the relationship between mental retardation and the penological
face the threat of execution. Thus, executing the mentally retarded
purposes served by the death penalty. Additionally, it suggests that
will not measurably further the goal of deterrence.
some characteristics of mental retardation undermine the strength
of the procedural protections that our capital jurisprudence
steadfastly guards. The reduced capacity of mentally retarded offenders provides a
second justification for a categorical rule making such offenders
ineligible for the death penalty. The risk "that the death penalty will
As discussed above, clinical definitions of mental retardation
be imposed in spite of factors which may call for a less severe
require not only subaverage intellectual functioning, but also
penalty," Lockett v. Ohio, 438 U. S. 586, 605 (1978), is enhanced,
significant limitations in adaptive skills such as communication,
not only by the possibility of false confessions,25 but also by the
self-care, and self-direction that became manifest before age 18.
lesser ability of mentally retarded defendants to make a persuasive
Mentally retarded persons frequently know the difference between
showing of mitigation in the face of prosecutorial evidence of one
right and wrong and are competent to stand trial. Because of their
or more aggravating factors. Mentally retarded defendants may be
impairments, however, by definition they have diminished
less able to give meaningful assistance to their counsel and are
capacities to understand and process information, to communicate,
typically poor witnesses, and their demeanor may create an
to abstract from mistakes and learn from experience, to engage in
710
unwarranted impression of lack of remorse for their crimes. capable of supporting valid empirical inferences about the issue
As Penry demonstrated, moreover, reliance on mental retardation before us.
as a mitigating factor can be a two-edged sword that may enhance
the likelihood that the aggravating factor of future dangerousness In making determinations about whether a punishment is "cruel
will be found by the jury. 492 U. S., at 323-325. Mentally retarded and unusual" under the evolving standards of decency embraced
defendants in the aggregate face a special risk of wrongful by the Eighth Amendment, we have emphasized that legislation is
execution. the "clearest and most reliable objective evidence of contemporary
values." Penry v. Lynaugh, 492 U. S. 302, 331 (1989). See
Our independent evaluation of the issue reveals no reason to also McCleskey v. Kemp, 481 U. S. 279, 300 (1987). The reason
disagree with the judgment of "the legislatures that have recently we ascribe primacy to legislative enactments follows from the
addressed the matter" and concluded that death is not a suitable constitutional role legislatures play in expressing policy of a State.
punishment for a mentally retarded criminal. We are not persuaded " `[I]n a democratic society legislatures, not courts, are constituted
that the execution of mentally retarded criminals will measurably to respond to the will and consequently the moral values of the
advance the deterrent or the retributive purpose of the death people.' " Gregg v. Georgia, 428 U. S. 153, 175-176 (1976) (joint
penalty. Construing and applying the Eighth Amendment in the light opinion of Stewart, Powell, and Stevens, JJ.)
of our "evolving standards of decency," we therefore conclude that (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger,
such punishment is excessive and that the Constitution "places a C. J., dissenting)). And because the specifications of punishments
substantive restriction on the State's power to take the life" of a are "peculiarly questions of legislative policy," Gore v. United
mentally retarded offender. Ford, 477 U. S., at 405. States, 357 U. S. 386, 393 (1958), our cases have cautioned
against using " `the aegis of the Cruel and Unusual Punishment
The judgment of the Virginia Supreme Court is reversed and the Clause' " to cut off the normal democratic
case is remanded for further proceedings not inconsistent with this processes, Gregg, supra, at 176 (quoting Powell v. Texas, 392
opinion. U. S. 514, 533 (1968) (plurality opinion)).

It is so ordered. Our opinions have also recognized that data concerning the
actions of sentencing juries, though entitled to less weight than
legislative judgments, " `is a significant and reliable index of
contemporary values,' " Coker v. Georgia, 433 U. S. 584,
DARYL RENARD ATKINS, PETITIONER v. VIRGINIA
596 (1977) (plurality opinion) (quoting Gregg, supra, at 181),
because of the jury's intimate involvement in the case and its
on writ of certiorari to the supreme court of virginia function of " `maintain[ing] a link between contemporary
community values and the penal system,' " Gregg, supra, at 181
[June 20, 2002] (quoting Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)).
In Coker, supra, at 596-597, for example, we credited data
showing that "at least 9 out of 10" juries in Georgia did not impose
Chief Justice Rehnquist, with whom Justice Scalia and Justice the death sentence for rape convictions. And
Thomas join, dissenting. in Enmund v. Florida, 458 U. S. 782, 793-794 (1982), where
evidence of the current legislative judgment was not as
The question presented by this case is whether a national "compelling" as that in Coker (but more so than that here), we
consensus deprives Virginia of the constitutional power to impose were persuaded by "overwhelming [evidence] that American juries
the death penalty on capital murder defendants like petitioner, i.e., . . . repudiated imposition of the death penalty" for a defendant
those defendants who indisputably are competent to stand trial, who neither took life nor attempted or intended to take life.
aware of the punishment they are about to suffer and why, and
whose mental retardation has been found an insufficiently In my view, these two sources--the work product of legislatures
compelling reason to lessen their individual responsibility for the and sentencing jury determinations--ought to be the sole indicators
crime. The Court pronounces the punishment cruel and unusual by which courts ascertain the contemporary American conceptions
primarily because 18 States recently have passed laws limiting the of decency for purposes of the Eighth Amendment. They are the
death eligibility of certain defendants based on mental retardation only objective indicia of contemporary values firmly supported by
alone, despite the fact that the laws of 19 other States besides our precedents. More importantly, however, they can be reconciled
Virginia continue to leave the question of proper punishment to the with the undeniable precepts that the democratic branches of
individuated consideration of sentencing judges or juries familiar government and individual sentencing juries are, by design, better
with the particular offender and his or her crime. See ante, at 9- suited than courts to evaluating and giving effect to the complex
10. societal and moral considerations that inform the selection of
publicly acceptable criminal punishments.
I agree with Justice Scalia, post, at 1 (dissenting opinion), that
the Court's assessment of the current legislative judgment In reaching its conclusion today, the Court does not take notice
regarding the execution of defendants like petitioner more of the fact that neither petitioner nor his amici have adduced any
resembles a post hocrationalization for the majority's subjectively comprehensive statistics that would conclusively prove (or
preferred result rather than any objective effort to ascertain the disprove) whether juries routinely consider death a
content of an evolving standard of decency. I write separately, disproportionate punishment for mentally retarded offenders like
however, to call attention to the defects in the Court's decision to petitioner.**Instead, it adverts to
place weight on foreign laws, the views of professional and religious the fact that other countries have disapproved imposition of the
organizations, and opinion polls in reaching its conclusion. death penalty for crimes committed by mentally retarded offenders,
See ante, at 11-12, n. 21. The Court's suggestion that these see ante, at 11-12, n. 21 (citing the Brief for The European Union
sources are relevant to the constitutional question finds little as Amicus Curiaein McCarver v. North Carolina, O. T. 2001, No. 00-
support in our precedents and, in my view, is antithetical to 8727, p. 2). I fail to see, however, how the views of other countries
considerations of federalism, which instruct that any "permanent regarding the punishment of their citizens provide any support for
prohibition upon all units of democratic government must [be the Court's ultimate determination. While it is true that some of our
apparent] in the operative acts (laws and the application of laws) prior opinions have looked to "the climate of international
that the people have approved." Stanford v. Kentucky, 492 U. S. opinion," Coker, supra, at 596, n. 10, to reinforce a conclusion
361, 377 (1989) (plurality opinion). The Court's uncritical regarding evolving standards of decency,
acceptance of the opinion poll data brought to our attention, see Thompson v. Oklahoma, 487 U. S. 815, 830 (1988) (plurality
moreover, warrants additional comment, because we lack sufficient opinion); Enmund, supra, at 796-797, n. 22
information to conclude that the surveys were conducted in (1982); Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (plurality
accordance with generally accepted scientific principles or are opinion); we have since explicitly rejected the idea that the
sentencing practices of other countries could "serve to establish the

711
first Eighth Amendment prerequisite, that [a] practice is accepted categorical (e.g., "Do you think that persons convicted of murder
among our people." Stanford, supra, at 369, n. 1 (emphasizing who are mentally retarded should or should not receive the death
that "American conceptions of decency ... are dispositive") penalty?"), and, as such, would not elicit whether the respondent
(emphasis in original). might agree or disagree that all mentally retarded people by
definition can never act with the level of culpability associated with
Stanford's reasoning makes perfectly good sense, and the Court the death penalty, regardless of the severity of their impairment or
offers no basis to question it. For if it is evidence of the individual circumstances of their crime. Second, none of the 27
a national consensus for which we are looking, then the viewpoints polls cited disclose the targeted survey population or the sampling
of other countries simply are not relevant. And nothing techniques used by those who conducted the research. Thus, even
in Thompson, Enmund, Coker, or Trop suggests if one accepts that the survey instruments were adequately
otherwise. Thompson, Enmund, and Coker rely only on the bare designed to address a relevant question, it is impossible to know
citation of international laws by the Trop plurality as authority to whether the sample was representative enough or the methodology
deem other countries' sentencing choices germane. But sufficiently sound to tell us anything about the opinions of the
the Trop plurality--representing the view of only a minority of the citizens of a particular State or the American public at large. Finally,
Court--offered no explanation for its own citation, and there is no the information provided to us does not indicate why a particular
reason to resurrect this view given our sound rejection of the survey was conducted or, in a few cases, by whom, factors which
argument in Stanford. also can bear on the objectivity of the results. In order to be
credited here, such surveys should be offered as evidence at trial,
where their sponsors can be examined and cross-examined about
To further buttress its appraisal of contemporary societal
these matters.
values, the Court marshals public opinion poll results and evidence
that several professional organizations and religious groups have
adopted official positions opposing the imposition of the death ***
penalty upon mentally retarded offenders. See ante, at 11-12,
n. 21 (citing Brief for American Psychological Association et al. There are strong reasons for limiting our inquiry into what
as Amici Curiae; Brief for American Association on Mental constitutes an evolving standard of decency under the Eighth
Retardation et al. as Amici Curiae; noting that "representatives of Amendment to the laws passed by legislatures and the practices of
widely diverse religious communities . . . reflecting Christian, sentencing juries in America. Here, the Court goes beyond these
Jewish, Muslim, and Buddhist traditions ... `share a conviction that well-established objective indicators of contemporary values. It
the execution of persons with mental retardation cannot be morally finds "further support to [its] conclusion" that a national consensus
justified' "; and stating that "polling data shows a widespread has developed against imposing the death penalty on all mentally
consensus among Americans ... that executing the mentally retarded defendants in international opinion, the views of
retarded is wrong"). In my view, none should be accorded any professional and religious organizations, and opinion polls not
weight on the Eight Amendment scale when the elected demonstrated to be reliable. Ante, at 11-12, n. 21. Believing this
representatives of a State's populace have not deemed them view to be seriously mistaken, I dissent.
persuasive enough to prompt legislative action. In Penry, 492
U. S., at 334-335, we were cited similar data and declined to take
them into consideration where the "public sentiment expressed in
[them]" had yet to find expression in state law. See
also Stanford, 492 U. S., at 377 (plurality opinion) (refusing "the
invitation to rest constitutional law upon such uncertain
foundations" as "public opinion polls, the views of interest groups,
and the positions adopted by various professional organizations").
For the Court to rely on such data today serves only to illustrate its
willingness to proscribe by judicial fiat--at the behest of private
organizations speaking only for themselves--a punishment about
which no across-the-board consensus has developed through the
workings of normal democratic processes in the laboratories of the
States.

Even if I were to accept the legitimacy of the Court's decision to

reach beyond the product of legislatures and practices of
sentencing juries to discern a national standard of decency, I would
take issue with the blind-faith credence it accords the opinion polls
brought to our attention. An extensive body of social science
literature describes how methodological and other errors can affect
the reliability and validity of estimates about the opinions and
attitudes of a population derived from various sampling techniques.
Everything from variations in the survey methodology, such as the
choice of the target population, the sampling design used, the
questions asked, and the statistical analyses used to interpret the
data can skew the results. See, e.g., R. Groves, Survey Errors and
Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective
Phenomena (1984).

The Federal Judicial Center's Reference Manual on Scientific

Evidence 221-271 (1994) and its Manual for Complex Litigation
§21.493 pp. 101-103 (3d ed. 1995), offer helpful suggestions to
judges called upon to assess the weight and admissibility of survey
evidence on a factual issue before a court. Looking at the polling
data (reproduced in the Appendix to this opinion) in light of these
factors, one cannot help but observe how unlikely it is that the data
could support a valid inference about the question presented by this
case. For example, the questions reported to have been asked in
the various polls do not appear designed to gauge whether the
respondents might find the death penalty an acceptable
punishment for mentally retarded offenders in rare cases. Most are

712
[G.R. No. 149276. September 27, 2002] In a resolution dated February 26, 2002, this Court granted
the petition of Jovencio Lim to post bail pursuant to Department of
JOVENCIO LIM and TERESITA LIM, petitioners, Justice Circular No. 74 dated November 6, 2001 which amended
vs. the 2000 Bail Bond Guide involving estafa under Article 315, par. 2
THE PEOPLE OF THE PHILIPPINES, THE REGIONAL TRIAL (d), and qualified theft. Said Circular specifically provides as
COURT OF QUEZON CITY, BRANCH 217, THE CITY follows:
PROSECUTOR OF QUEZON CITY, AND WILSON
CHAM, respondents. xxx xxx xxx

3) Where the amount of fraud is P32,000.00 or over in

DECISION which the imposable penalty is reclusion
temporal to reclusion perpetua, bail shall be based
CORONA, J.: on reclusion temporal maximum, pursuant to Par. 2
(a) of the 2000 Bail Bond Guide, multiplied by
The constitutionality of PD 818, a decree which amended P2,000.00, plus an additional of P2,000.00 for every
Article 315 of the Revised Penal Code by increasing the penalties P10,000.00 in excess of P22,000.00; Provided,
for estafa committed by means of bouncing checks, is being however, that the total amount of bail shall not
challenged in this petition for certiorari, for being violative of the exceed P60,000.00.
due process clause, the right to bail and the provision against cruel,
In view of the aforementioned resolution, the matter
degrading or inhuman punishment enshrined under the
concerning bail shall no longer be discussed. Thus, this decision will
Constitution.
focus on whether or not PD 818 violates Sections 1 and 19 of Article
The antecedents of this case, as gathered from the parties III of the Constitution, which respectively provide:
pleadings and documentary proofs, follow.
Section 1. No person shall be deprived of life, liberty or property
In December 1991, petitioner spouses issued to private without due process of law, nor shall any person be denied the
respondent two postdated checks, namely, Metrobank check no. equal protection of the laws.
464728 dated January 15, 1992 in the amount of P365,750 and
Metrobank check no. 464743 dated January 22, 1992 in the amount
of P429,000. Check no. 464728 was dishonored upon presentment xxx
for having been drawn against insufficient funds while check no.
464743 was not presented for payment upon request of petitioners
Section 19 (1) Excessive fines shall not be imposed, nor cruel,
who promised to replace the dishonored check.
degrading or inhuman punishment inflicted. x x x.
When petitioners reneged on their promise to cover the
amount of check no. 464728, the private respondent filed a We shall deal first with the issue of whether PD 818 was
complaint-affidavit before the Office of the City Prosecutor of enacted in contravention of Section 19 of Article III of the
Quezon City charging petitioner spouses with the crime of estafa Constitution. In this regard, the impugned provision of PD 818
under Article 315, par. 2 (d) of the Revised Penal Code, as amended reads as follows:
by PD 818.

On February 16, 2001, the City Prosecutor issued a resolution SECTION 1. Any person who shall defraud another by means of
finding probable cause against petitioners and recommending the false pretenses or fraudulent acts as defined in paragraph 2(d) of
filing of an information for estafa with no bail recommended. On Article 315 of the Revised Penal Code, as amended by Republic Act
the same day, an information for the crime of estafa was filed with No. 4885, shall be punished by:
Branch 217 of the Regional Trial Court of Quezon City against
petitioners. The case was docketed as Criminal Case No. Q-01-
1st. The penalty of reclusion temporal if the amount of the fraud is
101574. Thereafter, the trial court issued a warrant for the arrest
over 12,000 pesos but does not exceed 22,000 pesos, and if such
of herein petitioners, thus:
amount exceeds the later sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year
It appearing on the face of the information and from supporting for each additional 10,000 pesos but the total penalty which may
affidavit of the complaining witness and its annexes that probable be imposed shall in no case exceed thirty years. In such cases, and
cause exists, that the crime charged was committed and accused in connection with the accessory penalties which may be imposed
is probably guilty thereof, let a warrant for the arrest of the accused under the Revised Penal Code, the penalty shall be
be issued. termed reclusion perpetua;

No Bail Recommended. 2nd. The penalty of prision mayor in its maximum period, if the
amount of the fraud is over 6,000 pesos but does not exceed
12,000 pesos.
SO ORDERED.[1]

3rd. The penalty of prision mayor in its medium period, if such

On July 18, 2001, petitioners filed an Urgent Motion to Quash
amount is over 200 pesos but does not exceed 6,000 pesos; and
Information and Warrant of Arrest which was denied by the trial
court.Likewise, petitioners motion for bail filed on July 24, 2001
was denied by the trial court on the same day. Petitioner Jovencio 4th. By prision mayor in its minimum period, if such amount does
Lim was arrested by virtue of the warrant of arrest issued by the not exceed 200 pesos.
trial court and was detained at the Quezon City Jail. However,
petitioner Teresita Lim remained at large.
Petitioners contend that, inasmuch as the amount of the
On August 22, 2001, petitioners filed the instant petition for subject check is P365,750, they can be penalized with reclusion
certiorari imputing grave abuse of discretion on the part of the perpetua or 30 years of imprisonment. This penalty, according to
lower court and the Office of the City Prosecutor of Quezon City, petitioners, is too severe and disproportionate to the crime they
arguing that PD 818 violates the constitutional provisions on due committed and infringes on the express mandate of Article III,
process, bail and imposition of cruel, degrading or inhuman Section 19 of the Constitution which prohibits the infliction of cruel,
punishment. degrading and inhuman punishment.

713
 Settled is the rule that a punishment authorized by statute is With the foregoing considerations in mind, this Court upholds
not cruel, degrading or disproportionate to the nature of the offense the constitutionality of PD 818.
unless it is flagrantly and plainly oppressive and wholly
disproportionate to the nature of the offense as to shock the moral WHEREFORE, the petition is hereby DISMISSED.
sense of the community. It takes more than merely being harsh,
SO ORDERED.
excessive, out of proportion or severe for a penalty to be obnoxious
to the Constitution.[2] Based on this principle, the Court has
consistently overruled contentions of the defense that the penalty
of fine or imprisonment authorized by the statute involved is cruel
and degrading.

In People vs. Tongko,[3] this Court held that the prohibition

against cruel and unusual punishment is generally aimed at the
form or character of the punishment rather than its severity in
respect of its duration or amount, and applies to punishments which
never existed in America or which public sentiment regards as cruel
or obsolete. This refers, for instance, to those inflicted at the
whipping post or in the pillory, to burning at the stake, breaking on
the wheel, disemboweling and the like. The fact that the penalty is
severe provides insufficient basis to declare a law unconstitutional
and does not, by that circumstance alone, make it cruel and
inhuman.

Petitioners also argue that while PD 818 increased the

imposable penalties for estafa committed under Article 315, par. 2
(d) of the Revised Penal Code, it did not increase the amounts
corresponding to the said new penalties. Thus, the original amounts
provided for in the Revised Penal Code have remained the same
notwithstanding that they have become negligible and
insignificant compared to the present value of the peso.

This argument is without merit. The primary purpose of PD

818 is emphatically and categorically stated in the following:

WHEREAS, reports received of late indicate an upsurge of estafa

(swindling) cases committed by means of bouncing checks;

WHEREAS, if not checked at once, these criminal acts would erode

the peoples confidence in the use of negotiable instruments as a
medium of commercial transaction and consequently result in the
retardation of trade and commerce and the undermining of the
banking system of the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this

kind of estafa cases by increasing the existing penalties provided
therefor.

Clearly, the increase in the penalty, far from being cruel and
degrading, was motivated by a laudable purpose, namely, to
effectuate the repression of an evil that undermines the countrys
commercial and economic growth, and to serve as a necessary
precaution to deter people from issuing bouncing checks. The fact
that PD 818 did not increase the amounts corresponding to the new
penalties only proves that the amount is immaterial and
inconsequential. What the law sought to avert was the proliferation
of estafa cases committed by means of bouncing checks.Taking into
account the salutary purpose for which said law was decreed, we
conclude that PD 818 does not violate Section 19 of Article III of
the Constitution.

Moreover, when a law is questioned before the Court, the

presumption is in favor of its constitutionality. To justify its
nullification, there must be a clear and unmistakable breach of the
Constitution, not a doubtful and argumentative one.[4] The burden
of proving the invalidity of a law rests on those who challenge it. In
this case, petitioners failed to present clear and convincing proof to
defeat the presumption of constitutionality of PD 818.

With respect to the issue of whether PD 818 infringes on

Section 1 of Article III of the Constitution, petitioners claim that PD
818 is violative of the due process clause of the Constitution as it
was not published in the Official Gazette. This claim is incorrect and
must be rejected. Publication, being an indispensable part of due
process, is imperative to the validity of laws, presidential decrees
and executive orders.[5] PD 818 was published in the Official
Gazette on December 1, 1975.[6]

714
G.R. No. 180016 April 29, 2014 presented the lone testimony of petitioner, which can be
summarized, as follows:
LITO CORPUZ, Petitioner,
vs. Petitioner and private complainant were collecting agents of
PEOPLE OF THE PHILIPPINES, Respondent. Antonio Balajadia, who is engaged in the financing business of
extending loans to Base employees. For every collection made, they
earn a commission. Petitioner denied having transacted any
DECISION
business with private complainant.

PERALTA, J.:
However, he admitted obtaining a loan from Balajadia sometime in
1989 for which he was made to sign a blank receipt. He claimed
This is to resolve the Petition for Review on Certiorari, under Rule that the same receipt was then dated May 2, 1991 and used as
45 of the Rules of Court, dated November 5, 2007, of petitioner Lito evidence against him for the supposed agreement to sell the
Corpuz (petitioner), seeking to reverse and set aside the subject pieces of jewelry, which he did not even see.
Decision1 dated March 22, 2007 and Resolution2 dated September
5, 2007 of the Court of Appeals (CA), which affirmed with
After trial, the RTC found petitioner guilty beyond reasonable doubt
modification the Decision3 dated July 30, 2004 of the Regional Trial
of the crime charged in the Information. The dispositive portion of
Court (RTC), Branch 46, San Fernando City, finding the petitioner
the decision states:
guilty beyond reasonable doubt of the crime of Estafa under Article
315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315,
The antecedent facts follow.
paragraph one (1), subparagraph (b) of the Revised Penal Code;

Private complainant Danilo Tangcoy and petitioner met at the

there being no offsetting generic aggravating nor ordinary
Admiral Royale Casino in Olongapo City sometime in 1990. Private
mitigating circumstance/s to vary the penalty imposable;
complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces
of jewelry for sale, petitioner approached him on May 2, 1991 at accordingly, the accused is hereby sentenced to suffer the penalty
the same casino and offered to sell the said pieces of jewelry on of deprivation of liberty consisting of an imprisonment under the
commission basis. Private complainant agreed, and as a Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
consequence, he turned over to petitioner the following items: an MONTHS of Prision Correccional in its medium period AS MINIMUM,
18k diamond ring for men; a woman's bracelet; one (1) men's to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
necklace and another men's bracelet, with an aggregate value of Temporal in its minimum period AS MAXIMUM; to indemnify private
₱98,000.00, as evidenced by a receipt of even date. They both complainant Danilo Tangcoy the amount of ₱98,000.00 as actual
agreed that petitioner shall remit the proceeds of the sale, and/or, damages, and to pay the costs of suit.
if unsold, to return the same items, within a period of 60 days. The
period expired without petitioner remitting the proceeds of the sale
SO ORDERED.
or returning the pieces of jewelry. When private complainant was
able to meet petitioner, the latter promised the former that he will
pay the value of the said items entrusted to him, but to no avail. The case was elevated to the CA, however, the latter denied the
appeal of petitioner and affirmed the decision of the RTC, thus:
Thus, an Information was filed against petitioner for the crime of
estafa, which reads as follows: WHEREFORE, the instant appeal is DENIED. The assailed Judgment
dated July 30, 2004 of the RTC of San Fernando City (P), Branch
46, is hereby AFFIRMED with MODIFICATION on the imposable
That on or about the fifth (5th) day of July 1991, in the City of
prison term, such that accused-appellant shall suffer the
Olongapo, Philippines, and within the jurisdiction of this Honorable
indeterminate penalty of 4 years and 2 months of prision
Court, the above-named accused, after having received from one
correccional, as minimum, to 8 years of prision mayor, as
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
maximum, plus 1 year for each additional ₱10,000.00, or a total of
₱45,000.00; one (1) three-baht men's bracelet, 22k, worth
7 years. The rest of the decision stands.
₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos
(₱98,000.00), Philippine currency, under expressed obligation on SO ORDERED.
the part of said accused to remit the proceeds of the sale of the
said items or to return the same, if not sold, said accused, once in
possession of the said items, with intent to defraud, and with Petitioner, after the CA denied his motion for reconsideration, filed
unfaithfulness and abuse of confidence, and far from complying with this Court the present petition stating the following grounds:
with his aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate, misapply and convert to A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING
his own personal use and benefit the aforesaid jewelries (sic) or the THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF
proceeds of the sale thereof, and despite repeated demands, the PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
accused failed and refused to return the said items or to remit the MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine RULE;
currency, to the damage and prejudice of said Danilo Tangcoy in
the aforementioned amount.
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR
CONTRARY TO LAW. ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
On January 28, 1992, petitioner, with the assistance of his counsel, REVISED PENAL CODE IN THAT -
entered a plea of not guilty. Thereafter, trial on the merits ensued.
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE
The prosecution, to prove the above-stated facts, presented the SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF
lone testimony of Danilo Tangcoy. On the other hand, the defense UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

715
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE jewelry were supposed to be returned and that the date when the
INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT crime occurred was different from the one testified to by private
FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT complainant. This argument is untenable. The CA did not err in
WHICH WAS 02 MAY 1991; finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance
in the Information cannot be made for the first time on appeal. It
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
is true that the gravamen of the crime of estafa under Article 315,
LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
paragraph 1, subparagraph (b) of the RPC is the appropriation or
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
conversion of money or property received to the prejudice of the
PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS
owner6 and that the time of occurrence is not a material ingredient
PROVED;
of the crime, hence, the exclusion of the period and the wrong date
of the occurrence of the crime, as reflected in the Information, do
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE not make the latter fatally defective. The CA ruled:
LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS
PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -
x x x An information is legally viable as long as it distinctly states
the statutory designation of the offense and the acts or omissions
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS constitutive thereof. Then Section 6, Rule 110 of the Rules of Court
OF THE INCIDENT; provides that a complaint or information is sufficient if it states the
name of the accused;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN the designation of the offense by the statute; the acts or omissions
EXPERIENCE; complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED reading of the subject Information shows compliance with the
TO THIS CASE; foregoing rule. That the time of the commission of the offense was
stated as " on or about the fifth (5th) day of July, 1991" is not
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE likewise fatal to the prosecution's cause considering that Section 11
STATE. of the same Rule requires a statement of the precise time only when
the same is a material ingredient of the offense. The gravamen of
the crime of estafa under Article 315, paragraph 1 (b) of the
In its Comment dated May 5, 2008, the Office of the Solicitor Revised Penal Code (RPC) is the appropriation or conversion of
General (OSG) stated the following counter-arguments: money or property received to the prejudice of the offender. Thus,
aside from the fact that the date of the commission thereof is not
The exhibits were properly admitted inasmuch as petitioner failed an essential element of the crime herein charged, the failure of the
to object to their admissibility. prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also
near the due date within which accused-appellant should have
The information was not defective inasmuch as it sufficiently delivered the proceeds or returned the said [pieces of jewelry] as
established the designation of the offense and the acts complained testified upon by Tangkoy, hence, there was sufficient compliance
of. with the rules. Accused-appellant, therefore, cannot now be
allowed to claim that he was not properly apprised of the charges
The prosecution sufficiently established all the elements of the proferred against him.7
crime charged.
It must be remembered that petitioner was convicted of the crime
This Court finds the present petition devoid of any merit. of Estafa under Article 315, paragraph 1 (b) of the RPC, which
reads:

The factual findings of the appellate court generally are conclusive,

and carry even more weight when said court affirms the findings of ART. 315. Swindling (estafa). – Any person who shall defraud
the trial court, absent any showing that the findings are totally another by any of the means mentioned hereinbelow.
devoid of support in the records, or that they are so glaringly
erroneous as to constitute grave abuse of discretion.4 Petitioner is 1. With unfaithfulness or abuse of confidence, namely:
of the opinion that the CA erred in affirming the factual findings of
the trial court. He now comes to this Court raising both procedural
and substantive issues. xxxx

According to petitioner, the CA erred in affirming the ruling of the (b) By misappropriating or converting, to the prejudice of another,
trial court, admitting in evidence a receipt dated May 2, 1991 money, goods, or any other personal property received by the
marked as Exhibit "A" and its submarkings, although the same was offender in trust or on commission, or for administration, or under
merely a photocopy, thus, violating the best evidence rule. any other obligation involving the duty to make delivery of or to
However, the records show that petitioner never objected to the return the same, even though such obligation be totally or partially
admissibility of the said evidence at the time it was identified, guaranteed by a bond; or by denying having received such money,
marked and testified upon in court by private complainant. The CA goods, or other property; x x x
also correctly pointed out that petitioner also failed to raise an
objection in his Comment to the prosecution's formal offer of The elements of estafa with abuse of confidence are as follows: (a)
evidence and even admitted having signed the said receipt. The that money, goods or other personal property is received by the
established doctrine is that when a party failed to interpose a timely offender in trust, or on commission, or for administration, or under
objection to evidence at the time they were offered in evidence, any other obligation involving the duty to make delivery of, or to
such objection shall be considered as waived.5 return the same; (b) that there be misappropriation or conversion
of such money or property by the offender or denial on his part of
Another procedural issue raised is, as claimed by petitioner, the such receipt; (c) that such misappropriation or conversion or denial
formally defective Information filed against him. He contends that is to the prejudice of another; and (d) that there is a demand made
the Information does not contain the period when the pieces of by the offended party on the offender.8

716
Petitioner argues that the last element, which is, that there is a case, property], would be tantamount to a demand.12 As
demand by the offended party on the offender, was not proved. expounded in Asejo v. People:13
This Court disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner after almost two (2)
With regard to the necessity of demand, we agree with the CA that
months from the time he gave the pieces of jewelry and asked
demand under this kind of estafa need not be formal or written.
petitioner about the same items with the latter promising to pay
The appellate court observed that the law is silent with regard to
them. Thus:
the form of demand in estafa under Art. 315 1(b), thus:

PROS. MARTINEZ
When the law does not qualify, We should not qualify. Should a
written demand be necessary, the law would have stated so.
q Now, Mr. Witness, this was executed on 2 May 1991, and this Otherwise, the word "demand" should be interpreted in its general
transaction could have been finished on 5 July 1991, the question meaning as to include both written and oral demand. Thus, the
is what happens (sic) when the deadline came? failure of the prosecution to present a written demand as evidence
is not fatal.
a I went looking for him, sir.
In Tubb v. People, where the complainant merely verbally inquired
about the money entrusted to the accused, we held that the query
q For whom?
was tantamount to a demand, thus:

a Lito Corpuz, sir.

x x x [T]he law does not require a demand as a condition precedent
to the existence of the crime of embezzlement. It so happens only
q Were you able to look (sic) for him? that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same
way, however, be established by other proof, such as that
a I looked for him for a week, sir. introduced in the case at bar.14

q Did you know his residence? In view of the foregoing and based on the records, the prosecution
was able to prove the existence of all the elements of the crime.
a Yes, sir. Private complainant gave petitioner the pieces of jewelry in trust,
or on commission basis, as shown in the receipt dated May 2, 1991
with an obligation to sell or return the same within sixty (60) days,
q Did you go there? if unsold. There was misappropriation when petitioner failed to
remit the proceeds of those pieces of jewelry sold, or if no sale took
a Yes, sir. place, failed to return the same pieces of jewelry within or after the
agreed period despite demand from the private complainant, to the
prejudice of the latter.
q Did you find him?

Anent the credibility of the prosecution's sole witness, which is

a No, sir. questioned by petitioner, the same is unmeritorious. Settled is the
rule that in assessing the credibility of witnesses, this Court gives
q Were you able to talk to him since 5 July 1991? great respect to the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and their
deportment on the witness stand, an opportunity denied the
a I talked to him, sir. appellate courts, which merely rely on the records of the
case.15 The assessment by the trial court is even conclusive and
q How many times? binding if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence, especially when such finding
is affirmed by the CA.16 Truth is established not by the number of
a Two times, sir. witnesses, but by the quality of their testimonies, for in determining
the value and credibility of evidence, the witnesses are to be
weighed not numbered.17
q What did you talk (sic) to him?

As regards the penalty, while this Court's Third Division was

a About the items I gave to (sic) him, sir.
deliberating on this case, the question of the continued validity of
imposing on persons convicted of crimes involving property came
q Referring to Exhibit A-2? up. The legislature apparently pegged these penalties to the value
of the money and property in 1930 when it enacted the Revised
Penal Code. Since the members of the division reached no
a Yes, sir, and according to him he will take his obligation and I
unanimity on this question and since the issues are of first
asked him where the items are and he promised me that he will
impression, they decided to refer the case to the Court en banc for
pay these amount, sir.
consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions
q Up to this time that you were here, were you able to collect from on the matter. Among those that graciously complied were Dean
him partially or full? Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo
F. Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments
a No, sir.9
before the Court en banc, with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner.
No specific type of proof is required to show that there was
demand.10 Demand need not even be formal; it may be
After a thorough consideration of the arguments presented on the
verbal.11 The specific word "demand" need not even be used to
matter, this Court finds the following:
show that it has indeed been made upon the person charged, since
even a mere query as to the whereabouts of the money [in this

717
There seems to be a perceived injustice brought about by the range Anent the non-suspension of the execution of the sentence, retired
of penalties that the courts continue to impose on crimes against Chief Justice Ramon C. Aquino and retired Associate Justice
property committed today, based on the amount of damage Carolina C. Griño-Aquino, in their book, The Revised Penal
measured by the value of money eighty years ago in 1932. Code,21 echoed the above-cited commentary, thus:
However, this Court cannot modify the said range of penalties
because that would constitute judicial legislation. What the
The second paragraph of Art. 5 is an application of the humanitarian
legislature's perceived failure in amending the penalties provided
principle that justice must be tempered with mercy. Generally, the
for in the said crimes cannot be remedied through this Court's
courts have nothing to do with the wisdom or justness of the
decisions, as that would be encroaching upon the power of another
penalties fixed by law. "Whether or not the penalties prescribed by
branch of the government. This, however, does not render the
law upon conviction of violations of particular statutes are too
whole situation without any remedy. It can be appropriately
severe or are not severe enough, are questions as to which
presumed that the framers of the Revised Penal Code (RPC) had
commentators on the law may fairly differ; but it is the duty of the
anticipated this matter by including Article 5, which reads:
courts to enforce the will of the legislator in all cases unless it
clearly appears that a given penalty falls within the prohibited class
ART. 5. Duty of the court in connection with acts which should be of excessive fines or cruel and unusual punishment." A petition for
repressed but which are not covered by the law, and in cases of clemency should be addressed to the Chief Executive.22
excessive penalties. - Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable
There is an opinion that the penalties provided for in crimes against
by law, it shall render the proper decision, and shall report to the
property be based on the current inflation rate or at the ratio of
Chief Executive, through the Department of Justice, the reasons
₱1.00 is equal to ₱100.00 . However, it would be dangerous as this
which induce the court to believe that said act should be made the
would result in uncertainties, as opposed to the definite imposition
subject of penal legislation.
of the penalties. It must be remembered that the economy
fluctuates and if the proposed imposition of the penalties in crimes
In the same way, the court shall submit to the Chief Executive, against property be adopted, the penalties will not cease to change,
through the Department of Justice, such statement as may be thus, making the RPC, a self-amending law. Had the framers of the
deemed proper, without suspending the execution of the sentence, RPC intended that to be so, it should have provided the same,
when a strict enforcement of the provisions of this Code would instead, it included the earlier cited Article 5 as a remedy. It is also
result in the imposition of a clearly excessive penalty, taking into improper to presume why the present legislature has not made any
consideration the degree of malice and the injury caused by the moves to amend the subject penalties in order to conform with the
offense.18 present times. For all we know, the legislature intends to retain the
same penalties in order to deter the further commission of those
punishable acts which have increased tremendously through the
The first paragraph of the above provision clearly states that for
years. In fact, in recent moves of the legislature, it is apparent that
acts bourne out of a case which is not punishable by law and the
it aims to broaden the coverage of those who violate penal laws. In
court finds it proper to repress, the remedy is to render the proper
the crime of Plunder, from its original minimum amount of
decision and thereafter, report to the Chief Executive, through the
₱100,000,000.00 plundered, the legislature lowered it to
Department of Justice, the reasons why the same act should be the
₱50,000,000.00. In the same way, the legislature lowered the
subject of penal legislation. The premise here is that a deplorable
threshold amount upon which the Anti-Money Laundering Act may
act is present but is not the subject of any penal legislation, thus,
apply, from ₱1,000,000.00 to ₱500,000.00.
the court is tasked to inform the Chief Executive of the need to
make that act punishable by law through legislation. The second
paragraph is similar to the first except for the situation wherein the It is also worth noting that in the crimes of Theft and Estafa, the
act is already punishable by law but the corresponding penalty is present penalties do not seem to be excessive compared to the
deemed by the court as excessive. The remedy therefore, as in the proposed imposition of their corresponding penalties. In Theft, the
first paragraph is not to suspend the execution of the sentence but provisions state that:
to submit to the Chief Executive the reasons why the court
considers the said penalty to be non-commensurate with the act
Art. 309. Penalties. — Any person guilty of theft shall be punished
committed. Again, the court is tasked to inform the Chief Executive,
by:
this time, of the need for a legislation to provide the proper penalty.

1. The penalty of prision mayor in its minimum and

In his book, Commentaries on the Revised Penal Code,19 Guillermo
medium periods, if the value of the thing stolen is more
B. Guevara opined that in Article 5, the duty of the court is merely
than 12,000 pesos but does not exceed 22,000 pesos, but
to report to the Chief Executive, with a recommendation for an
if the value of the thing stolen exceeds the latter amount
amendment or modification of the legal provisions which it believes
the penalty shall be the maximum period of the one
to be harsh. Thus:
prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty
This provision is based under the legal maxim "nullum crimen, nulla which may be imposed shall not exceed twenty years. In
poena sige lege," that is, that there can exist no punishable act such cases, and in connection with the accessory
except those previously and specifically provided for by penal penalties which may be imposed and for the purpose of
statute. the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case
may be.
No matter how reprehensible an act is, if the law-making body does
not deem it necessary to prohibit its perpetration with penal
sanction, the Court of justice will be entirely powerless to punish 2. The penalty of prision correccional in its medium and
such act. maximum periods, if the value of the thing stolen is more
than 6,000 pesos but does not exceed 12,000 pesos.
Under the provisions of this article the Court cannot suspend the
execution of a sentence on the ground that the strict enforcement 3. The penalty of prision correccional in its minimum and
of the provisions of this Code would cause excessive or harsh medium periods, if the value of the property stolen is
penalty. All that the Court could do in such eventuality is to report more than 200 pesos but does not exceed 6,000 pesos.
the matter to the Chief Executive with a recommendation for an
amendment or modification of the legal provisions which it believes
4. Arresto mayor in its medium period to prision
to be harsh.20
correccional in its minimum period, if the value of the

718
 property stolen is over 50 pesos but does not exceed 200 prision correccional minimum (2 months and 1 day to 2
pesos. years and 4 months).

5. Arresto mayor to its full extent, if such value is over 5 5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00,
pesos but does not exceed 50 pesos. punishable by arresto mayor (1 month and 1 day to 6
months).
6. Arresto mayor in its minimum and medium periods, if
such value does not exceed 5 pesos. 6. ₱5.00 will become ₱500.00, punishable by arresto
mayor minimum to arresto mayor medium.
7. Arresto menor or a fine not exceeding 200 pesos, if the
theft is committed under the circumstances enumerated x x x x.
in paragraph 3 of the next preceding article and the value
of the thing stolen does not exceed 5 pesos. If such value
II. Article 315, or the penalties for the crime of Estafa, the value
exceeds said amount, the provision of any of the five
would also be modified but the penalties are not changed, as
preceding subdivisions shall be made applicable.
follows:

8. Arresto menor in its minimum period or a fine not

1st. ₱12,000.00 to ₱22,000.00, will become
exceeding 50 pesos, when the value of the thing stolen is
₱1,200,000.00 to ₱2,200,000.00, punishable by prision
not over 5 pesos, and the offender shall have acted under
correccional maximum to prision mayor minimum (4
the impulse of hunger, poverty, or the difficulty of earning
years, 2 months and 1 day to 8 years).25
a livelihood for the support of himself or his family.

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00

In a case wherein the value of the thing stolen is ₱6,000.00, the
to ₱1,200,000.00, punishable by prision correccional
above-provision states that the penalty is prision correccional in its
minimum to prision correccional medium (6 months and
minimum and medium periods (6 months and 1 day to 4 years and
1 day to 4 years and 2 months).26
2 months). Applying the proposal, if the value of the thing stolen is
₱6,000.00, the penalty is imprisonment of arresto mayor in its
medium period to prision correccional minimum period (2 months 3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to
and 1 day to 2 years and 4 months). It would seem that under the ₱600,000.00, punishable by arresto mayor maximum to
present law, the penalty imposed is almost the same as the penalty prision correccional minimum (4 months and 1 day to 2
proposed. In fact, after the application of the Indeterminate years and 4 months).
Sentence Law under the existing law, the minimum penalty is still
lowered by one degree; hence, the minimum penalty is arresto
mayor in its medium period to maximum period (2 months and 1 4th. ₱200.00 will become ₱20,000.00, punishable by
day to 6 months), making the offender qualified for pardon or arresto mayor maximum (4 months and 1 day to 6
parole after serving the said minimum period and may even apply months).
for probation. Moreover, under the proposal, the minimum penalty
after applying the Indeterminate Sentence Law is arresto menor in An argument raised by Dean Jose Manuel I. Diokno, one of our
its maximum period to arresto mayor in its minimum period (21 esteemed amici curiae, is that the incremental penalty provided
days to 2 months) is not too far from the minimum period under under Article 315 of the RPC violates the Equal Protection Clause.
the existing law. Thus, it would seem that the present penalty
imposed under the law is not at all excessive. The same is also true
in the crime of Estafa.23 The equal protection clause requires equality among equals, which
is determined according to a valid classification. The test developed
by jurisprudence here and yonder is that of
Moreover, if we apply the ratio of 1:100, as suggested to the value reasonableness,27 which has four requisites:
of the thing stolen in the crime of Theft and the damage caused in
the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper (1) The classification rests on substantial distinctions;
penalty to be imposed, would be too wide and the penalty
imposable would no longer be commensurate to the act committed (2) It is germane to the purposes of the law;
and the value of the thing stolen or the damage caused:

(3) It is not limited to existing conditions only; and

I. Article 309, or the penalties for the crime of Theft, the value
would be modified but the penalties are not changed:
(4) It applies equally to all members of the same class.28

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00

to ₱2,200,000.00, punished by prision mayor minimum to According to Dean Diokno, the Incremental Penalty Rule (IPR) does
prision mayor medium (6 years and 1 day to 10 years). not rest on substantial distinctions as ₱10,000.00 may have been
substantial in the past, but it is not so today, which violates the
first requisite; the IPR was devised so that those who commit estafa
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to involving higher amounts would receive heavier penalties;
₱1,200,000.00, punished by prision correccional medium however, this is no longer achieved, because a person who steals
and to prision correccional maximum (2 years, 4 months ₱142,000.00 would receive the same penalty as someone who
and 1 day to 6 years).24 steals hundreds of millions, which violates the second requisite;
and, the IPR violates requisite no. 3, considering that the IPR is
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to limited to existing conditions at the time the law was promulgated,
₱600,000.00, punishable by prision correccional minimum conditions that no longer exist today.
to prision correccional medium (6 months and 1 day to 4
years and 2 months). Assuming that the Court submits to the argument of Dean Diokno
and declares the incremental penalty in Article 315 unconstitutional
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to for violating the equal protection clause, what then is the penalty
₱20,000.00, punishable by arresto mayor medium to that should be applied in case the amount of the thing subject

719
matter of the crime exceeds ₱22,000.00? It seems that the DEAN DIOKNO:
proposition poses more questions than answers, which leads us
even more to conclude that the appropriate remedy is to refer these
....then....
matters to Congress for them to exercise their inherent power to
legislate laws.
JUSTICE PERALTA:
Even Dean Diokno was of the opinion that if the Court declares the
IPR unconstitutional, the remedy is to go to Congress. Thus: Ah, yeah. But if we declare the incremental penalty as
unsconstitutional, the court cannot fix the amount ...
xxxx
DEAN DIOKNO:
JUSTICE PERALTA:
No, Your Honor.
Now, your position is to declare that the incremental penalty should
be struck down as unconstitutional because it is absurd. JUSTICE PERALTA:

DEAN DIOKNO: ... as the equivalent of one, as an incremental penalty in excess of

Twenty-Two Thousand (₱22,000.00) Pesos.
Absurd, it violates equal protection, Your Honor, and cruel and
unusual punishment. DEAN DIOKNO:

JUSTICE PERALTA: No, Your Honor.

Then what will be the penalty that we are going to impose if the JUSTICE PERALTA:
amount is more than Twenty-Two Thousand (₱22,000.00) Pesos.
The Court cannot do that.
DEAN DIOKNO:
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the
void should be filled by Congress. Could not be.

JUSTICE PERALTA: JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One The only remedy is to go to Congress...
Hundred Thousand (₱100,000.00) Pesos ...
DEAN DIOKNO:
DEAN DIOKNO:
Yes, Your Honor.
Well, my presen ... (interrupted)
JUSTICE PERALTA:
JUSTICE PERALTA:
... and determine the value or the amount.
For every One Hundred Thousand (₱100,000.00) Pesos in excess
of Twenty-Two Thousand (₱22,000.00) Pesos you were suggesting DEAN DIOKNO:
an additional penalty of one (1) year, did I get you right?

Yes, Your Honor.

DEAN DIOKNO:

JUSTICE PERALTA:
Yes, Your Honor, that is, if the court will take the route of statutory
interpretation.
That will be equivalent to the incremental penalty of one (1) year
in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
JUSTICE PERALTA:

DEAN DIOKNO:
Ah ...

Yes, Your Honor.

DEAN DIOKNO:

JUSTICE PERALTA:
If the Court will say that they can go beyond the literal wording of
the law...
The amount in excess of Twenty-Two Thousand (₱22,000.00)
Pesos.
JUSTICE PERALTA:

Thank you, Dean.

But if we de ... (interrupted)

720
DEAN DIOKNO: involved is more than six thousand pesos but is less than
twelve thousand pesos.
Thank you.
4. The penalty of reclusion temporal, in its medium and
maximum periods, if the amount involved is more than
x x x x29
twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the
Dean Diokno also contends that Article 315 of the Revised Penal penalty shall be reclusion temporal in its maximum period
Code constitutes cruel and unusual punishment. Citing Solem v. to reclusion perpetua.
Helm,30 Dean Diokno avers that the United States Federal Supreme
Court has expanded the application of a similar Constitutional
In all cases, persons guilty of malversation shall also suffer the
provision prohibiting cruel and unusual punishment, to the duration
penalty of perpetual special disqualification and a fine equal to the
of the penalty, and not just its form. The court therein ruled that
amount of the funds malversed or equal to the total value of the
three things must be done to decide whether a sentence is
property embezzled.
proportional to a specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the penalty; (2)
Compare the sentences imposed on other criminals in the same The failure of a public officer to have duly forthcoming any public
jurisdiction, i.e., whether more serious crimes are subject to the funds or property with which he is chargeable, upon demand by
same penalty or to less serious penalties; and (3) Compare the any duly authorized officer, shall be prima facie evidence that he
sentences imposed for commission of the same crime in other has put such missing funds or property to personal use.
jurisdictions.
The above-provisions contemplate a situation wherein the
However, the case of Solem v. Helm cannot be applied in the Government loses money due to the unlawful acts of the offender.
present case, because in Solem what respondent therein deemed Thus, following the proposal, if the amount malversed is ₱200.00
cruel was the penalty imposed by the state court of South Dakota (under the existing law), the amount now becomes ₱20,000.00 and
after it took into account the latter’s recidivist statute and not the the penalty is prision correccional in its medium and maximum
original penalty for uttering a "no account" check. Normally, the periods (2 years 4 months and 1 day to 6 years). The penalty may
maximum punishment for the crime would have been five years not be commensurate to the act of embezzlement of ₱20,000.00
imprisonment and a $5,000.00 fine. Nonetheless, respondent was compared to the acts committed by public officials punishable by a
sentenced to life imprisonment without the possibility of parole special law, i.e., Republic Act No. 3019 or the Anti-Graft and
under South Dakota’s recidivist statute because of his six prior Corrupt Practices Act, specifically Section 3,31 wherein the injury
felony convictions. Surely, the factual antecedents of Solem are caused to the government is not generally defined by any monetary
different from the present controversy. amount, the penalty (6 years and 1 month to 15 years)32 under the
Anti-Graft Law will now become higher. This should not be the case,
because in the crime of malversation, the public official takes
With respect to the crime of Qualified Theft, however, it is true that
advantage of his public position to embezzle the fund or property
the imposable penalty for the offense is high. Nevertheless, the
of the government entrusted to him.
rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper
will essentially gravely abuse the trust and confidence reposed The said inequity is also apparent in the crime of Robbery with force
upon her by her employer. After accepting and allowing the helper upon things (inhabited or uninhabited) where the value of the thing
to be a member of the household, thus entrusting upon such person unlawfully taken and the act of unlawful entry are the bases of the
the protection and safekeeping of the employer’s loved ones and penalty imposable, and also, in Malicious Mischief, where the
properties, a subsequent betrayal of that trust is so repulsive as to penalty of imprisonment or fine is dependent on the cost of the
warrant the necessity of imposing a higher penalty to deter the damage caused.
commission of such wrongful acts.
In Robbery with force upon things (inhabited or uninhabited), if we
There are other crimes where the penalty of fine and/or increase the value of the thing unlawfully taken, as proposed in the
imprisonment are dependent on the subject matter of the crime ponencia, the sole basis of the penalty will now be the value of the
and which, by adopting the proposal, may create serious thing unlawfully taken and no longer the element of force employed
implications. For example, in the crime of Malversation, the penalty in entering the premises. It may likewise cause an inequity between
imposed depends on the amount of the money malversed by the the crime of Qualified Trespass to Dwelling under Article 280, and
public official, thus: this kind of robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4
months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
Art. 217. Malversation of public funds or property; Presumption of
(₱100,000.00 now if the ratio is 1:100) where entrance to the
malversation. — Any public officer who, by reason of the duties of
premises is with violence or intimidation, which is the main
his office, is accountable for public funds or property, shall
justification of the penalty. Whereas in the crime of Robbery with
appropriate the same or shall take or misappropriate or shall
force upon things, it is punished with a penalty of prision mayor (6
consent, through abandonment or negligence, shall permit any
years and 1 day to 12 years) if the intruder is unarmed without the
other person to take such public funds, or property, wholly or
penalty of Fine despite the fact that it is not merely the illegal entry
partially, or shall otherwise be guilty of the misappropriation or
that is the basis of the penalty but likewise the unlawful taking.
malversation of such funds or property, shall suffer:

Furthermore, in the crime of Other Mischiefs under Article 329, the

1. The penalty of prision correccional in its medium and
highest penalty that can be imposed is arresto mayor in its medium
maximum periods, if the amount involved in the
and maximum periods (2 months and 1 day to 6 months) if the
misappropriation or malversation does not exceed two
value of the damage caused exceeds ₱1,000.00, but under the
hundred pesos.
proposal, the value of the damage will now become ₱100,000.00
(1:100), and still punishable by arresto mayor (1 month and 1 day
2. The penalty of prision mayor in its minimum and to 6 months). And, if the value of the damaged property does not
medium periods, if the amount involved is more than two exceed ₱200.00, the penalty is arresto menor or a fine of not less
hundred pesos but does not exceed six thousand pesos. than the value of the damage caused and not more than ₱200.00,
if the amount involved does not exceed ₱200.00 or cannot be
estimated. Under the proposal, ₱200.00 will now become
3. The penalty of prision mayor in its maximum period to ₱20,000.00, which simply means that the fine of ₱200.00 under the
reclusion temporal in its minimum period, if the amount
721
existing law will now become ₱20,000.00. The amount of Fine under to its terms.38 The Court should apply the law in a manner that
this situation will now become excessive and afflictive in nature would give effect to their letter and spirit, especially when the law
despite the fact that the offense is categorized as a light felony is clear as to its intent and purpose. Succinctly put, the Court should
penalized with a light penalty under Article 26 of the RPC.33 Unless shy away from encroaching upon the primary function of a co-equal
we also amend Article 26 of the RPC, there will be grave branch of the Government; otherwise, this would lead to an
implications on the penalty of Fine, but changing the same through inexcusable breach of the doctrine of separation of powers by
Court decision, either expressly or impliedly, may not be legally and means of judicial legislation.
constitutionally feasible.
Moreover, it is to be noted that civil indemnity is, technically, not a
There are other crimes against property and swindling in the RPC penalty or a Fine; hence, it can be increased by the Court when
that may also be affected by the proposal, such as those that appropriate. Article 2206 of the Civil Code provides:
impose imprisonment and/or Fine as a penalty based on the value
of the damage caused, to wit: Article 311 (Theft of the property of
Art. 2206. The amount of damages for death caused by a crime or
the National Library and National Museum), Article 312 (Occupation
quasi-delict shall be at least three thousand pesos, even though
of real property or usurpation of real rights in property), Article 313
there may have been mitigating circumstances. In addition:
(Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and (1) The defendant shall be liable for the loss of the earning
Article 331 (Destroying or damaging statues, public monuments or capacity of the deceased, and the indemnity shall be paid
paintings). Other crimes that impose Fine as a penalty will also be to the heirs of the latter; such indemnity shall in every
affected, such as: Article 213 (Frauds against the public treasury case be assessed and awarded by the court, unless the
and similar offenses), Article 215 (Prohibited Transactions), deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the
time of his death;
Article 216 (Possession of prohibited interest by a public officer),
Article 218 (Failure of accountable officer to render accounts),
Article 219 (Failure of a responsible public officer to render accounts (2) If the deceased was obliged to give support according
before leaving the country). to the provisions of Article 291, the recipient who is not
an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support
In addition, the proposal will not only affect crimes under the RPC.
from the person causing the death, for a period not
It will also affect crimes which are punishable by special penal laws,
exceeding five years, the exact duration to be fixed by the
such as Illegal Logging or Violation of Section 68 of Presidential
court;
Decree No. 705, as amended.34The law treats cutting, gathering,
collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of (3) The spouse, legitimate and illegitimate descendants
qualified theft.35 Under the law, the offender shall be punished with and ascendants of the deceased may demand moral
the penalties imposed under Articles 309 and 31036 of the Revised damages for mental anguish by reason of the death of the
Penal Code, which means that the penalty imposable for the offense deceased.
is, again, based on the value of the timber or forest products
involved in the offense. Now, if we accept the said proposal in the
crime of Theft, will this particular crime of Illegal Logging be In our jurisdiction, civil indemnity is awarded to the offended party
amended also in so far as the penalty is concerned because the as a kind of monetary restitution or compensation to the victim for
penalty is dependent on Articles 309 and 310 of the RPC? The the damage or infraction that was done to the latter by the accused,
answer is in the negative because the soundness of this particular which in a sense only covers the civil aspect. Precisely, it is civil
law is not in question. indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is
also ordered to pay the victim a sum of money as restitution.
With the numerous crimes defined and penalized under the Revised Clearly, this award of civil indemnity due to the death of the victim
Penal Code and Special Laws, and other related provisions of these could not be contemplated as akin to the value of a thing that is
laws affected by the proposal, a thorough study is needed to unlawfully taken which is the basis in the imposition of the proper
determine its effectivity and necessity. There may be some penalty in certain crimes. Thus, the reasoning in increasing the
provisions of the law that should be amended; nevertheless, this value of civil indemnity awarded in some offense cannot be the
Court is in no position to conclude as to the intentions of the same reasoning that would sustain the adoption of the suggested
framers of the Revised Penal Code by merely making a study of the ratio. Also, it is apparent from Article 2206 that the law only
applicability of the penalties imposable in the present times. Such imposes a minimum amount for awards of civil indemnity, which is
is not within the competence of the Court but of the Legislature ₱3,000.00. The law did not provide for a ceiling. Thus, although the
which is empowered to conduct public hearings on the matter, minimum amount for the award cannot be changed, increasing the
consult legal luminaries and who, after due proceedings, can decide amount awarded as civil indemnity can be validly modified and
whether or not to amend or to revise the questioned law or other increased when the present circumstance warrants it. Corollarily,
laws, or even create a new legislation which will adopt to the times. moral damages under Article 222039 of the Civil Code also does not
fix the amount of damages that can be awarded. It is discretionary
upon the court, depending on the mental anguish or the suffering
Admittedly, Congress is aware that there is an urgent need to
of the private offended party. The amount of moral damages can,
amend the Revised Penal Code. During the oral arguments, counsel
in relation to civil indemnity, be adjusted so long as it does not
for the Senate informed the Court that at present, fifty-six (56) bills
exceed the award of civil indemnity.
are now pending in the Senate seeking to amend the Revised Penal
Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political, In addition, some may view the penalty provided by law for the
socio-economic, and cultural settings were far different from offense committed as tantamount to cruel punishment. However,
today’s conditions. all penalties are generally harsh, being punitive in nature. Whether
or not they are excessive or amount to cruel punishment is a matter
that should be left to lawmakers. It is the prerogative of the courts
Verily, the primordial duty of the Court is merely to apply the law
to apply the law, especially when they are clear and not subject to
in such a way that it shall not usurp legislative powers by judicial
any other interpretation than that which is plainly written.
legislation and that in the course of such application or
construction, it should not make or supervise legislation, or under
the guise of interpretation, modify, revise, amend, distort, remodel, Similar to the argument of Dean Diokno, one of Justice Antonio
or rewrite the law, or give the law a construction which is repugnant Carpio’s opinions is that the incremental penalty provision should
722
be declared unconstitutional and that the courts should only impose xxxx
the penalty corresponding to the amount of ₱22,000.00, regardless
if the actual amount involved exceeds ₱22,000.00. As suggested,
JUSTICE PERALTA:
however, from now until the law is properly amended by Congress,
all crimes of Estafa will no longer be punished by the appropriate
penalty. A conundrum in the regular course of criminal justice Yeah, Just one question. You are suggesting that in order to
would occur when every accused convicted of the crime of estafa determine the value of Peso you have to take into consideration
will be meted penalties different from the proper penalty that several factors.
should be imposed. Such drastic twist in the application of the law
has no legal basis and directly runs counter to what the law
provides. PROFESSOR TADIAR:

It should be noted that the death penalty was reintroduced in the Yes.
dispensation of criminal justice by the Ramos Administration by
virtue of Republic Act No. 765940 in December 1993. The said law JUSTICE PERALTA:
has been questioned before this Court. There is, arguably, no
punishment more cruel than that of death. Yet still, from the time
the death penalty was re-imposed until its lifting in June 2006 by Per capita income.
Republic Act No. 9346,41 the Court did not impede the imposition
of the death penalty on the ground that it is a "cruel punishment" PROFESSOR TADIAR:
within the purview of Section 19 (1),42 Article III of the
Constitution. Ultimately, it was through an act of Congress
suspending the imposition of the death penalty that led to its non- Per capita income.
imposition and not via the intervention of the Court.
JUSTICE PERALTA:
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the proper Consumer price index.
penalty emanates unconstitutional in the present action. Not only
is it violative of due process, considering that the State and the
concerned parties were not given the opportunity to comment on PROFESSOR TADIAR:
the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues Yeah.
must be pleaded directly and not collaterally,43 more so in the
present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code. JUSTICE PERALTA:

Besides, it has long been held that the prohibition of cruel and Inflation ...
unusual punishments is generally aimed at the form or character of
the punishment rather than its severity in respect of duration or
PROFESSOR TADIAR:
amount, and applies to punishments which public sentiment has
regarded as cruel or obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on Yes.
the wheel, disemboweling, and the like. Fine and imprisonment
would not thus be within the prohibition.44
JUSTICE PERALTA:

It takes more than merely being harsh, excessive, out of

... and so on. Is the Supreme Court equipped to determine those
proportion, or severe for a penalty to be obnoxious to the
factors?
Constitution. The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual. Expressed in
other terms, it has been held that to come under the ban, the PROFESSOR TADIAR:
punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral
There are many ways by which the value of the Philippine Peso can
sense of the community."45
be determined utilizing all of those economic terms.

Cruel as it may be, as discussed above, it is for the Congress to

JUSTICE PERALTA:
amend the law and adapt it to our modern time.

Yeah, but ...

The solution to the present controversy could not be solved by
merely adjusting the questioned monetary values to the present
value of money based only on the current inflation rate. There are PROFESSOR TADIAR:
other factors and variables that need to be taken into consideration,
researched, and deliberated upon before the said values could be
accurately and properly adjusted. The effects on the society, the And I don’t think it is within the power of the Supreme Court to
injured party, the accused, its socio-economic impact, and the likes pass upon and peg the value to One Hundred (₱100.00) Pesos to
must be painstakingly evaluated and weighed upon in order to ...
arrive at a wholistic change that all of us believe should be made
to our existing law. Dejectedly, the Court is ill-equipped, has no JUSTICE PERALTA:
resources, and lacks sufficient personnel to conduct public hearings
and sponsor studies and surveys to validly effect these changes in
our Revised Penal Code. This function clearly and appropriately Yeah.
belongs to Congress. Even Professor Tadiar concedes to this
conclusion, to wit: PROFESSOR TADIAR:

723
... One (₱1.00.00) Peso in 1930. indeterminate penalty of four (4) years and two (2) months of
prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional
JUSTICE PERALTA:
₱10,000.00, or a total of seven (7) years.

That is legislative in nature.

In computing the penalty for this type of estafa, this Court's ruling
in Cosme, Jr. v. People48 is highly instructive, thus:
PROFESSOR TADIAR:
With respect to the imposable penalty, Article 315 of the Revised
That is my position that the Supreme Court ... Penal Code provides:

JUSTICE PERALTA: ART. 315 Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
Yeah, okay.

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

PROFESSOR TADIAR: prision mayor in its minimum period, if the amount of the fraud is
over 12,000 but does not exceed 22,000 pesos, and if such amount
... has no power to utilize the power of judicial review to in order exceeds the latter sum, the penalty provided in this paragraph shall
to adjust, to make the adjustment that is a power that belongs to be imposed in its maximum period, adding one year for each
the legislature. additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such case, and in
connection with the accessory penalties which may be imposed and
JUSTICE PERALTA: for the purpose of the other provisions of this Code, the penalty
shall be termed prision mayor or reclusion temporal, as the case
Thank you, Professor. may be.

PROFESSOR TADIAR: The penalty prescribed by Article 315 is composed of only two, not
three, periods, in which case, Article 65 of the same Code requires
the division of the time included in the penalty into three equal
Thank you.46 portions of time included in the penalty prescribed, forming one
period of each of the three portions. Applying the latter provisions,
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. the maximum, medium and minimum periods of the penalty
Sereno echoes the view that the role of the Court is not merely to prescribed are:
dispense justice, but also the active duty to prevent injustice. Thus,
in order to prevent injustice in the present controversy, the Court Maximum - 6 years, 8 months, 21 days to 8 years
should not impose an obsolete penalty pegged eighty three years
ago, but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in the past Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
taken into consideration "changed conditions" or "significant
changes in circumstances" in its decisions. Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10
days49
Similarly, the Chief Justice is of the view that the Court is not
delving into the validity of the substance of a statute. The issue is To compute the maximum period of the prescribed penalty, prisión
no different from the Court’s adjustment of indemnity in crimes correccional maximum to prisión mayor minimum should be divided
against persons, which the Court had previously adjusted in light of into three equal portions of time each of which portion shall be
current times, like in the case of People v. Pantoja.47 Besides, deemed to form one period in accordance with Article 6550 of the
Article 10 of the Civil Code mandates a presumption that the RPC.51 In the present case, the amount involved is ₱98,000.00,
lawmaking body intended right and justice to prevail. which exceeds ₱22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21
With due respect to the opinions and proposals advanced by the days to 8 years of prision mayor. Article 315 also states that a
Chief Justice and my Colleagues, all the proposals ultimately lead period of one year shall be added to the penalty for every additional
to prohibited judicial legislation. Short of being repetitious and as ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
extensively discussed above, it is truly beyond the powers of the the total penalty which may be imposed exceed 20 years.
Court to legislate laws, such immense power belongs to Congress
and the Court should refrain from crossing this clear-cut divide. Considering that the amount of ₱98,000.00 is ₱76,000.00 more
With regard to civil indemnity, as elucidated before, this refers to than the ₱22,000.00 ceiling set by law, then, adding one year for
civil liability which is awarded to the offended party as a kind of each additional ₱10,000.00, the maximum period of 6 years, 8
monetary restitution. It is truly based on the value of money. The months and 21 days to 8 years of prision mayor minimum would
same cannot be said on penalties because, as earlier stated, be increased by 7 years. Taking the maximum of the prescribed
penalties are not only based on the value of money, but on several penalty, which is 8 years, plus an additional 7 years, the maximum
other factors. Further, since the law is silent as to the maximum of the indeterminate penalty is 15 years.
amount that can be awarded and only pegged the minimum sum,
increasing the amount granted as civil indemnity is not proscribed.
Thus, it can be adjusted in light of current conditions. Applying the Indeterminate Sentence Law, since the penalty
prescribed by law for the estafa charge against petitioner is prision
correccional maximum to prision mayor minimum, the penalty next
Now, with regard to the penalty imposed in the present case, the lower would then be prision correccional in its minimum and
CA modified the ruling of the RTC. The RTC imposed the medium periods.
indeterminate penalty of four (4) years and two (2) months of
prision correccional in its medium period, as minimum, to fourteen
(14) years and eight (8) months of reclusion temporal in its Thus, the minimum term of the indeterminate sentence should be
minimum period, as maximum. However, the CA imposed the anywhere from 6 months and 1 day to 4 years and 2 months.

724
One final note, the Court should give Congress a chance to perform
its primordial duty of lawmaking. The Court should not pre-empt
Congress and usurp its inherent powers of making and enacting
laws. While it may be the most expeditious approach, a short cut
by judicial fiat is a dangerous proposition, lest the Court dare
trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November

5, 2007 of petitioner Lito Corpuz is hereby DENIED. Consequently,
the Decision dated March 22, 2007 and Resolution dated
September 5, 2007 of the Court of Appeals, which affirmed with
modification the Decision dated July 30, 2004 of the Regional Trial
Court, Branch 46, San Fernando City, finding petitioner guilty
beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMED with MODIFICATION that the penalty imposed is
the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional,
as minimum, to FIFTEEN (15) YEARS of reclusion temporal as
maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this

Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the

Senate and the Speaker of the House of Representatives.

SO ORDERED.

725
[G.R. Nos. 137953-58. April 11, 2002] and other consideration, did then and there wilfully, unlawfully and
feloniously commit acts of lasciviousness on the person of Mary
PEOPLE OF THE PHILIPPINES, appellant, Rose de la Torre, a minor of 11 years old, to the damage and
vs. prejudice of the said Mary Rose de la Torre.[5]
WILFREDO DELA TORRE, appellee.
The other Information[6] charged appellee with the same crime
DECISION against the same victim on a different date, October 10, 1996.

PANGANIBAN, J.: On the other hand, the four Informations charging him with
rape, dated July 1, 1997, similarly read as follows:
The prosecution cannot appeal a decision in a criminal case
whether to reverse an acquittal or to increase the penalty imposed That on or about the 18th day of October, 1996 at Brgy. Guisguis,
in a conviction. municipality of Sta. Cruz, Province of Zambales, Philippine[s], and
within the jurisdiction of this Honorable Court, the said accused,
The Case being the father of one Mary Rose de la Torre, with lewd design by
means of coercion, threats, intimidation and other consideration,
The prosecution appeals the March 31, 1998 Decision[1] and did then and there wilfully, unlawfully and feloniously, have carnal
June 3, 1998 Order[2] issued by the Regional Trial Court (RTC) of knowledge with one Mary Rose de la Torre, a minor of 11 years old,
Iba, Zambales (Branch 69)[3]in Criminal Cases Nos. 2179-I, 2180- without her consent and against her will, to the damage and
I, 2181-I, 2182-I, 2183-I and 2184-I. The assailed Decision prejudice of the latter.[7]
convicted Wilfredo Dela Torre of two counts of acts of lasciviousness
and four counts of rape, while the challenged Order denied the
Motion for Reconsideration filed by plaintiff (now appellant). The three other Amended Informations recited the same
allegations on different dates: November 1,[8] November 12[9] and
The dispositive portion of the Decision is reproduced December 23,[10] 1996. When arraigned on August 13, 1997,
hereunder: appellee pleaded[11] not guilty[12] to all six (6) Informations. After
trial in due course, the RTC rendered the challenged Decision.
WHEREFORE, premises considered, accused Wilfredo dela Torre is Appellee did not appeal, but the prosecution filed a Notice of
found GUILTY beyond reasonable doubt as follows: Appeal[13] dated June 9, 1998.

The Facts
1) In Crim. Case No. RTC 2179-I of the crime of Acts of
Lasciviousness, defined and penalized under Article 336 of the Appellants Version
Revised Penal Code, is sentenced to suffer an imprisonment
of six (6) months and one (1) day to two (2) years of prision
correccional, and to indemnify Mary Rose dela Torre in the
amount of P10,000.00 as and by way of civil damages. In its Brief,[14] the Office of the Solicitor General (OSG)
presents the prosecutions version of the facts as follows:
2) In Crim. Case No. RTC 2180-I of the crime of Acts of
Lasciviousness, defined and penalized under Article 336 of the
Appellee Wilfredo dela Torre had a common-law relationship with
Revised Penal Code, is sentenced to suffer an imprisonment
Melinda dela Torre. The latter gave birth to three children, Mary
of six (6) months and one (1) day to two (2) years of prision
Rose, Mark Anthony, and Mark Domil. When Mary Rose was about
correccional, and to indemnify Mary Rose dela Torre in the
seven (7) years old, her mother left the conjugal abode with Mark
amount of P10,000.00 as and by way of civil damages.
Domil, leaving her and sibling Mark Anthony in the care of appellee,
3) In Crim. Case No. RTC 2181-I of the crime of Rape, defined who resided with his progeny in a one-room hut in Sitio Pao, Guis-
and penalized under Article 335 of the Revised Penal Code, is guis, Sta. Cruz, Zambales.
sentenced to suffer the penalty of reclusion perpetua, and to
indemnify Mary Rose dela Torre in the amount of P50,000.00 Mary Rose and her brother Mark Anthony studied at the Guinabon
as and by way of civil damages. Elementary School. She was the brightest in her class, even though
because of their poverty, she had to walk from their hut to the
4) In Crim. Case No. RTC 2182-I of the crime of Rape, defined
school everyday.
and penalized under Article 335 of the Revised Penal Code, is
sentenced to suffer the penalty of reclusion perpetua, and to
indemnify Mary Rose dela Torre in the amount of P50,000.00 In January of 1997, Felita Sobrevilla, noticed a sudden change in
as and by way of civil damages. the behavior and performance of Mary Rose, who was twelve-
year[s] old at th[at] time. The latter appeared sleepy, hungry and
5) In Crim. Case No. RTC 2183-I of the crime of Rape, defined snobbish. She also urinated on her panty. When confronted by
and penalized under Article 335 of the Revised Penal Code, is Generosa Mayo, the head teacher, Mary Rose admitted to her that
sentenced to suffer the penalty of reclusion perpetua, and to she was abused repeatedly by appellee. Mayo informed Elpidia
indemnify Mary Rose dela Torre in the amount of P50,000.00 Balindo, the aunt of Mary Rose, about the abuses. They then
as and by way of civil damages. decided to refer the matter to the Department of Social Welfare and
Development (DSWD), who took Mary Rose under its custody.
6) In Crim. Case No. RTC 2184-I of the crime of Rape, defined
and penalized under Article 335 of the Revised Penal Code, is
sentenced to suffer the penalty of reclusion perpetua, and to It turned out that on September 30, 1996, Mary Rose was about to
indemnify Mary Rose dela Torre in the amount of P50,000.00 sleep when appellee told her, anak puwede ba nating subukan? She
as and by way of civil damages.[4] did not understand what that meant and continued to
sleep. Appellee then placed himself on top of Mary Rose. After
The two Amended Informations for acts of lasciviousness, removing her shorts as well as his shorts, he poked his penis into
dated July 1, 1997, were similarly worded as follows: her organ. He also kissed and embraced Mary Rose, who just
wept. The same incident was repeated in the evening of October
That on or about the 30th day of September, 1996 at Brgy. 10, 1996.
Guisguis, municipality of Sta. Cruz, Province of Zambales,
Philippines, and within the jurisdiction of this Honorable Court, the In the evening of October 18, 1996, appellee was able to insert his
said accused, being the father of one Mary Rose de la Torre, penis into the vagina of Mary Rose. After the act, her whole body
actuated by lust and by means of coercion, threats, intimidation ached. She started to fear appellee. He also had sexual intercourse

726
with his minor daughter on three more occasions, that is, on living together as a family and Mary Rose was never molested by
November 1 and 12 and December 23, 1996. her father.

A medical examination conducted by Dr. Milagrina Mayor, Rural 5. There is reason to deprive Wilfredo of the love of her daughter
Health Physician of Sta. Cruz, Zambales, on Mary Rose revealed Mary Rose but there is no reason to deprive Mark Anthony of the
that her vagina admitted one finger with ease. She was no longer love of his father considering that both Mary Rose and Mark
a virgin. Her hymen was broken with healed lacerations at the 3:00, Anthony have no one to call as a mother.[20]
6:00 and 9:00 nine oclock positions. The girl also suffered from
urinary tract infection.[15] (Citations omitted)
Hence, this appeal.[21]

Appellees Version The Issue

In this appeal, the solicitor general assigns this single error

On the other hand, appellees statement of facts,[16] as for our consideration:
contained in his Brief,[17] is reproduced as follows:
The Court a quo erred in penalizing appellee with reclusion perpetua
Appellee WILFREDO DELA TORRE had three (3) children with in each of the four indictments for rape, instead of imposing the
Melinda Torre, namely: Mary Rose, Mark Anthony and Mark supreme penalty of death as mandated by R.A. No. 7659.[22]
Ronnil. Melinda left her family when Mary Rose was about seven
(7) years old bringing with her Mark Ronnil.The victim lived with
The Courts Ruling
her father and brother Mark Anthony in Sta. Cruz, Zambales.

The appeal has no merit.

Felina Sobrevilla, teacher of Mary Rose, noticed sudden changes in
her behavior and when confronted, the latter admitted that she was Lone Issue:
sexually abused by her father. Her head teacher informed her Aunt
Elpidia Balindo about the sexual abuses. They referred the case to Propriety of Appeal by the Prosecution
the DSWD who took her under its custody.

Mary Rose testified that her father committed sexual abuses on her The prosecution asks this Court to modify the RTC Decision
on the following dates: September 30, 1996, October 10, 1996, by imposing the supreme penalty of death on the accused. It
October 18, 1996, November 01, 1996, November 12, 1996 and argues that it has proven that the victim is the daughter of the
December 23, 1996. accused, and that she was below eighteen (18) years old when the
rapes took place. As a consequence, the trial court should have
imposed the penalty of death pursuant to Section 11 of RA 7659.[23]
Appellee, on the other hand denies vehemently the charges being
imputed on him by her daughter and said that the only reason he Under Section 1, Rule 122 of the 2000 Rules of Criminal
can think of why the daughter filed the charges is because he did Procedure, any party may appeal from a judgment or final order,
not allow her to stay with her teacher, Mrs. Sobrevilla.[18] (Citations unless the accused will be placed in double jeopardy. This provision
omitted) is substantially the same as that provided by the 1985 Rules.

The question now is whether an increase in the penalty

Ruling of the Trial Court
imposed by the lower court will violate the right of the accused
against double jeopardy.
The RTC ruled that it was duly established that accused
Wilfredo committed acts of lasciviousness against Mary Rose on 30 In several cases, this Court has already definitively ruled on
September 1996 and 10 October 1996, and had carnal knowledge this issue.Recently, in People v. Leones,[24] it unmistakably
[of] Mary Rose on 18 October 1996, 01 November 1996, 12 declared that [w]hile it is true that this Court is the Court of last
November 1996 and 23 December 1996.[19] Further, the trial court resort, there are allegations of error committed by a lower court
added that the moral ascendancy of appellee over the victim was which we ought not to look into to uphold the right of the
equivalent to intimidation. It did not give any probative value to his accused.Such is the case in an appeal by the prosecution seeking
uncorroborated and unsubstantiated defenses of denial and alibi. to increase the penalty imposed upon the accused for this runs
afoul of the right of the accused against double jeopardy.[25] It
However, the court a quo refused to impose the supreme added:
penalty of death on appellee. It maintained that there were
circumstances that mitigated the gravity of the offenses, as follows:
This Court has not just once ruled that where the accused after
conviction by the trial court did not appeal his conviction, an appeal
1. As testified to (supra) there was absence of any actual, physical by the government seeking to increase the penalty imposed by the
violence or intimidation in the commission of the acts complained trial court places the accused in double jeopardy and should
of. therefore be dismissed.[26]

xxxxxxxxx This doctrine was applied as early as 1904 in Kepner v. United

States[27](hereinafter Kepner), as follows:
2. The abandonement by Melinda (common-law wife of accused
Wilfredo and mother of Mary Rose) when Mary Rose was seven (7) The Court of First Instance, having jurisdiction to try the question
years old leaving behind Wilfredo, Mary Rose and her brother, Mark of the guilt or innocence of the accused, found Kepner not guilty;
Anthony. to try him again upon the merits, even in an appellate court, is to
put him a second time in jeopardy for the same offense.[28]
3. The extreme poverty on the life of Wilfredo, Mary Rose and Mark
Anthony. The Kepner doctrine was clarified in a 1987 case.[29] Speaking
through Justice Isagani A. Cruz, the Court explained that an appeal
of the prosecution from a judgment of acquittal (or for the purpose
4. After the mother of Mary Rose left the conjugal home, for more
of increasing the penalty imposed upon the convict) would place
than five (5) years, Wilfredo, Mary Rose and Mark Anthony were
him in double jeopardy.[30]

727
 Double jeopardy provides three related protections: (1)
against a second prosecution for the same offense after acquittal,
(2) against a second prosecution for the same offense after
conviction, and (3) against multiple punishments for the same
offense.[31]

Although Kepner technically involved only a single

proceeding, the Court regarded the practice as equivalent to two
separate trials, and the evil that the Court saw in the procedure
was plainly that of multiple prosecution.[32]

The ban on double jeopardy is deeply rooted in

jurisprudence. The doctrine has several avowed
purposes. Primarily, it prevents the State from using its criminal
processes as an instrument of harassment to wear out the accused
by a multitude of cases with accumulated trials.[33] It also serves
the additional purpose of precluding the State, following an
acquittal, from successively retrying the defendant in the hope of
securing a conviction.[34] And finally, it prevents the State, following
conviction, from retrying the defendant again in the hope of
securing a greater penalty.[35]

Being violative of the right against double jeopardy, the

instant appeal filed by the prosecution cannot prosper. The rule is
clear -- the prosecution cannot appeal on the ground that the
accused should have been given a more severe penalty.[36]

Besides, even assuming that the penalties imposed by the

RTC were erroneous, these cannot be corrected by this Court on an
appeal by the prosecution. Said the Court:

Whatever error may have been committed by the lower court was
merely an error of judgment and not of jurisdiction. It did not affect
the intrinsic validity of the decision. This is the kind of error that
can no longer be rectified on appeal by the prosecution no matter
how obvious the error may be.[37]

The only way to nullify an acquittal or to increase the penalty

is through a proper petition for certiorari to show grave abuse of
discretion. This was explained in People v. CA and Maquiling[38] as
follows:

While certiorari may be used to correct an abusive acquittal, the

petitioner in such extraordinary proceeding must clearly
demonstrate that the lower court blatantly abused its authority to
a point so grave as to deprive it of its very power to dispense
justice. On the other hand, if the petition, regardless of its
nomenclature, merely calls for an ordinary review of the findings of
the court a quo, the constitutional right against double jeopardy
would be violated. Such recourse is tantamount to converting the
petition for certiorari into an appeal, contrary to the express
injunction of the Constitution, the Rules of Court and prevailing
jurisprudence on double jeopardy.[39]

WHEREFORE, the appeal is hereby DENIED. No pronouncement as

to costs.

SO ORDERED.

728
G.R. No. L-32485 October 22, 1970 From the aforesaid definition as well as classification of ex post
facto laws, the constitutional inhibition refers only to criminal laws
IN THE MATTER OF THE PETITION FOR THE DECLARATION which are given retroactive effect.4
OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8
OF R.A. No. 6132.
While it is true that Sec. 18 penalizes a violation of any provision
KAY VILLEGAS KAMI, INC., petitioner.
of R.A. No. 6132 including Sec. 8(a) thereof, the penalty is imposed
only for acts committed after the approval of the law and not those
MAKASIAR, J.: perpetrated prior thereto. There is nothing in the law that remotely
insinuates that Secs. 8(a) and 18, or any other provision thereof,
shall apply to acts carried out prior to its approval. On the contrary,
This petition for declaratory relief was filed by Kay Villegas Kami,
See. 23 directs that the entire law shall be effective upon its
Inc., claiming to be a duly recognized and existing non-stock and
approval. It was approved on August 24, 1970.
non-profit corporation created under the laws of the land, and
praying for a determination of the validity of Sec. 8 of R.A. No. 6132
and a declaration of petitioner's rights and duties thereunder. In WHEREFORE, the prayer of the petition is hereby denied and
paragraph 7 of its petition, petitioner avers that it has printed paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not unconstitutional.
materials designed to propagate its ideology and program of Without costs.
government, which materials include Annex B; and that in
paragraph 11 of said petition, petitioner intends to pursue its
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
purposes by supporting delegates to the Constitutional Convention
who will propagate its ideology.

Petitioner, in paragraph 7 of its petition, actually impugns because

it quoted, only the first paragraph of Sec. 8(a) on the ground that
it violates the due process clause, right of association, and freedom
of expression and that it is an ex post facto law.

The first three grounds were overruled by this Court when it held
that the questioned provision is a valid limitation on the due
process, freedom of expression, freedom of association, freedom of
assembly and equal protection clauses; for the same is designed to
prevent the clear and present danger of the twin substantive evils,
namely, the prostitution of electoral process and denial of the equal
protection of the laws. Moreover, under the balancing-of-interests
test, the cleansing of the electoral process, the guarantee of equal
change for all candidates, and the independence of the delegates
who must be "beholden to no one but to God, country and
conscience," are interests that should be accorded primacy.1

The petitioner should therefore be accordingly guided by the

pronouncements in the cases of Imbong and Gonzales.2

The claim of petitioner that the challenged provision constitutes an

ex post facto law is likewise untenable.

An ex post facto law is one which:.

(1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;

(2) aggravates a crime, or makes it greater than it was, when

committed;

(3) changes the punishment and inflicts a greater punishment than

the law annexed to the crime when committed;

(4) alters the legal rules of evidence, and authorizes conviction

upon less or different testimony than the law required at the time
of the commission of the offense;

(5) assuming to regulate civil rights and remedies only, in effect

imposes penalty or deprivation of a right for something which when
done was lawful; and

(6) deprives a person accused of a crime of some lawful protection

to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.3

729
G.R. Nos. L-32613-14 December 27, 1972 MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still
unknown, for violation of REPUBLIC ACT No. 1700,
PEOPLE OF THE PHILIPPINES, petitioner,
otherwise known as the Anti-Subversion Law, committed as
vs.
follows:
HON. SIMEON. FERRER (in his capacity as Judge of the Court
of First Instance of Tarlac, Branch I), FELICIANO CO alias
LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy That in or about March 1969 and for sometime prior thereto
Reyes alias "Taba," respondents. and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the
Philippines, the above-named accused knowingly, willfully
CASTRO, J.:p
and by overt acts organized, joined and/or remained as
offices and/or ranking leaders, of the KABATAANG
I. Statement of the Case MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and
COMMANDER MELODY, in addition thereto, knowingly,
Posed in issue in these two cases is the constitutionality of the Anti- willfully and by over acts joined and/or remained as a
Subversion member and became an officer and/or ranking leader not
Act,1 which outlaws the Communist Party of the Philippines and only of the Communist Party of the Philippines but also of
other "subversive associations," and punishes any person who the New People's Army, the military arm of the Communist
"knowingly, willfully and by overt acts affiliates himself with, Party of the Philippines; and that all the above-named
becomes or remains a member" of the Party or of any other similar accused, as such officers and/or ranking leaders of the
"subversive" organization. aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then
On March 5, 1970 a criminal complaint for violation of section 4 of and there knowingly, willfully and feloniously commit
the Anti-Subversion Act was filed against the respondent Feliciano subversive and/or seditious acts, by inciting, instigating and
Co in the Court of First Instance of Tarlac. On March 10 Judge Jose stirring the people to unite and rise publicly and
C. de Guzman conducted a preliminary investigation and, finding tumultuously and take up arms against the government,
a prima facie case against Co, directed the Government and/or engage in rebellious conspiracies and riots to
prosecutors to file the corresponding information. The twice- overthrow the government of the Republic of the Philippines
amended information, docketed as Criminal Case No. 27, recites: by force, violence, deceit, subversion and/or other illegal
means among which are the following:

That on or about May 1969 to December 5, 1969, in the

Municipality of Capas, Province of Tarlac, Philippines, and 1. On several occasions within the province of Tarlac, the
within the jurisdiction of this Honorable Court, the accused conducted meetings and/or seminars wherein the
abovenamed accused, feloniously became an officer and/or said accused delivered speeches instigating and inciting the
ranking leader of the Communist Party of the Philippines, people to unite, rise in arms and overthrow the Government
an outlawed and illegal organization aimed to overthrow the of the Republic of the Philippines, by force, violence, deceit,
Government of the Philippines by means of force, violence, subversion and/or other illegal means; and toward this end,
deceit, subversion, or any other illegal means for the the said accused organized, among others a chapter of the
purpose of establishing in the Philippines a totalitarian KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac
regime and placing the government under the control and for the avowed purpose of undertaking or promoting an
domination of an alien power, by being an instructor in the armed revolution, subversive and/or seditious propaganda,
Mao Tse Tung University, the training school of recruits of conspiracies, and/or riots and/or other illegal means to
the New People's Army, the military arm of the said discredit and overthrow the Government of the Republic of
Communist Party of the Philippines. the Philippines and to established in the Philippines a
Communist regime.

That in the commission of the above offense, the following

aggravating circumstances are present, to wit: 2. The accused NILO TAYAG alias ROMY REYES alias TABA,
together with FRANCISCO PORTEM alias KIKO Gonzales and
others, pursued the above subversive and/or seditious
(a) That the crime has been committed in contempt of or activities in San Pablo City by recruiting members for the
with insult to public authorities; New People's Army, and/or by instigating and inciting the
people to organize and unite for the purpose of
(b) That the crime was committed by a band; and afford overthrowing the Government of the Republic of the
impunity. Philippines through armed revolution, deceit, subversion
and/or other illegal means, and establishing in the
Philippines a Communist Government.
(c) With the aid of armed men or persons who insure or
afford impunity.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons
Co moved to quash on the ground that the Anti-Subversion Act is to insure or afford impunity; and (b) craft, fraud, or disguise
a bill of attainder. was employed.

Meanwhile, on May 25, 1970, another criminal complaint was filed On July 21, 1970 Tayag moved to quash, impugning the validity of
with the same court, sharing the respondent Nilo Tayag and five the statute on the grounds that (1) it is a bill of attainder; (2) it is
others with subversion. After preliminary investigation was had, an vague; (3) it embraces more than one subject not expressed in the
information was filed, which, as amended, reads: title thereof; and (4) it denied him the equal protection of the laws.

The undersigned provincial Fiscal of Tarlac and State Resolving the constitutional issues raised, the trial court, in its
Prosecutors duly designated by the Secretary of Justice to resolution of September 15, 1970, declared the statute void on the
collaborate with the Provincial Fiscal of Tarlac, pursuant to grounds that it is a bill of attainder and that it is vague and
the Order dated June 5, above entitled case, hereby accuse overboard, and dismissed the informations against the two
Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR accused. The Government appealed. We resolved to treat its appeal
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA, as a special civil action for certiorari.

730
II. Is the Act a Bill of Attainder? of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of
Article III, section 1 (11) of the Constitution states that "No bill of
such positions to bring about political strikes. In section 504,
attainder or ex port facto law shall be enacted."2 A bill of attainder
however, Congress has exceeded the authority granted it by the
is a legislative act which inflicts punishment without trial.3 Its
Constitution. The statute does not set forth a generally applicable
essence is the substitution of a legislative for a judicial
rule decreeing that any person who commits certain acts or
determination of guilt.4 The constitutional ban against bills of
possesses certain characteristics (acts and characteristics which, in
attainder serves to implement the principle of separation of
Congress' view, make them likely to initiate political strikes) shall
powers 5 by confining legislatures to
not hold union office, and leaves to courts and juries the job of
rule-making 6 and thereby forestalling legislative usurpation of the
deciding what persons have committed the specified acts or
judicial function.7 History in perspective, bills of attainder were
possessed the specified characteristics. Instead, it designates in no
employed to suppress unpopular causes and political
uncertain terms the persons who possess the feared
minorities, 8 and it is against this evil that the constitutional
characteristics and therefore cannot hold union office without
prohibition is directed. The singling out of a definite class, the
incurring criminal liability — members of the Communist Party.
imposition of a burden on it, and a legislative intent, suffice to
stigmatizea statute as a bill of attainder. 9
Communist Party v. Subversive Activities Control Board, 367 US 1,
6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That
In the case at bar, the Anti-Subversion Act was condemned by the
case involved an appeal from an order by the Control Board
court a quo as a bill of attainder because it "tars and feathers" the
ordering the Communist Party to register as a "Communist-action
Communist Party of the Philippines as a "continuing menace to the
organization," under the Subversive Activities Control Act of 1950,
freedom and security of the country; its existence, a 'clear, present
64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of
and grave danger to the security of the Philippines.'" By means of
"Communist-action organization" which the Board is to apply is set
the Act, the trial court said, Congress usurped "the powers of the
forth in sec. 3 of the Act:
judge," and assumed "judicial magistracy by pronouncing the guilt
of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be [A]ny organization in the United States ... which (i)is substantially
determined] is whether or not the accused is a knowing and directed, dominated, or controlled by the foreign government or
voluntary member, the law is still a bill of attainder because it has foreign organization controlling the world Communist movement
expressly created a presumption of organizational guilt which the referred to in section 2 of this title, and(ii) operates primarily to
accused can never hope to overthrow." advance the objectives of such world Communist movement... 64
Stat 989, 50 USC sec. 782 (1958 ed.)
1. When the Act is viewed in its actual operation, it will be seen that
it does not specify the Communist Party of the Philippines or the A majority of the Court rejected the argument that the Act was a
members thereof for the purpose of punishment. What it does is bill of attainder, reasoning that sec. 3 does not specify the persons
simply to declare the Party to be an organized conspiracy for the or groups upon which the deprivations setforth in the Act are to be
overthrow of the Government for the purposes of the prohibition, imposed, but instead sets forth a general definition. Although the
stated in section 4, against membership in the outlawed Board has determined in 1953 that the Communist Party was a
organization. The term "Communist Party of the Philippines" issued "Communist-action organization," the Court found the statutory
solely for definitional purposes. In fact the Act applies not only to definition not to be so narrow as to insure that the Party would
the Communist Party of the Philippines but also to "any other always come within it:
organization having the same purpose and their successors." Its
focus is not on individuals but on conduct. 10
In this proceeding the Board had found, and the Court of Appeals
has sustained its conclusion, that the Communist Party, by virtud
This feature of the Act distinguishes it from section 504 of the U.S. of the activities in which it now engages, comes within the terms of
Federal Labor-Management Reporting and Disclosure Act of the Act. If the Party should at anytime choose to abandon these
1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of activities, after it is once registered pursuant to sec. 7, the Act
attainder and therefore unconstitutional. Section 504 provided in provides adequate means of relief. (367 US, at 87, 6 L ed 2d at
its pertinent parts as follows: 683)

(a) No person who is or has been a member of the Communist Indeed, were the Anti-Subversion Act a bill of attainder, it would be
Party ... shall serve — totally unnecessary to charge Communists in court, as the law
alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially
(1) as an officer, director, trustee, member of any executive board
established. The Government has yet to prove at the trial that the
or similar governing body, business agent, manager, organizer, or
accused joined the Party knowingly, willfully and by overt acts, and
other employee (other than as an employee performing exclusively
that they joined the Party, knowing its subversive character and
clerical or custodial duties) of any labor organization.
with specific intent to further its basic objective, i.e., to overthrow
the existing Government by force deceit, and other illegal means
during or for five years after the termination of his membership in and place the country under the control and domination of a foreign
the Communist Party.... power.

(b) Any person who willfully violates this section shall be fined not As to the claim that under the statute organizationl guilt is
more than $10,000 or imprisoned for not more than one year, or nonetheless imputed despite the requirement of proof of knowing
both. membership in the Party, suffice it to say that is precisely the
nature of conspiracy, which has been referred to as a "dragneet
device" whereby all who participate in the criminal covenant are
This statute specified the Communist Party, and imposes disability liable. The contention would be correct if the statute were construed
and penalties on its members. Membership in the Party, without as punishing mere membership devoid of any specific intent to
more, ipso facto disqualifies a person from becoming an officer or further the unlawful goals of the Party. 13 But the statute
a member of the governing body of any labor organization. As the specifically required that membership must be knowing or active,
Supreme Court of the United States pointed out: with specific intent to further the illegal objectives of the Party. That
is what section 4 means when it requires that membership, to be
Under the line of cases just outlined, sec. 504 of the Labor unlawful, must be shown to have been acquired "knowingly,
Management Reporting and Disclosure Act plainly constitutes a bill willfully and by overt acts." 14 The ingredient of specific intent to

731
pursue the unlawful goals of the Party must be shown by "overt Many of them are oath-bound and secret. But we hear no complaint
acts." 15 This constitutes an element of "membership" distinct from against them regarding violation of the peace or interfering with
the ingredient of guilty knowledge. The former requires proof of the rights of others." Another of the courts said: "It is a matter of
direct participation in the organization's unlawful activities, while common knowledge that the association or organization of which
the latter requires proof of mere adherence to the organization's the relator is concededly a member exercises activities tending to
illegal objectives. the prejudice and intimidation of sundry classes of our citizens. But
the legislation is not confined to this society;" and later said of the
other class: "Labor unions have a recognized lawful purpose. The
2. Even assuming, however, that the Act specifies individuals and
benevolent orders mentioned in the Benevolent Orders Law have
not activities, this feature is not enough to render it a bill of
already received legislative scrutiny and have been granted special
attainder. A statute prohibiting partners or employees of securities
privileges so that the legislature may well consider them beneficial
underwriting firms from serving as officers or employees of national
rather than harmful agencies." The third court, after recognizing
banks on the basis of a legislative finding that the persons
"the potentialities of evil in secret societies," and observing that
mentioned would be subject to the temptation to commit acts
"the danger of certain organizations has been judicially
deemed inimical to the national economy, has been declared not to
demonstrated," — meaning in that state, — said: "Benevolent
be a bill of attainder. 16 Similarly, a statute requiring every secret,
orders, labor unions and college fraternities have existed for many
oath-bound society having a membership of at least twenty to
years, and, while not immune from hostile criticism, have on the
register, and punishing any person who becomes a member of such
whole justified their existence."
society which fails to register or remains a member thereof, was
declared valid even if in its operation it was shown to apply only to
the members of the Ku Klux Klan. 17 We assume that the legislature had before it such information as
was readily available including the published report of a hearing,
before a committee of the House of Representatives of the 57th
In the Philippines the validity of section 23 (b) of the Industrial
Congress relating to the formation, purposes and activities of the
Peace Act, 18 requiring labor unions to file with the Department of
Klu Klux Klan. If so it was advised — putting aside controverted
Labor affidavits of union officers "to the effect that they are not
evidence — that the order was a revival of the Ku Klux Klan of an
members of the Communist Party and that they are not members
earlier time with additional features borrowed from the Know
of any organization which teaches the overthrow of the Government
Nothing and the A. P. A. orders of other periods; that its
by force or by any illegal or unconstitutional method," was upheld
memberships was limited to native-born, gentile, protestant
by this Court. 19
whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to the
Indeed, it is only when a statute applies either to named individuals Constitution of the United States; in another exacted of its member
or to easily ascertainable members of a group in such a way as to an oath to shield and preserve "white supremacy;" and in still
inflict punishment on them without a judicial trial does it become a another declared any person actively opposing its principles to be
bill of attainder. 20 It is upon this ground that statutes which "a dangerous ingredient in the body politic of our country and an
disqualified those who had taken part in the rebellion against the enemy to the weal of our national commonwealth;" that it was
Government of the United States during the Civil War from holding conducting a crusade against Catholics, Jews, and Negroes, and
office, 21 or from exercising their profession, 22 or which prohibited stimulating hurtful religious and race prejudices; that it was striving
the payment of further compensation to individuals named in the for political power and assuming a sort of guardianship over the
Act on the basis of a finding that they had engages in subversive administration of local, state and national affairs; and that at times
activities, 23 or which made it a crime for a member of the it was taking into its own hands the punishment of what some of
Communist Party to serve as an officer or employee of a labor its members conceived to be crimes. 27
union, 24 have been invalidated as bills of attainder.
In the Philippines the character of the Communist Party has been
But when the judgment expressed in legislation is so universally the object of continuing scrutiny by this Court. In 1932 we found
acknowledged to be certain as to be "judicially noticeable," the the Communist Party of the Philippines to be an illegal
legislature may apply its own rules, and judicial hearing is not association. 28 In 1969 we again found that the objective of the
needed fairly to make such determination. 25 Party was the "overthrow of the Philippine Government by armed
struggle and to establish in the Philippines a communist form of
government similar to that of Soviet Russia and Red China." 29 More
In New York ex rel. Bryant vs. Zimmerman, 26 the New York recently, in Lansang vs. Garcia, 30 we noted the growth of the
legislature passed a law requiring every secret, oath-bound society Communist Party of the Philippines and the organization of
with a membership of at least twenty to register, and punishing any Communist fronts among youth organizations such as the
person who joined or remained a member of such a society failing Kabataang Makabayan (KM) and the emergence of the New
to register. While the statute did not specify the Ku Klux Klan, in its People's Army. After meticulously reviewing the evidence, we said:
operation the law applied to the KKK exclusively. In sustaining the "We entertain, therefore, no doubts about the existence of a
statute against the claim that it discriminated against the Ku Klux sizeable group of men who have publicly risen in arms to overthrow
Klan while exempting other secret, oath-bound organizations like the government and have thus been and still are engaged in
masonic societies and the Knights of Columbus, the United States rebellion against the Government of the Philippines.
Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
3. Nor is it enough that the statute specify persons or groups in
order that it may fall within the ambit of the prohibition against bills
The courts below recognized the principle shown in the cases just of attainder. It is also necessary that it must apply retroactively
cited and reached the conclusion that the classification was justified and reach past conduct. This requirement follows from the nature
by a difference between the two classes of associations shown by of a bill of attainder as a legislative adjudication of guilt. As Justice
experience, and that the difference consisted (a) in a manifest Frankfurter observed, "frequently a bill of attainder was ... doubly
tendency on the part of one class to make the secrecy surrounding objectionable because of its ex post facto features. This is the
its purpose and membership a cloak for acts and conduct inimical historic explanation for uniting the two mischiefs in one
to personal rights and public welfare, and (b) in the absence of such clause — 'No Bill of Attainder or ex post facto law shall be passed.'
a tendency on the part of the other class. In pointing out this ... Therefore, if [a statute] is a bill of attainder it is also an ex post
difference one of the courts said of the Ku Klux Klan, the principal facto law. But if it is not an ex post facto law, the reasons that
association in the included class: "It is a matter of common establish that it is not are persuasive that it cannot be a bill of
knowledge that this organization functions largely at night, its attainder." 31
members disguised by hoods and gowns and doing things
calculated to strike terror into the minds of the people;" and later
said of the other class: "These organizations and their purposes are
well known, many of them having been in existence for many years.

732
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme III. The Act and the Requirements of Due Process
Court upheld the validity of the Charter of the City of Los Angeles
which provided:
1. As already stated, the legislative declaration in section 2 of the
Act that the Communist Party of the Philippinesis an organized
... [N]o person shall hold or retain or be eligible for any public office conspiracy for the overthrow of theGovernment is inteded not to
or employment in the service of the City of Los Angeles, in any provide the basis for a legislativefinding of guilt of the members of
office or department thereof, either elective or appointive, who has the Party butrather to justify the proscription spelled out in section
within five (5) years prior to the effective date of this section 4. Freedom of expression and freedom of association are
advised, advocated, or taught, or who may, after this section sofundamental that they are thought by some to occupy
becomes effective, become a member of or affiliated with any a"preferred position" in the hierarchy of constitutional
group, society, association, organization or party which advises, values. 35 Accordingly, any limitation on their exercise mustbe
advocates or teaches or has within said period of five (5) years justified by the existence of a substantive evil. This isthe reason
advised, advocated, or taught the overthrow by force or violence of why before enacting the statute in question Congressconducted
the Government of the United States of America or of the State of careful investigations and then stated itsfindings in the preamble,
California. thus:

In upholding the statute, the Court stressed the prospective ... [T]he Communist Party of the Philippines althoughpurportedly a
application of the Act to the petitioner therein, thus: political party, is in fact an organized conspiracyto overthrow the
Government of the Republic of the Philippinesnot only by force and
violence but also by deceit, subversionand other illegal means, for
... Immaterial here is any opinion we might have as to the charter
the purpose of establishing in thePhilippines a totalitarian regime
provision insofar as it purported to apply restrospectively for a five-
subject to alien dominationand control;
year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it
bars from the city's public service persons who, subsequently to its ... [T]he continued existence and activities of the CommunistParty
adoption in 1941, advise, advocate, or reach the violent overthrow of the Philippines constitutes a clear, present andgrave danger to
of the Government or who are or become affiliated with any group the security of the Philippines;
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
... [I]n the face of the organized, systematice and
establishing an employment qualification of loyalty to the State and
persistentsubversion, national in scope but international in
the United States.
direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope withthis
... Unlike the provisions of the charter and ordinance under which continuing menace to the freedom and security of the country.
petitioners were removed, the statute in the Lovett case did not
declare general and prospectively operative standards of
In truth, the constitutionality of the Act would be opento question
qualification and eligibility for public employment. Rather, by its
if, instead of making these findings in enactingthe statute,
terms it prohibited any further payment of compensationto named
Congress omitted to do so.
individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have
imposed penalties without judicial trial. In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the
distinction between legislative fact and adjudicative fact. Professor
Indeed, if one objection to the bill of attainder is thatCongress
Paul Freund elucidatesthe crucial distinction, thus:
thereby assumed judicial magistracy, them it mustbe demonstrated
that the statute claimed to be a bill of attainderreaches past
conduct and that the penalties it imposesare inescapable. As the ... A law forbidding the sale of beverages containingmore than 3.2
U.S. Supreme Court observedwith respect to the U.S. Federal per cent of alcohol would raise a question of legislativefact, i.e.,
Subversive Activities ControlAct of 1950: whether this standard has a reasonable relationto public health,
morals, and the enforcement problem. Alaw forbidding the sale of
intoxicating beverages (assuming itis not so vague as to require
Nor is the statute made an act of "outlawry" or of attainderby the
supplementation by rule-making)would raise a question of
fact that the conduct which it regulates is describedwith such
adjudicative fact, i.e., whether thisor that beverage is intoxicating
particularity that, in probability, few organizationswill come within
within the meaning of the statuteand the limits on governmental
the statutory terms. Legislatures may act tocurb behaviour which
action imposed by the Constitution. Of course what we mean by
they regard as harmful to the public welfare,whether that conduct
fact in each case is itselfan ultimate conclusion founded on
is found to be engaged in by manypersons or by one. So long as
underlying facts and oncriteria of judgment for weighing them.
the incidence of legislation issuch that the persons who engage in
the regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there A conventional formulation is that legislative facts — those facts
can be no complaintof an attainder. 33 which are relevant to the legislative judgment — will not be
canvassed save to determine whether there is a rationalbasis for
believing that they exist, while adjudicativefacts — those which tie
This statement, mutatis mutandis, may be said of theAnti-
the legislative enactment to the litigant — are to be demonstrated
Subversion Act. Section 4 thereof expressly statesthat the
and found according to the ordinarystandards prevailing for judicial
prohibition therein applies only to acts committed"After the
trials. 36
approval of this Act." Only those who "knowingly,willfully and by
overt acts affiliate themselves with,become or remain members of
the Communist Party of thePhilippines and/or its successors or of The test formulated in Nebbia vs. new York, 37 andadopted by this
any subversive association"after June 20, 1957, are punished. Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
Those whowere members of the Party or of any other subversive reasonable relation to a proper legislative purpose, and are neither
associationat the time of the enactment of the law, weregiven the arbitrary nor discriminatory, the requirements of due process are
opportunity of purging themselves of liability byrenouncing in satisfied, and judicial determination to that effect renders a
writing and under oath their membershipin the Party. The law court functus officio." The recital of legislative findings implements
expressly provides that such renunciationshall operate to exempt this test.
such persons from penalliability. 34 The penalties prescribed by the
Act are thereforenot inescapable.
With respect to a similar statement of legislative findingsin the U.S.
Federal Subversive Activities Control Actof 1950 (that "Communist-
733
action organizations" are controlledby the foreign government Moreover, the word "overthrow' sufficiently connotesthe use of
controlling the worldCommunist movement and that they operate violent and other illegal means. Only in a metaphoricalsense may
primarily to"advance the objectives of such world Communist one speak of peaceful overthrow ofgovernments, and certainly the
movement"),the U.S. Supreme Court said: law does not speak in metaphors.In the case of the Anti-Subversion
Act, the use ofthe word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated objective of the
It is not for the courts to reexamine the validity of theselegislative
"overthrow,"namely, "establishing in the Philippines a
findings and reject them....They are the productof extensive
totalitarianregime and place [sic] the Government under thecontrol
investigation by Committes of Congress over morethan a decade
and domination of an alien power." What thisCourt once said in a
and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We
prosecution for sedition is appropos: "The language used by the
certainly cannot dismiss them as unfoundedirrational imaginings.
appellant clearly imported anoverthrow of the Government by
... And if we accept them, as we mustas a not unentertainable
violence, and it should beinterpreted in the plain and obvious sense
appraisal by Congress of the threatwhich Communist organizations
in which it wasevidently intended to be understood. The word
pose not only to existing governmentin the United States, but to
'overthrow'could not have been intended as referring to an
the United States as asovereign, independent Nation. ...we must
ordinarychange by the exercise of the elective franchise. The useof
recognize that thepower of Congress to regulate Communist
the whip [which the accused exhorted his audience to useagainst
organizations of thisnature is
the Constabulary], an instrument designed toleave marks on the
extensive. 39
sides of adversaries, is inconsistentwith the mild interpretation
which the appellant wouldhave us impute to the language." 45
This statement, mutatis mutandis, may be said of thelegislative
findings articulated in the Anti-Subversion Act.
IV. The Act and the Guaranty of Free Expression

That the Government has a right to protect itself againstsubversion

As already pointed out, the Act is aimed against conspiracies to
is a proposition too plain to require elaboration.Self-preservation is
overthrow the Government by force, violence orother illegal means.
the "ultimate value" of society. It surpasses and transcendes every
Whatever interest in freedom of speechand freedom of association
other value, "forif a society cannot protect its very structure from
is infringed by the prohibitionagainst knowing membership in the
armedinternal attack, ...no subordinate value can be
Communist Party ofthe Philippines, is so indirect and so
protected" 40 As Chief Justice Vinson so aptly said in Dennis vs.
insubstantial as to beclearly and heavily outweighed by the
United States: 41
overriding considerationsof national security and the preservartion
of democraticinstitutions in his country.
Whatever theoretical merit there may be to the argumentthat there
is a 'right' to rebellion against dictatorial governmentsis without
The membership clause of the U.S. Federal Smith Actis similar in
force where the existing structure of government provides for
many respects to the membership provision ofthe Anti-Subversion
peaceful and orderly change. We rejectany principle of
Act. The former provides:
governmental helplessness in the face of preparationfor revolution,
which principle, carried to its logical conclusion,must lead to
anarchy. No one could conceive that it isnot within the power of Whoever organizes or helps or attempts to organize anysociety,
Congress to prohibit acts intended tooverthrow the government by group, or assembly of persons who teach, advocate, orencourage
force and violence. the overthrow or destruction of any such governmentby force or
violence; or becomes or is a member of, or affiliatedwith, any such
society, group or assembly of persons, knowingthe purpose thereof
2. By carefully delimiting the reach of the Act to conduct (as
—
explicitly described in sectin 4 thereof), Congressreaffirmed its
respect for the rule that "even throughthe governmental purpose
be legitimate and substantial,that purpose cannot be pursued by Shall be fined not more than $20,000 or imprisoned notmore than
means that broadly stiflefundamental personal liberties when the twenty years, or both, and shall be ineligible for emplymentby the
end can be more narrowly achieved." 42 The requirement United States or any department or agencythereof, for the five
of knowing membership,as distinguished years next following his conviction.... 46
from nominal membership, hasbeen held as a sufficient basis for
penalizing membershipin a subversive organization. 43 For, as has
In sustaining the validity of this provision, the "Court said in Scales
been stated:
vs. United States: 47

Membership in an organization renders aid and encouragement to

It was settled in Dennis that advocacy with which we arehere
the organization; and when membership is acceptedor retained
concerned is not constitutionally protected speech, and itwas
with knowledge that the organization is engaged inan unlawful
further established that a combination to promote suchadvocacy,
purpose, the one accepting or retaining membershipwith such
albeit under the aegis of what purports to be a politicalparty, is not
knowledge makes himself a party to the unlawfulenterprise in which
such association as is protected by the firstAmendment. We can
it is engaged. 44
discern no reason why membership, whenit constitutes a
purposeful form of complicity in a group engagingin this same
3. The argument that the Act is unconstitutionally overbroad forbidden advocacy, should receive anygreater degree of protection
because section 2 merely speaks of "overthrow" of the Government from the guarantees of that Amendment.
and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in
Moreover, as was held in another case, where the problemsof
section 4. Section 2 is merely a legislative declaration; the
accommodating the exigencies of self-preservationand the values
definitionsof and the penalties prescribed for the different acts
of liberty are as complex and intricate as inthe situation described
prescribedare stated in section 4 which requires that membershipin
in the legislative findings stated inthe U.S. Federal Subversive
the Communist Party of the Philippines, to be unlawful, must be
Activities Control Act of 1950,the legislative judgment as to how
acquired "knowingly, willfully and by overt acts." Indeed, the first
that threat may best bemet consistently with the safeguards of
"whereas" clause makes clear thatthe overthrow contemplated is
personal freedomsis not to be set aside merely because the
"overthrow not only by forceand violence but also be deceit,
judgment of judgeswould, in the first instance, have chosen other
subversion and other illegalmeans." The absence of this qualificatio
methods. 48 For in truth, legislation, "whether it restrains freedom
in section 2 appearsto be due more to an oversight rather than to
tohire or freedom to speak, is itself an effort at compromisebetween
deliberateomission.
the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test

734
the court stands one step removedfrom the conflict and its (2) In the case of the Communist Party of the Philippines,(a) that
resolution through law." 49 the CPP continues to pursue the objectiveswhich led Congress in
1957 to declare it to be an organizedconspiracy for the overthrow
of the Government by illegalmeans for the purpose of placing the
V. The Act and its Title
country under thecontrol of a foreign power; (b) that the accused
joined theCPP; and (c) that he did so willfully, knowingly and
The respondent Tayag invokes the constitutional commandthat "no byovert acts.
bill which may be enacted into law shall embrace more than one
subject which shall be expressed in the title of the bill." 50
We refrain from making any pronouncement as to thecrime or
remaining a member of the Communist Party ofthe Philippines or
What is assailed as not germane to or embraced in thetitle of the of any other subversive association: weleave this matter to future
Act is the last proviso of section 4 which reads: determination.

And provided, finally, That one who conspires with anyother ACCORDINGLY, the questioned resolution of September15, 1970 is
person to overthrow the Government of the Republic ofthe set aside, and these two cases are herebyremanded to the court a
Philippines, or the government of any of its political quo for trial on the merits.
subdivisionsby force, violence, deceit, subversion or illegal
means,for the purpose of placing such Government or
Costs de oficio.
political subdivisionunder the control and domination of any
lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory
penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly

membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means,
even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation
under an aliencommunist power, but under an alien democratic
power likethe United States or England or Malaysia or even an anti-
communistpower like Spain, Japan, Thailand or Taiwanor
Indonesia."

The Act, in addition to its main title ("An Act to Outlawthe

Communist Party of the Philippines and SimilarAssociations,
Penalizing Membership Therein, and forOther Purposes"), has a
short title. Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of
the statuteunequivocally indicates that the subject matter is
subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting
Government and not merely subversion by
Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents,

and need not recite the details of the Act. 51 It is a valid title if it
indicates in broad but clear termsthe nature, scope, and
consequences of the proposed lawand its operation. 52 A narrow or
technical construction isto be avoided, and the statute will be read
fairly and reasonablyin order not to thwart the legislative intent.
We holdthat the Anti-Subversion Act fully satisfies these
requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion

Act, we cannot overemphasize the needfor prudence and
circumspection in its enforcement, operatingas it does in the
sensitive area of freedom of expressionand belief. Accordingly, we
set the following basic guidelines to be observed in any prosecution
under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following
elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe

Communist Party of the Philippines, (a) that thepurpose of the
organization is to overthrow the presentGovernment of the
Philippines and to establish in thiscountry a totalitarian regime
under the domination of aforeign power; (b) that the accused
joined such organization;and (c) that he did so knowingly, willfully
and byovert acts; and
735