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Rubi vs Provincial Board of Mindoro

Constitutional Law : Article VI, Sec. 1(Legislative Power; Non-Delegation)


G.R. No. L-14078; March 7, 1919; 39 Phil 660
FACTS:
The case is an application for habeas corpus in favor of Rubi and other Manguianes
of the Province of Mindoro. It is alleged that the Maguianes are being illegally
deprived of their liberty by the provincial officials of that province. Rubi and his
companions are said to be held on the reservation established at Tigbao, Mindoro,
against their will, and one Dabalos is said to be held under the custody of the
provincial sheriff in the prison at Calapan for having run away from the reservation.
The provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of
Lake Naujan, selected by the provincial governor and approved by the provincial
board. The action was taken in accordance with section 2145 of the Administrative
Code of 1917, and was duly approved by the Secretary of the Interior as required by
said action.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christian upon sites selected by provincial
governor. With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is authorized,
when such a course is deemed necessary in the interest of law and order, to direct
such inhabitants to take up their habitation on sites on unoccupied public lands to be
selected by him an approved by the provincial board.
Petitioners, however, challenge the validity of this section of the Administrative
Code.
SUPREME COURT
Manila

ISSUE:
Does section 2145 of the Administrative Code of 1917 constitute an unlawful
delegation of legislative power by the Philippine Legislature to a provincial official
and a department head, therefore making it unconstitutional?
HELD:
No. The Philippine Legislature has here conferred authority upon the Province of
Mindoro, to be exercised by the provincial governor and the provincial board.
In determining whether the delegation of legislative power is valid or not, the
distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion
as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the later no valid objection can be made. Discretion may be
committed by the Legislature to an executive department or official. The Legislature
may make decisions of executive departments of subordinate official thereof, to
whom it has committed the execution of certain acts, final on questions of fact. The
growing tendency in the decision is to give prominence to the "necessity" of the case.
In enacting the said provision of the Administrative Code, the Legislature merely
conferred upon the provincial governor, with the approval of the provincial board
and the Department Head, discretionary authority as to the execution of the law. This
is necessary since the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge when such as course is
deemed necessary in the interest of law and order. As officials charged with the
administration of the province and the protection of its inhabitants, they are better
fitted to select sites which have the conditions most favorable for improving the
people who have the misfortune of being in a backward state.
Hence, Section 2145 of the Administrative Code of 1917 is not an unlawful
delegation of legislative power by the Philippine Legislature to provincial official
and a department head.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:

EN BANC
G.R. No. L-14078

March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,


vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.

In one of the cases which denote a landmark in American Constitutional History


(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary
of American jurisprudence, began his opinion (relating to the status of an Indian)
with words which, with a slight change in phraseology, can be made to introduce the
present opinion This cause, in every point of view in which it can be placed, is of
the deepest interest. The legislative power of state, the controlling power of the
constitution and laws, the rights if they have any, the political existence of a people,
the personal liberty of a citizen, are all involved in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and
proceed first, to introduce the facts and the issues, next to give a history of the so
called "non-Christians," next to compare the status of the "non-Christians" with that
of the American Indians, and, lastly, to resolve the constitutional questions presented.
I. INTRODUCTION.

"Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the
provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was
approved by the Secretary of the Interior of February 21, 1917.

This is an application for habeas corpus in favor of Rubi and other Manguianes of
the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived
of their liberty by the provincial officials of that province. Rubi and his companions
are said to be held on the reservation established at Tigbao, Mindoro, against their
will, and one Dabalos is said to be held under the custody of the provincial sheriff in
the prison at Calapan for having run away form the reservation.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive


order No. 2 which says:

The return of the Solicitor-General alleges:

"Whereas said resolution has been duly approve by the Honorable, the Secretary of
the Interior, on February 21, 1917.

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No.
25 which is as follows:

"Whereas the provincial board, by Resolution No. 25, current series, has selected a
site in the sitio of Tigbao on Naujan Lake for the permanent settlement of
Mangyanes in Mindoro.

"Whereas several attempts and schemes have been made for the advancement of the
non-Christian people of Mindoro, which were all a failure,

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to


the provisions of section 2145 of the revised Administrative Code, do hereby direct
that all the Mangyans in the townships of Naujan and Pola and the Mangyans east of
the Baco River including those in the districts of Dulangan and Rubi's place in
Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than
December 31, 1917.

"Whereas it has been found out and proved that unless some other measure is taken
for the Mangyan work of this province, no successful result will be obtained toward
educating these people.

"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."

"Whereas it is deemed necessary to obliged them to live in one place in order to


make a permanent settlement,

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and
the executive order of the governor of the same province copied in paragraph 3, were
necessary measures for the protection of the Mangyanes of Mindoro as well as the
protection of public forests in which they roam, and to introduce civilized customs
among them.

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas the provincial governor of any province in which non-Christian inhabitants


are found is authorized, when such a course is deemed necessary in the interest of
law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of
public land in the sitio of Tigbao on Naujan Lake be selected as a site for the
permanent settlement of Mangyanes in Mindoro subject to the approval of the
Honorable Secretary of the Interior, and

5. That Rubi and those living in his rancheria have not fixed their dwelling within the
reservation of Tigbao and are liable to be punished in accordance with section 2759
of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being detained
by the sheriff of Mindoro but if he is so detained it must be by virtue of the
provisions of articles Nos. 2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board
thereof directed the Manguianes in question to take up their habitation in Tigbao, a
site on the shore of Lake Naujan, selected by the provincial governor and approved
by the provincial board. The action was taken in accordance with section 2145 of the
Administrative Code of 1917, and was duly approved by the Secretary of the Interior
as required by said action. Petitioners, however, challenge the validity of this section
of the Administrative Code. This, therefore, becomes the paramount question which
the court is called upon the decide.
Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is authorized,
when such a course is deemed necessary in the interest of law and order, to direct
such inhabitants to take up their habitation on sites on unoccupied public lands to be
selected by him an approved by the provincial board.
In connection with the above-quoted provisions, there should be noted section 2759
of the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any nonChristian who shall refuse to comply with the directions lawfully given by a
provincial governor, pursuant to section two thousand one hundred and forty-five of
this Code, to take up habitation upon a site designated by said governor shall upon
conviction be imprisonment for a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine
law. The genealogical tree of this section, if we may be permitted to use such
terminology, would read: Section 2077, Administrative Code of 1916; section 62,
Act No. 1397; section 2 of various special provincial laws, notably of Act No. 547,
specifically relating to the Manguianes; section 69, Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This
word, as will later be disclosed, is also found in varying forms in other laws of the
Philippine Islands. In order to put the phrase in its proper category, and in order to
understand the policy of the Government of the Philippine Islands with reference to
the uncivilized elements of the Islands, it is well first of all to set down a skeleton
history of the attitude assumed by the authorities towards these "non-Christians,"
with particular regard for the legislation on the subject.

The most important of the laws of the Indies having reference to the subject at hand
are compiled in Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551.
Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13,
1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of
1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the
evangelical law, and in order that they may forget the blunders of their ancient rites
and ceremonies to the end that they may live in harmony and in a civilized manner, it
has always been endeavored, with great care and special attention, to use all the
means most convenient to the attainment of these purposes. To carry out this work
with success, our Council of the Indies and other religious persons met at various
times; the prelates of new Spain assembled by order of Emperor Charles V of
glorious memory in the year one thousand five hundred and forty-six all of which
meetings were actuated with a desire to serve God an our Kingdom. At these
meetings it was resolved that indios be made to live in communities, and not to live
in places divided and separated from one another by sierras and mountains, wherein
they are deprived of all spiritual and temporal benefits and wherein they cannot
profit from the aid of our ministers and from that which gives rise to those human
necessities which men are obliged to give one another. Having realized that
convenience of this resolution, our kings, our predecessors, by different orders, have
entrusted and ordered the viceroys, presidents, and governors to execute with great
care and moderation the concentration of the indios into reducciones; and to deal
with their doctrine with such forbearance and gentleness, without causing
inconveniences, so that those who would not presently settle and who would see the
good treatment and the protection of those already in settlements would, of their own
accord, present themselves, and it is ordained that they be not required to pay taxes
more than what is ordered. Because the above has been executed in the greater part
of our Indies, we hereby order and decree that the same be complied with in all the
remaining parts of the Indies, and the encomederos shall entreat compliance thereof
in the manner and form prescribed by the laws of this title.
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II. HISTORY.

LAW VIII.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE


CONDITIONS OF THIS LAW.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES,"


WHO SHALL BE "INDIOS."

The places wherein the pueblos and reducciones shall be formed should have the
facilities of waters. lands, and mountains, ingress and egress, husbandry and
passageway of one league long, wherein the indios can have their live stock that they
may not be mixed with those of the Spaniards.

We order that in each town and reduccion there be a mayor, who should be an indio
of the same reduccion; if there be more than eighty houses, there should be two
mayors and two aldermen, also indios; and, even if the town be a big one, there
should, nevertheless, be more than two mayors and four aldermen, If there be less
than eighty indios but not less than forty, there should be not more than one mayor
and one alderman, who should annually elect nine others, in the presence of the
priests , as is the practice in town inhabited by Spaniards and indios.

LAW IX.
Philip II at Toledo, on February 19, 1956.

LAW XXI.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE
LANDS PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated in
reducciones. Provided they shall not be deprived of the lands and granaries which
they may have in the places left by them. We hereby order that no change shall be
made in this respect, and that they be allowed to retain the lands held by them
previously so that they may cultivate them and profit therefrom.
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LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE
KING, VICEROY, OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter
or to remove the pueblos or the reducciones once constituted and founded, without
our express order or that of the viceroy, president, or the royal district court,
provided, however, that the encomenderos, priests, or indios request such a change or
consent to it by offering or giving information to that en. And, because these claims
are often made for private interests and not for those of the indios, we hereby order
that this law be always complied with, otherwise the change will be considered
fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the
judge or encomendero who should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May
8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600.
Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the one
following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO
SPANIARDS, NEGROES, "MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to
live in the reducciones and towns and towns of the indios, because it has been found
that some Spaniards who deal, trade, live, and associate with the indios are men of
troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and
useless men; and, to avoid the wrongs done them, the indios would leave their towns
and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them
and utilizing their services, contaminate them with their bad customs, idleness, and
also some of their blunders and vices which may corrupt and pervert the goal which
we desire to reach with regard to their salvation, increase, and tranquillity. We hereby
order the imposition of grave penalties upon the commission of the acts abovementioned which should not be tolerated in the towns, and that the viceroys,
presidents, governors, and courts take great care in executing the law within their
powers and avail themselves of the cooperation of the ministers who are truly honest.
As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are
children of indias and born among them, and who are to inherit their houses and
haciendas, they all not be affected by this law, it appearing to be a harsh thing to
separate them from their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to
improve the condition of the less advanced inhabitants of the Islands by
concentrating them in "reducciones," is found in the Decree of the Governor-General
of the Philippine Islands of January 14, 1881, reading as follows:

It is a legal principle as well as a national right that every inhabitant of a territory


recognized as an integral part of a nation should respect and obey the laws in force
therein; while, on other hand, it is the duty to conscience and to humanity for all
governments to civilize those backward races that might exist in the nation, and
which living in the obscurity of ignorance, lack of all the nations which enable them
to grasp the moral and material advantages that may be acquired in those towns
under the protection and vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the civilized
and Christian towns; to allow any longer the commission of depredations, precisely
in the Island of Luzon wherein is located the seat of the representative of the
Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves with
this most important question, and that much has been heretofore accomplished with
the help and self-denial of the missionary fathers who have even sacrificed their lives
to the end that those degenerate races might be brought to the principles of
Christianity, but the means and the preaching employed to allure them have been
insufficient to complete the work undertaken. Neither have the punishments imposed
been sufficient in certain cases and in those which have not been guarded against,
thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of things,
taking into account the prestige which the country demands and the inevitable duty
which every government has in enforcing respect and obedience to the national laws
on the part of all who reside within the territory under its control, I have proceeded in
the premises by giving the most careful study of this serious question which involves
important interests for civilization, from the moral and material as well as the
political standpoints. After hearing the illustrious opinions of all the local authorities,
ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after
finding the unanimous conformity of the meeting held with the Archbishop of
Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the orders of the
Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting
of the Council of Authorities, held for the object so indicated, I have arrived at an
intimate conviction of the inevitable necessity of proceeding in a practical manner
for the submission of the said pagan and isolated races, as well as of the manner and
the only form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I
hereby promulgate the following:
DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be
governed by the common law, save those exceptions prescribed in this decree which
are bases upon the differences of instructions, of the customs, and of the necessities
of the different pagan races which occupy a part of its territory.
2. The diverse rules which should be promulgated for each of these races which
may be divided into three classes; one, which comprises those which live isolated
and roaming about without forming a town nor a home; another, made up of those
subdued pagans who have not as yet entered completely the social life; and the third,
of those mountain and rebellious pagans shall be published in their respective
dialects, and the officials, priests, and missionaries of the provinces wherein they are
found are hereby entrusted in the work of having these races learn these rules. These
rules shall have executive character, beginning with the first day of next April, and,
as to their compliance, they must be observed in the manner prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from now
on, with all the means which their zeal may suggest to them, to the taking of the
census of the inhabitants of the towns or settlement already subdued, and shall adopt
the necessary regulations for the appointment of local authorities, if there be none as
yet; for the construction of courts and schools, and for the opening or fixing up of
means of communication, endeavoring, as regards the administrative organization of
the said towns or settlements, that this be finished before the first day of next July, so
that at the beginning of the fiscal year they shall have the same rights and obligations
which affect the remaining towns of the archipelago, with the only exception that in
the first two years they shall not be obliged to render personal services other than
those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to move their
dwelling-houses; and only in case of absolute necessity shall a new residence be
fixed for them, choosing for this purpose the place most convenient for them and
which prejudices the least their interest; and, in either of these cases, an effort must
be made to establish their homes with the reach of the sound of the bell.
5. For the protection and defense of these new towns, there shall be established an
armed force composed precisely of native Christian, the organization and service of
which shall be determined in a regulations based upon that of the abolished Tercios
de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns understand all
the rights and duties affecting them and the liberty which they have as to where and
now they shall till their lands and sell the products thereof, with the only exception
of the tobacco which shall be bought by the Hacienda at the same price and

conditions allowed other producers, and with the prohibition against these new towns
as well as the others from engaging in commerce of any other transaction with the
rebellious indios, the violation of which shall be punished with deportation.

the military headquarters shall immediately order a detachment of the military staff
to study the zones where such operations shall take place and everything conducive
to the successful accomplishment of the same.

7. In order to properly carry out this express prohibition, the limits of the territory of
the rebellious indios shall be fixed; and whoever should go beyond the said limits
shall be detained and assigned governmentally wherever convenient.

12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may
authority, civil as well as military authorities, shall give the most effective aid and
cooperation to the said forces in all that is within the attributes and the scope of the
authority of each.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of
the Catholic Church, all by this fact along be exempt for eight years from rendering
personal labor.
9. The authorities shall offer in the name of the State to the races not subdued (aetas
and mountains igorrots the following advantages in returns for their voluntary
submission: to live in towns; unity among their families; concession of good lands
and the right to cultivate them in the manner they wish and in the way them deem
most productive; support during a year, and clothes upon effecting submission;
respect for their habits and customs in so far as the same are not opposed to natural
law; freedom to decide of their own accord as to whether they want to be Christians
or not; the establishment of missions and families of recognized honesty who shall
teach, direct, protect, and give them security and trust them; the purchase or facility
of the sale of their harvests; the exemption from contributions and tributes for ten
years and from the quintas (a kind of tax) for twenty years; and lastly, that those who
are governed by the local authorities as the ones who elect such officials under the
direct charge of the authorities of the province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their new
towns, of constructing their town hall, schools, and country roads which place them
in communication with one another and with the Christians; provided, the location of
these towns be distant from their actual residences, when the latter do not have the
good conditions of location and cultivations, and provided further the putting of
families in a place so selected by them be authorized in the towns already
constituted.
11. The armed force shall proceed to the prosecution and punishment of the tribes,
that, disregarding the peace, protection, and advantages offered them, continue in
their rebellious attitude on the first of next April, committing from now on the crimes
and vexations against the Christian towns; and for the this purposes, the Captain
General's Office shall proceed with the organization of the divisions of the Army
which, in conjunction with the rural guards (cuadrilleros), shall have to enter the
territory of such tribes. On the expiration of the term, they shall destroy their
dwelling-houses, labors, and implements, and confiscate their products and cattle.
Such a punishment shall necessarily be repeated twice a year, and for this purpose

13. With respect to the reduccion of the pagan races found in some of the provinces
in the southern part of the Archipelago, which I intend to visit, the preceding
provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-Royal
Patron, a council or permanent commission which shall attend to and decide all the
questions relative to the application of the foregoing regulations that may be brought
to it for consultations by the chiefs of provinces and priests and missionaries.
15. The secondary provisions which may be necessary, as a complement to the
foregoing, in brining about due compliance with this decree, shall be promulgated by
the respective official centers within their respective jurisdictions. (Gaceta de
Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question
as to the best method for dealing with the primitive inhabitants has been a perplexing
one.
1. Organic law.
The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section 1 of
the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions
have remained undisturbed by subsequent congressional legislation. One paragraph
of particular interest should here be quoted, namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt
the same course followed by Congress in permitting the tribes of our North American
Indians to maintain their tribal organization and government and under which many
of these tribes are now living in peace and contentment, surrounded by civilization to
which they are unable or unwilling to conform. Such tribal governments should,

however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous
practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of
an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill
was to provide for a legislative body and, with this end in view, to name the
prerequisites for the organization of the Philippine Assembly. The Philippine
Legislature, composed of the Philippine Commission and the Philippine Assembly,
was to have jurisdiction over the Christian portion of the Islands. The Philippine
Commission was to retain exclusive jurisdiction of that part of said Islands inhabited
by Moros or other non-Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred
the exclusive legislative jurisdiction and authority theretofore exercised by the
Philippine Commission, to the Philippine Legislature (sec. 12). It divided the
Philippine Islands into twelve senatorial districts, the twelfth district to be composed
of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao
and Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of the
Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth
district (sec. 16). The law establish a bureau to be known as the "Bureau of nonChristian Tribes" which shall have general supervision over the public affairs of the
inhabitants which are represented in the Legislature by appointed senators and
representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between
the territory not inhabited by Moros or other non-Christian tribes, and the territory
which Moros or other non-Christian tribes, and the territory which is inhabited by
Moros or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal
Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the
city of Manila; Act No. 7887, providing for the organization and government of the
Moro Province; Act No. 1396, the Special Provincial Government Act; Act No.
1397, the Township Government Act; Act No. 1667, relating to the organization of
settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of
the Department of Mindanao and Sulu. The major portion of these laws have been
carried forward into the Administrative Codes of 1916 an d1917.

Of more particular interest are certain special laws concerning the government of the
primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9,
1902, by the United States Philippine Commission, having reference to the Province
of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855,
1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan,
Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva
Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an
example of these laws, because referring to the Manguianes, we insert Act No. 547:
No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL
CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF
MINDORO.
By authority of the United States, be it enacted by the Philippine Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them under any
form of municipal government, the provincial governor is authorized, subject to the
approval of the Secretary of the Interior, in dealing with these Manguianes to appoint
officers from among them, to fix their designations and badges of office, and to
prescribe their powers and duties: Provided, That the powers and duties thus
prescribed shall not be in excess of those conferred upon township officers by Act
Numbered Three hundred and eighty-seven entitled "An Act providing for the
establishment of local civil Governments in the townships and settlements of Nueva
Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in the interest
of law and order, to direct such Manguianes to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
Manguianes who refuse to comply with such directions shall upon conviction be
imprisonment for a period not exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his
province to acquire the knowledge and experience necessary for successful local
popular government, and his supervision and control over them shall be exercised to
this end, an to the end that law and order and individual freedom shall be maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act
Numbered three hundred and eighty-seven, as a township, and the geographical
limits of such township shall be fixed by the provincial board.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of
the same is hereby expedited in accordance with section two of 'An Act prescribing
the order of procedure by the Commission in the enactment of laws,' passed
September twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act
No. 1396 and 1397. The last named Act incorporated and embodied the provisions in
general language. In turn, Act No. 1397 was repealed by the Administrative Code of
1916. The two Administrative Codes retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a
settled and consistent practice with reference to the methods to be followed for their
advancement.

The Administrative Code specifically provides that the term "non-Christian" shall
include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec.
2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of
course result in giving to it a religious signification. Obviously, Christian would be
those who profess the Christian religion, and non-Christians, would be those who do
not profess the Christian religion. In partial corroboration of this view, there could
also be cited section 2576 of the last Administrative Code and certain well-known
authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand
Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin
of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898,
vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p.
107.)
Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.

C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying
forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the
Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes."
These words are to be found in section 7 of the Philippine Bill and in section 22 of
the Jones Law. They are also to be found in Act No. 253 of the Philippines
Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of
the Philippine Legislature, carried forward into sections 701-705 of the
Administrative Code of 1917, reestablishing this Bureau. Among other laws which
contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549,
550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos"
have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the
coming into being of a Filipinized legislature. These terms can be found in sections
2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145,
2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674
of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine
Commission.

In one sense, the word can have a geographical signification. This is plainly to be
seen by the provisions of many laws. Thus, according to the Philippine Bill, the
authority of the Philippine Assembly was recognized in the "territory" of the Islands
not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers
similar recognition in the authorization of the twelfth senatorial district for the
"territory not now represented in the Philippine Assembly." The Philippines
Legislature has, time and again, adopted acts making certain other acts applicable to
that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative
Code. The first section of this article, preceding section 2145, makes the provisions
of the article applicable only in specially organized provinces. The specially
organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes,
and Palawan. These are the provinces to which the Philippine Legislature has never
seen fit to give all the powers of local self-government. They do not, however,
exactly coincide with the portion of the Philippines which is not granted popular
representation. Nevertheless, it is still a geographical description.
It is well-known that within the specially organized provinces, there live persons
some of who are Christians and some of whom are not Christians. In fact, the law
specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception
is likewise inadquate. The reason it that the motive of the law relates not to a

particular people, because of their religion, or to a particular province because of its


location, but the whole intent of the law is predicated n the civilization or lack of
civilization of the inhabitants.

governor of provinces, organized under the Special Provincial Government Act, a


letter which later received recognition by the Governor-General and was circulated
by the Executive Secretary, reading as follows:

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words


usually introduce the term. "The so-called non-Christian" is a favorite expression.
The Secretary of the Interior who for so many years had these people under his
jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of
the "backward Philippine peoples, commonly known as the 'non-Christian tribes."'
(See Hearings before the Committee on the Philippines, United States Senate, Sixtythird Congress, third session on H.R. 18459, An Act to declare the purpose of the
People of the United States as to the future political status of the Philippine Islands
and to provide a more autonomous government for the Islands, pp. 346, 351; letter of
the Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.)

Sir: Within the past few months, the question has arisen as to whether people who
were originally non-Christian but have recently been baptized or who are children of
persons who have been recently baptized are, for the purposes of Act 1396 and 1397,
to be considered Christian or non-Christians.

The idea that the term "non-Christian" is intended to relate to degree of civilization,
is substantiated by reference to legislative, judicial, and executive authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and
sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917.
For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct
"systematic investigations with reference to non-Christian tribes . . . with special
view to determining the most practicable means for bringing about their
advancement in civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of
United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose
as to the effect of a tribal marriage in connection with article 423 of the Penal code
concerning the husband who surprises his wife in the act of adultery. In discussing
the point, the court makes use of the following language:
. . . we are not advised of any provision of law which recognizes as legal a tribal
marriage of so-called non-Christians or members of uncivilized tribes, celebrated
within that province without compliance with the requisites prescribed by General
Orders no. 68. . . . We hold also that the fact that the accused is shown to be a
member of an uncivilized tribe, of a low order of intelligence, uncultured and
uneducated, should be taken into consideration as a second marked extenuating
circumstance.
Of much more moment is the uniform construction of execution officials who have
been called upon to interpret and enforce the law. The official who, as a member of
the Philippine Commission, drafted much of the legislation relating to the so-called
Christians and who had these people under his authority, was the former Secretary of
the Interior. Under date of June 30, 1906, this official addressed a letter to all

It has been extremely difficult, in framing legislation for the tribes in these islands
which are not advanced far in civilization, to hit upon any suitable designation which
will fit all cases. The number of individual tribes is so great that it is almost out of
the question to enumerate all of them in an Act. It was finally decided to adopt the
designation 'non-Christians' as the one most satisfactory, but the real purpose of the
Commission was not so much to legislate for people having any particular religious
belief as for those lacking sufficient advancement so that they could, to their own
advantage, be brought under the Provincial Government Act and the Municipal
Code.
The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of baptism is
performed. For practical purposes, therefore, you will give the member of so-called
"wild tribes" of your province the benefit of the doubt even though they may recently
have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain under
the jurisdiction of regularly organized municipalities or what form of government
shall be afforded to them should be the degree of civilization to which they have
attained and you are requested to govern yourself accordingly.
I have discussed this matter with the Honorable, the Governor-General, who concurs
in the opinion above expressed and who will have the necessary instructions given to
the governors of the provinces organized under the Provincial Government Act.
(Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this
court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while no
other better classification has as yet been made the present classification should be
allowed to stand . . . I believe the term carries the same meaning as the expressed in
the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is
indicative of the degree of civilization rather than of religious denomination, for the

hold that it is indicative of religious denomination will make the law invalid as
against that Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula
taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the
Interior was requested on the point, who, by return indorsement, agreed with the
interpretation of the Collector of Internal Revenue. This Construction of the
Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau
of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue
Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the
payment of cedula taxes. The Collector of Internal Revenue has interpreted this
provision of law to mean not that persons who profess some form of Christian
worship are alone subject to the cedula tax, and that all other person are exempt; he
has interpreted it to mean that all persons preserving tribal relations with the socalled non-Christian tribes are exempt from the cedula tax, and that all others,
including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so
long as they live in cities or towns, or in the country in a civilized condition. In other
words, it is not so much a matter of a man's form of religious worship or profession
that decides whether or not he is subject to the cedula tax; it is more dependent on
whether he is living in a civilized manner or is associated with the mountain tribes,
either as a member thereof or as a recruit. So far, this question has not come up as to
whether a Christian, maintaining his religious belief, but throwing his lot and living
with a non-Christian tribe, would or would not be subject to the cedula tax. On one
occasion a prominent Hebrew of Manila claimed to this office that he was exempt
from the cedula tax, inasmuch as he was not a Christian. This Office, however,
continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen,
etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city
are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and
other s are quite widely scattered throughout the Islands, and a condition similar to
that which exist in Manila also exists in most of the large provincial towns. Cedula
taxes are therefore being collected by this Office in all parts of these Islands on the
broad ground that civilized people are subject to such taxes, and non-civilized people
preserving their tribal relations are not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular letter
No. 327, approved by the Secretary of Finance and Justice, to all provincial
treasurers. This letter in part reads:

In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they come in
from the hills for the purposes of settling down and becoming members of the body
politic of the Philippine Islands, the following clarification of the laws governing
such questions and digest of rulings thereunder is hereby published for the
information of all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of
the fact that they do not profess Christianity, but because of their uncivilized mode of
life and low state of development. All inhabitants of the Philippine Islands classed as
members of non-Christian tribes may be divided into three classes in so far as the
cedula tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and uncivilized
mode of life, severs whatever tribal relations he may have had and attaches himself
civilized community, belonging a member of the body politic, he thereby makes
himself subject to precisely the same law that governs the other members of that
community and from and after the date when he so attaches himself to the
community the same cedula and other taxes are due from him as from other members
thereof. If he comes in after the expiration of the delinquency period the same rule
should apply to him as to persons arriving from foreign countries or reaching the age
of eighteen subsequent to the expiration of such period, and a regular class A, D, F,
or H cedula, as the case may be, should be furnished him without penalty and
without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining
whether or not a man is subject to the regular cedula tax is not the circumstance that
he does or does not profess Christianity, nor even his maintenance of or failure to
maintain tribal relations with some of the well known wild tribes, but his mode of
life, degree of advancement in civilization and connection or lack of connection with
some civilized community. For this reason so called "Remontados" and "Montescos"
will be classed by this office as members of non-Christian tribes in so far as the
application of the Internal Revenue Law is concerned, since, even though they
belong to no well recognized tribe, their mode of life, degree of advancement and so
forth are practically the same as those of the Igorrots and members of other
recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,

10

Secretary of Finance and Justice.


The two circular above quoted have since been repealed by Bureau of Internal
Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector
of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa,
Secretary of Finance and Justice. Section 30 of the regulations is practically a
transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a nonChristian who has been baptized by a minister of the Gospel. The precise questions
were these: "Does he remain non-Christian or is he entitled to the privileges of a
Christian? By purchasing intoxicating liquors, does he commit an infraction of the
law and does the person selling same lay himself liable under the provision of Act
No. 1639?" The opinion of Attorney-General Avancea, after quoting the same
authorities hereinbefore set out, concludes:
In conformity with the above quoted constructions, it is probable that is probable that
the person in question remains a non-Christian, so that, in purchasing intoxicating
liquors both he and the person selling the same make themselves liable to
prosecution under the provisions of Act No. 1639. At least, I advise you that these
should be the constructions place upon the law until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has in the
provisions of the Administrative code which we are studying, we submit that said
phrase does not have its natural meaning which would include all non-Christian
inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but
simply refers to those uncivilized members of the non-Christian tribes of the
Philippines who, living without home or fixed residence, roam in the mountains,
beyond the reach of law and order . . .

intention of the law, but because to give it its lateral meaning would make the law
null and unconstitutional as making distinctions base the religion of the individual.
The Official Census of 1903, in the portion written by no less an authority than De.
David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the
population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes.
(Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director
of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used
in the Census now being taken is: "Filipinos and Primitive Filipinos." In a
Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands,
prepared in the Bureau of Insular Affairs, War Department, a sub-division under the
title non-Christian tribes is, "Physical and Political Characteristics of the nonChristian Tribes," which sufficiently shows that the terms refers to culture and not to
religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-Christian"
refers, not to religious belief, but, in a way , to geographical area, and, more directly,
to natives of the Philippine Islands of a law grade of civilization, usually living in
tribal relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The
Philippine Census of 1903 divided them into four classes. Of the third class, are the
Manguianes (or Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his
Etimilogia de los nombres de Rozas de Filipinas, says:

The Philippine Commission in denominating in its laws that portion of the


inhabitants of the Philippines which live in tribes as non-Christian tribes, as
distinguished from the common Filipinos which carry on a social and civilized life,
did not intended to establish a distinction based on the religious beliefs of the
individual, but, without dwelling on the difficulties which later would be occasioned
by the phrase, adopted the expression which the Spanish legislation employed to
designate the uncivilized portion of the inhabitants of the Philippines.

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan,"


"negro." It may be that the use of this word is applicable to a great number of
Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro.
Even in primitive times without doubt this name was given to those of that island
who bear it to-day, but its employed in three Filipino languages shows that the
radical ngian had in all these languages a sense to-day forgotten. In Pampango this
ending still exists and signifies "ancient," from which we can deduce that the name
was applied to men considered to be the ancient inhabitants, and that these men were
pushed back into the interior by the modern invaders, in whose language they were
called the "ancients."

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and
2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent to
members of uncivilized tribes of the Philippines, not only because this is the evident

The Manguianes are very low in culture. They have considerable Negrito blood and
have not advanced beyond the Negritos in civilization. They are a peaceful, timid,
primitive, semi-nomadic people. They number approximately 15,000. The

11

manguianes have shown no desire for community life, and, as indicated in the
preamble to Act No. 547, have not progressed sufficiently in civilization to make it
practicable to bring them under any form of municipal government. (See Census of
the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called nonChristian people is said, on argument, to be practically identical with that followed
by the United States Government in its dealings with the Indian tribes. Valuable
lessons, it is insisted, can be derived by an investigation of the American-Indian
policy.

to the soil over which they roamed and hunted and established occasional villages.
But they asserted an ultimate title in the land itself, by which the Indian tribes were
forbidden to sell or transfer it to other nations or peoples without the consent of this
paramount authority. When a tribe wished to dispose of its lands, or any part of it, or
the State or the United States wished to purchase it, a treaty with the tribe was the
only mode in which this could be done. The United States recognized no right in
private persons, or in other nations, to make such a purchase by treaty or otherwise.
With the Indians themselves these relation are equally difficult to define. They were,
and always have been, regarded as having a semi-independent position when they
preserved their tribal relations; not as States, not as nation not a possessed of the fall
attributes of sovereignty, but as a separate people, with the power of regulating their
internal and social relations, and thus far not brought under the laws of the Union or
of the State within whose limits they resided.
The opinion then continues:

From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the Government
of the United States and the Indians may be described as that of guardian and ward.
It is for the Congress to determine when and how the guardianship shall be
terminated. The Indians are always subject to the plenary authority of the United
States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore
mentioned, tells how the Congress passed an Act in 1819 "for promoting those
humane designs of civilizing the neighboring Indians." After quoting the Act, the
opinion goes on "This act avowedly contemplates the preservation of the Indian
nations as an object sought by the United States, and proposes to effect this object by
civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United States
vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the
United States Constitution which gives Congress "power to regulate commerce with
foreign nations, and among the several States, and with the Indian tribes." The court
then proceeds to indicate a brief history of the position of the Indians in the United
States (a more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States, both
before and since the Revolution, to the people of the United States, has always been
an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of American
towards the Indians who were found here, the colonies before the Revolution and the
States and the United States since, have recognized in the Indians a possessory right

It seems to us that this (effect of the law) is within the competency of Congress.
These Indian tribes are the wards of the nation. The are communities dependent on
the United States. dependent largely for their daily food. Dependent for their political
rights. They owe no allegiance to the States, and receive from the no protection.
Because of the local ill feeling, the people of the States where they are found are
often their deadliest enemies. From their very weakness and helplessness, so largely
due to the course of dealing of the Federal Government with them and the treaties in
which it has been promised, there arise the duty of protection, and with it the power.
This has always been recognized by the Executive and by Congress, and by this
court, whenever the question has arisen . . . The power of the General Government
over these remnants of race once powerful, now weak and diminished in numbers, is
necessary to their protection, as well as to the safety of those among whom they
dwell. it must exist in that government, because it never has existed anywhere else,
because the theater of its exercise is within the geographical limits of the United
States, because it has never been denied, and because it alone can enforce its laws on
all the tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to
be considered was whether the status of the Pueblo Indians and their lands was such
that Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the
reports of the different superintendent charged with guarding their interests and
founds that these Indians are dependent upon the fostering care and protection of the
government "like reservation Indians in general." Continuing, the court said "that
during the Spanish dominion, the Indians of the pueblos were treated as wards
requiring special protection, where subjected to restraints and official supervisions in
the alienation of their property." And finally, we not the following: "Not only does
the Constitution expressly authorize Congress to regulate commerce with the Indians

12

tribes, but long-continued legislative and executive usage and an unbroken current of
judicial decisions have attributed to the United States as a superior and civilized
nation the power and the duty of exercising a fostering care and protection over all
dependent Indian communities within its borders, whether within its original territory
or territory subsequently acquired, and whether within or without the limits of a
state."
With reference to laws affecting the Indians, it has been held that it is not within the
power of the courts to overrule the judgment of Congress. For very good reason, the
subject has always been deemed political in nature, not subject to the jurisdiction of
the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488;
U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs.
Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871],
11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169
U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams
[1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western
Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs.
Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the
United States sets apart any public land as an Indian reservation, it has full authority
to pass such laws and authorize such measures as may be necessary to give to the
Indians thereon full protection in their persons and property. (U.S. vs. Thomas
[1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an
unbroken line of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might
result in the issuance of habeas corpus, is that of United States vs. Crook ([1879],
Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus
issued against Brigadier General George Crook at the relation of Standing Bear and
other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged
in substance that the relators are Indians who have formerly belonged to the Ponca
tribe of Indians, now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations
therewith, and had adopted the general habits of the whites, and were then
endeavoring to maintain themselves by their own exertions, and without aid or
assistance from the general government; that whilst they were thus engaged, and
without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook. The
substance of the return to the writ was that the relators are individual members of,
and connected with, the Ponca tribe of Indians; that they had fled or escaped form a
reservation situated some place within the limits of the Indian Territory had
departed therefrom without permission from the Government; and, at the request of
the Secretary of the Interior, the General of the Army had issued an order which

required the respondent to arrest and return the relators to their tribe in the Indian
Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal
imprisonment by habeas corpus. The second question, of much greater importance,
related to the right of the Government to arrest and hold the relators for a time, for
the purpose of being returned to the Indian Territory from which it was alleged the
Indian escaped. In discussing this question, the court reviewed the policy the
Government had adopted in its dealing with the friendly tribe of Poncase. Then,
continuing, the court said: "Laws passed for the government of the Indian country,
and for the purpose of regulating trade and intercourse with the Indian tribes, confer
upon certain officers of the Government almost unlimited power over the persons
who go upon the reservations without lawful authority . . . Whether such an
extensive discretionary power is wisely vested in the commissioner of Indian affairs
or not , need not be questioned. It is enough to know that the power rightfully exists,
and, where existing, the exercise of the power must be upheld." The decision
concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United States, and
has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before
a federal judge, in all cases where he may be confined or in custody under color of
authority of the United States or where he is restrained of liberty in violation of the
constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the military
department of the Platte, has the custody of the relators, under color of authority of
the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the
Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more
fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of
happiness," so long as they obey the laws and do not trespass on forbidden ground.
And,
5. Being restrained of liberty under color of authority of the United States, and in
violation of the laws thereof, the relators must be discharged from custody, and it is
so ordered.

13

As far as the first point is concerned, the decision just quoted could be used as
authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of
the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act,
and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race
Horse [1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that
Indian reservations do exist in the United States, that Indians have been taken from
different parts of the country and placed on these reservation, without any previous
consultation as to their own wishes, and that, when once so located, they have been
made to remain on the reservation for their own good and for the general good of the
country. If any lesson can be drawn form the Indian policy of the United States, it is
that the determination of this policy is for the legislative and executive branches of
the government and that when once so decided upon, the courts should not interfere
to upset a carefully planned governmental system. Perhaps, just as may forceful
reasons exists for the segregation as existed for the segregation of the different
Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative power
should be zealously protected, we agree. An understanding of the rule will, however,
disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by Judge
Ranney, and since followed in a multitude of case, namely: "The true distinction
therefore is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion
as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z. R.
Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by
Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature
may make decisions of executive departments of subordinate official thereof, to
whom t has committed the execution of certain acts, final on questions of fact. (U.S.
vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give
prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the Legislature
merely conferred upon the provincial governor, with the approval of the provincial
board and the Department Head, discretionary authority as to the execution of the
law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus
to require the Secretary of the Interior to approve the selection and taking of one
hundred and sixty acres by the relator out of the lands ceded to the United States by
the Wichita and affiliated bands of Indians. Section 463 of the United States Revised
Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of
the Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal,
especially in view of the long established practice of the Department, before saying
that this language was not broad enough to warrant a regulation obviously made for
the welfare of the rather helpless people concerned. The power of Congress is not
doubted. The Indians have been treated as wards of the nation. Some such
supervision was necessary, and has been exercised. In the absence of special
provisions naturally it would be exercised by the Indian Department." (See also as
corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204
U.S.., 364, reviewing the previous decisions of the United States Supreme Court:
U.S. vs. Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An
exception to the general rule. sanctioned by immemorial practice, permits the central
legislative body to delegate legislative powers to local authorities. The Philippine
Legislature has here conferred authority upon the Province of Mindoro, to be
exercised by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as course is
deemed necessary in the interest of law and order?" As officials charged with the
administration of the province and the protection of its inhabitants, who but they are
better fitted to select sites which have the conditions most favorable for improving
the people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of
legislative power by the Philippine Legislature to provincial official and a
department head.
B. RELIGIOUS DISCRIMINATION

14

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on


behalf of his unknown clients, says that "The statute is perfectly clear and
unambiguous. In limpid English, and in words as plain and unequivocal as language
can express, it provides for the segregation of 'non-Christians' and none other." The
inevitable result, them, is that the law "constitutes an attempt by the Legislature to
discriminate between individuals because of their religious beliefs, and is,
consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable the
Legislature must be understood to mean what it has plainly expressed; judicial
construction is then excluded; religious equality is demanded by the Organic Law;
the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as
hereinbefore stated, we do not feel free to discard the long continued meaning given
to a common expression, especially as classification of inhabitants according to
religious belief leads the court to what it should avoid, the nullification of legislative
action. We hold that the term "non-Christian" refers to natives of the Philippines
Islands of a low grade of civilization, and that section 2145 of the Administrative
Code of 1917, does not discriminate between individuals an account of religious
differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's
instructions of to the Commission, the Philippine Bill, and the Jones Law, providing
"That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws." This constitutional limitation is derived from the
Fourteenth Amendment to the United States Constitution and these provisions, it
has been said "are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality."
(Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual
is then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized licentiousness
that trespasses on right. That authorized licentiousness that trespasses on right. It is a
legal and a refined idea, the offspring of high civilization, which the savage never
understood, and never can understand. Liberty exists in proportion to wholesome
restraint; the more restraint on others to keep off from us, the more liberty we have . .
. that man is free who is protected from injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being forced
to do what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac according
to one's own will. It is only freedom from restraint under conditions essential to the
equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen
[1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which
every person is necessarily subject for the common good. On any other basis,
organized society could not exist with safety to its members. Society based on the
rule that each one is a law unto himself would soon be confronted with disorder and
anarchy. Real liberty for all could not exist under the operation of a principle which
recognizes the right of each individual person to use his own, whether in respect of
his person or his property, regardless of the injury that may be done to others . . .
There is, of course, a sphere with which the individual may asserts the supremacy of
his own will, and rightfully dispute the authority of any human government
especially of any free government existing under a written Constitution to
interfere with the exercise of that will. But it is equally true that in very well-ordered
society charged with the duty of conserving the safety of its members, the rights of
the individual in respect of his liberty may at times, under the pressure of great
dangers, be subjected to such restraint to be enforced by reasonable regulations, as
the safety of the general public may demand." (Harlan, J., In Jacobson vs.
Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in
a civilized community, consistently with the peaceful enjoyment of like freedom in
others. The right to Liberty guaranteed by the Constitution includes the right to exist
and the right to be free from arbitrary personal restraint or servitude. The term cannot
be dwarfed into mere freedom from physical restraint of the person of the citizen, but
is deemed to embrace the right of man to enjoy the faculties with which he has been
endowed by this Creator, subject only to such restraints as are necessary for the
common welfare. As enunciated in a long array of authorities including epochmaking decisions of the United States Supreme Court, Liberty includes the right of
the citizens to be free to use his faculties in all lawful ways; to live an work where he
will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that
purpose. to enter into all contracts which may be proper, necessary, and essential to
his carrying out these purposes to a successful conclusion. The chief elements of the

15

guaranty are the right to contract, the right to choose one's employment, the right to
labor, and the right of locomotion.

varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody
[1909], 212 U. S., 82.)

In general, it may be said that Liberty means the opportunity to do those things
which are ordinarily done by free men. (There can be noted Cummings vs. Missouri
[1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears
[1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs.
Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.)

The pledge that no person shall be denied the equal protection of the laws is not
infringed by a statute which is applicable to all of a class. The classification must
have a reasonable basis and cannot be purely arbitrary in nature.

One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is
"Liberty regulated by law." Implied in the term is restraint by law for the good of the
individual and for the greater good of the peace and order of society and the general
well-being. No man can do exactly as he pleases. Every man must renounce
unbridled license. The right of the individual is necessarily subject to reasonable
restraint by general law for the common good. Whenever and wherever the natural
rights of citizen would, if exercises without restraint, deprive other citizens of rights
which are also and equally natural, such assumed rights must yield to the regulation
of law. The Liberty of the citizens may be restrained in the interest of the public
health, or of the public order and safety, or otherwise within the proper scope of the
police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes
Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law.
Daniel Webster, in the course of the argument in the Dartmouth College Case before
the United States Supreme Court, since a classic in forensic literature, said that the
meaning of "due process of law" is, that "every citizen shall hold his life, liberty,
property, an immunities under the protection of the general rules which govern
society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice are
not requisite a rule which is especially true where much must be left to the discretion
of the administrative officers in applying a law to particular cases. (See McGehee,
Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of
liberty. "Any legal proceeding enforced by public authority, whether sanctioned by
age and customs, or newly devised in the discretion of the legislative power, in
furtherance of the public good, which regards and preserves these principles of
liberty and justice, must be held to be due process of law." (Hurtado vs. California
[1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall
be a law prescribed in harmony with the general powers of the legislative department
of the Government; second, that this law shall be reasonable in its operation; third,
that it shall be enforced according to the regular methods of procedure prescribed;
and fourth, that it shall be applicable alike to all the citizens of the state or to all of a
class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United
States Supreme Court. 1) "What is due process of law depends on circumstances. It

We break off with the foregoing statement, leaving the logical deductions to be made
later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment
to the United States Constitution particularly as found in those portions of Philippine
Organic Law providing "That slavery shall not exist in said Islands; nor shall
involuntary servitude exist except as a punishment for crime whereof the party shall
have been duly convicted." It is quite possible that the Thirteenth Amendment, since
reaching to "any place subject to" the "jurisdiction" of the United States, has force in
the Philippine. However this may be, the Philippine Legislature has, by adoption,
with necessary modifications, of sections 268 to 271 inclusive of the United States
Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary
servitude, together wit their corollary, peonage, all denote "a condition of enforced,
compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The
term of broadest scope is possibly involuntary servitude. It has been applied to any
servitude in fact involuntary, no matter under what form such servitude may have
been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely
for their freedom. Next must come a description of the police power under which the
State must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note
at this moment is the farreaching scope of the power, that it has become almost
possible to limit its weep, and that among its purposes is the power to prescribe
regulations to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the State, develop its
resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113
U.S., 27.) What we are not interested in is the right of the government to restrain
liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with
self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be

16

said to be that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose
Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation,
the judiciary rarely attempt to dam the on rushing power of legislative discretion,
provided the purposes of the law do not go beyond the great principles that mean
security for the public welfare or do not arbitrarily interfere with the right of the
individual.
The Government of the Philippine Islands has both on reason and authority the right
to exercise the sovereign police power in the promotion of the general welfare and
the public interest. "There can be not doubt that the exercise of the police power of
the Philippine Government belongs to the Legislature and that this power is limited
only by the Acts of Congress and those fundamental principles which lie at the
foundation of all republican forms of government." (Churchill and Tait vs. Rafferty
[1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before
finally deciding whether any constitutional provision has indeed been violated by
section 2145 of the Administrative Code, we should endeavor to ascertain the
intention of the Legislature in enacting this section. If legally possible, such
legislative intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart
the Tigbao reservation, it will be remembered, assigned as reasons fort the action, the
following: (1) The failure of former attempts for the advancement of the nonChristian people of the province; and (2) the only successfully method for educating
the Manguianes was to oblige them to live in a permanent settlement. The SolicitorGeneral adds the following; (3) The protection of the Manguianes; (4) the protection
of the public forests in which they roam; (5) the necessity of introducing civilized
customs among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the
motives for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken together to
Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place.
There he found that the site selected is a good one; that creditable progress has been
made in the clearing of forests, construction of buildings, etc., that there appears to
be encouraging reaction by the boys to the work of the school the requirements of
which they appear to meet with enthusiastic interest after the first weeks which are
necessarily a somewhat trying period for children wholly unaccustomed to orderly
behaviour and habit of life. He also gathered the impression that the results obtained

during the period of less than one year since the beginning of the institution
definitely justify its continuance and development.
Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila,
made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its
policy to organize them into political communities and to educate their children with
the object of making them useful citizens of this country. To permit them to live a
wayfaring life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they will be
subject to involuntary servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all
the non-Christian people, has adopted as the polaris of his administration "the
advancement of the non-Christian elements of our population to equality and
unification with the highly civilized Christian inhabitants." This is carried on by the
adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic race
are induced to leave their wild habitat and settle in organized communities.
(b) The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to facilitate
their development and the extention of government control.
(d) Construction of roads and trials between one place and another among nonChristians, to promote social and commercial intercourse and maintain amicable
relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially
agriculture.
( f ) The encouragement of immigration into, and of the investment of private capital
in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued among
the non-Christian people. These people are being taught and guided to improve their

17

living conditions in order that they may fully appreciate the benefits of civilization.
Those of them who are still given to nomadic habits are being persuaded to abandon
their wild habitat and settle in organized settlements. They are being made to
understand that it is the purpose of the Government to organize them politically into
fixed and per manent communities, thus bringing them under the control of the
Government, to aid them to live and work, protect them from involuntary servitude
and abuse, educate their children, and show them the advantages of leading a
civilized life with their civilized brothers. In short, they are being impressed with the
purposes and objectives of the Government of leading them to economic, social, and
political equality, and unification with the more highly civilized inhabitants of the
country. (See Report of the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations
with the so-called non-Christians, and to promote their educational, agricultural,
industrial, and economic development and advancement in civilization. (Note Acts
Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian
Tribes, defines the aim of the Government towards the non-Christian people in the
following unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos
and foster by all adequate means and in a systematical, rapid, and complete manner
the moral, material, economic, social, and political development of those regions,
always having in view the aim of rendering permanent the mutual intelligence
between, and complete fusion of, all the Christian and non-Christian elements
populating the provinces of the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States,
proper wards of the Filipino people? By the fostering care of a wise Government,
may not these unfortunates advance in the "habits and arts of civilization?" Would it
be advisable for the courts to intrude upon a plan, carefully formulated, and
apparently working out for the ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the
Government is evident. Here, we have on the Island of Mindoro, the Manguianes,
leading a nomadic life, making depredations on their more fortunate neighbors,
uneducated in the ways of civilization, and doing nothing for the advancement of the
Philippine Islands. What the Government wished to do by bringing than into a
reservation was to gather together the children for educational purposes, and to
improve the health and morals was in fine, to begin the process of civilization.
this method was termed in Spanish times, "bringing under the bells." The same idea
adapted to the existing situation, has been followed with reference to the Manguianes
and other peoples of the same class, because it required, if they are to be improved,
that they be gathered together. On these few reservations there live under restraint in

some cases, and in other instances voluntarily, a few thousands of the uncivilized
people. Segregation really constitutes protection for the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically, we
know that the axiom is not precisely accurate. The Manguianes, for instance, are not
free, as civilized men are free, and they are not the equals of their more fortunate
brothers. True, indeed, they are citizens, with many but not all the rights which
citizenship implies. And true, indeed, they are Filipinos. But just as surely, the
Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag
upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of
the Legislature in enacting the law, and of the executive branch in enforcing it, are
again plain. Settlers in Mindoro must have their crops and persons protected from
predatory men, or they will leave the country. It is no argument to say that such
crimes are punished by the Penal Code, because these penalties are imposed after
commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive
regions, the Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the
State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to
protect itself from destruction must prod on the laggard and the sluggard. The great
law of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization, they
(the manguianes) are engaged in the works of destruction burning and destroying
the forests and making illegal caigins thereon. Not bringing any benefit to the State
but instead injuring and damaging its interests, what will ultimately become of these
people with the sort of liberty they wish to preserve and for which they are now
fighting in court? They will ultimately become a heavy burden to the State and on
account of their ignorance they will commit crimes and make depredations, or if not
they will be subjected to involuntary servitude by those who may want to abuse
them.
There is no doubt in my mind that this people a right conception of liberty and does
not practice liberty in a rightful way. They understand liberty as the right to do
anything they will going from one place to another in the mountains, burning and
destroying forests and making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can they
allege that they are being deprived thereof without due process of law?

18

xxx

xxx

xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty
without due process of law' apply to a class of persons who do not have a correct
idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class
of persons as to what liberty is. It will mean, in the case at bar, that the Government
should not adopt any measures looking to the welfare and advancement of the class
of persons in question. It will mean that this people should be let along in the
mountains and in a permanent state of savagery without even the remotest hope of
coming to understand liberty in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government has
been placed in the alternative of either letting them alone or guiding them in the path
of civilization. The latter measure was adopted as the one more in accord with
humanity and with national conscience.
xxx

xxx

xxx

The national legislation on the subject of non-Christian people has tended more and
more towards the education and civilization of such people and fitting them to be
citizens. The progress of those people under the tutelage of the Government is indeed
encouraging and the signs of the times point to a day which is not far distant when
they will become useful citizens. In the light of what has already been accomplished
which has been winning the gratitude of most of the backward people, shall we give
up the noble work simply because a certain element, believing that their personal
interests would be injured by such a measure has come forward and challenged the
authority of the Government to lead this people in the pat of civilization? Shall we,
after expending sweat, treasure, and even blood only to redeem this people from the
claws of ignorance and superstition, now willingly retire because there has been
erroneously invoked in their favor that Constitutional guaranty that no person shall
be deprived of his liberty without due process of law? To allow them to successfully
invoke that Constitutional guaranty at this time will leave the Government without
recourse to pursue the works of civilizing them and making them useful citizens.
They will thus left in a permanent state of savagery and become a vulnerable point to
attack by those who doubt, nay challenge, the ability of the nation to deal with our
backward brothers.
The manguianes in question have been directed to live together at Tigbao. There they
are being taught and guided to improve their living conditions. They are being made
to understand that they object of the government is to organize them politically into
fixed and permanent communities. They are being aided to live and work. Their

children are being educated in a school especially established for them. In short,
everything is being done from them in order that their advancement in civilization
and material prosperity may be assured. Certainly their living together in Tigbao
does not make them slaves or put them in a condition compelled to do services for
another. They do not work for anybody but for themselves. There is, therefore, no
involuntary servitude.
But they are compelled to live there and prohibited from emigrating to some other
places under penalty of imprisonment. Attention in this connection is invited to the
fact that this people, living a nomadic and wayfaring life, do not have permanent
individual property. They move from one place to another as the conditions of living
warrants, and the entire space where they are roving about is the property of the
nation, the greater part being lands of public domain. Wandering from one place to
another on the public lands, why can not the government adopt a measure to
concentrate them in a certain fixed place on the public lands, instead of permitting
them to roam all over the entire territory? This measure is necessary both in the
interest of the public as owner of the lands about which they are roving and for the
proper accomplishment of the purposes and objectives of the government. For as
people accustomed to nomadic habit, they will always long to return to the
mountains and follow a wayfaring life, and unless a penalty is provinced for, you can
not make them live together and the noble intention of the Government of organizing
them politically will come to naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific objections
and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go
where he pleases. Could be not, however, be kept away from certain localities ? To
furnish an example from the Indian legislation. The early Act of Congress of 1802 (2
U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess
absolute freedom of locomotion. Again the same law provided for the apprehension
of marauding Indians. Without any doubt, this law and other similar were accepted
and followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official.
What, it is asked, would be the remedy of any oppressed Manguian? The answer
would naturally be that the official into whose hands are given the enforcement of
the law would have little or not motive to oppress these people; on the contrary, the
presumption would all be that they would endeavor to carry out the purposes of the
law intelligently and patriotically. If, indeed, they did ill-treat any person thus

19

confined, there always exists the power of removal in the hands of superior officers,
and the courts are always open for a redress of grievances. When, however, only the
validity of the law is generally challenged and no particular case of oppression is
called to the attention of the courts, it would seems that the Judiciary should not
unnecessarily hamper the Government in the accomplishment of its laudable
purpose.
The question is above all one of sociology. How far, consistently with freedom, may
the right and liberties of the individual members of society be subordinated to the
will of the Government? It is a question which has assailed the very existence of
government from the beginning of time. Now purely an ethical or philosophical
subject, nor now to be decided by force, it has been transferred to the peaceful forum
of the Judiciary. In resolving such an issue, the Judiciary must realize that the very
existence of government renders imperatives a power to restrain the individual to
some extent, dependent, of course, on the necessities of the class attempted to be
benefited. As to the particular degree to which the Legislature and the Executive can
go in interfering with the rights of the citizen, this is, and for a along time to come
will be, impossible for the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as
axioms of economics and political theory, are of the past. The modern period has
shown as widespread belief in the amplest possible demonstration of governmental
activity. The courts unfortunately have sometimes seemed to trial after the other two
branches of the government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts cannot
fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an
unusual exercise of that power. But a great malady requires an equally drastic
remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered without
when the degree of civilization of the Manguianes is considered. They are restrained
for their own good and the general good of the Philippines. Nor can one say that due
process of law has not been followed. To go back to our definition of due process of
law and equal protection of the law, there exists a law ; the law seems to be
reasonable; it is enforced according to the regular methods of procedure prescribed;
and it applies alike to all of a class.
As a point which has been left for the end of this decision and which, in case of
doubt, would lead to the determination that section 2145 is valid. it the attitude
which the courts should assume towards the settled policy of the Government. In a
late decision with which we are in full accord, Gambles vs. Vanderbilt University
(200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of
Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every
really new question that comes before the courts is, in the last analysis, determined
on that theory, when not determined by differentiation of the principle of a prior case
or line of cases, or by the aid of analogies furnished by such prior case. In balancing
conflicting solutions, that one is perceived to tip the scales which the court believes
will best promote the public welfare in its probable operation as a general rule or
principle. But public policy is not a thing inflexible. No court is wise enough to
forecast its influence in all possible contingencies. Distinctions must be made from
time to time as sound reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called
non-Christians has been in vain, if we fail to realize that a consistent governmental
policy has been effective in the Philippines from early days to the present. The idea
to unify the people of the Philippines so that they may approach the highest
conception of nationality. If all are to be equal before the law, all must be
approximately equal in intelligence. If the Philippines is to be a rich and powerful
country, Mindoro must be populated, and its fertile regions must be developed. The
public policy of the Government of the Philippine Islands is shaped with a view to
benefit the Filipino people as a whole. The Manguianes, in order to fulfill this
governmental policy, must be confined for a time, as we have said, for their own
good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the
best considered case is toward non-interference on the part of the courts whenever
political ideas are the moving consideration. Justice Holmes, in one of the aphorisms
for which he is justly famous, said that "constitutional law, like other mortal
contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in
the final decision of the many grave questions which this case presents, the courts
must take "a chance," it should be with a view to upholding the law, with a view to
the effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad conception
which will make the courts as progressive and effective a force as are the other
departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative
Code does not deprive a person of his liberty without due process of law and does
not deny to him the equal protection of the laws, and that confinement in reservations
in accordance with said section does not constitute slavery and involuntary servitude.
We are further of the opinion that section 2145 of the Administrative Code is a
legitimate exertion of the police power, somewhat analogous to the Indian policy of
the United States. Section 2145 of the Administrative Code of 1917 is constitutional.

20

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas


corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be
taxes against petitioners. So ordered.
[G.R. No. 111953. December 12, 1997]
HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal
Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department
of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity
as General Manager of Philippine Ports Authority, petitioners, vs. UNITED
HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS
ASSOCIATION, respondents.
DECISION
ROMERO, J.:
In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of
appointment of harbor pilots to one year subject to yearly renewal or cancellation,
did the Philippine Ports Authority (PPA) violate respondents right to exercise their
profession and their right to due process of law?
The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On
December 23, 1975, Presidential Decree No. 857 was issued revising the PPAs
charter. Pursuant to its power of control, regulation, and supervision of pilots and the
pilotage profession, [1] the PPA promulgated PPA-AO-03-85 [2] on March 21, 1985,
which embodied the Rules and Regulations Governing Pilotage Services, the
Conduct of Pilots and Pilotage Fees in Philippine Ports. These rules mandate, inter
alia, that aspiring pilots must be holders of pilot licenses [3] and must train as
probationary pilots in outports for three months and in the Port of Manila for four
months. It is only after they have achieved satisfactory performance [4] that they are
given permanent and regular appointments by the PPA itself [5] to exercise harbor
pilotage until they reach the age of 70, unless sooner removed by reason of mental or
physical unfitness by the PPA General Manager. [6] Harbor pilots in every harbor
district are further required to organize themselves into pilot associations which
would make available such equipment as may be required by the PPA for effective
pilotage services. In view of this mandate, pilot associations invested in floating,
communications, and office equipment. In fact, every new pilot appointed by the
PPA automatically becomes a member of a pilot association and is required to pay a
proportionate equivalent equity or capital before being allowed to assume his duties,
as reimbursement to the association concerned of the amount it paid to his
predecessor.
Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 0492 [7] on July 15, 1992, whose avowed policy was to instill effective discipline and

Arellano, C.J., Torres and Avancea, JJ., concur.


thereby afford better protection to the port users through the improvement of pilotage
services. This was implemented by providing therein that all existing regular
appointments which have been previously issued either by the Bureau of Customs or
the PPA shall remain valid up to 31 December 1992 only and that all appointments to
harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of
one (1) year from date of effectivity subject to yearly renewal or cancellation by the
Authority after conduct of a rigid evaluation of performance.
On August 12, 1992, respondents United Harbor Pilots Association and the Manila
Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92
before the Department of Transportation and Communication, but they were
informed by then DOTC Secretary Jesus B. Garcia that the matter of reviewing,
recalling or annulling PPAs administrative issuances lies exclusively with its Board
of Directors as its governing body.
Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 [8]
which laid down the criteria or factors to be considered in the reappointment of
harbor pilots, viz.: (1) Qualifying Factors: [9] safety record and physical/mental
medical exam report and (2) Criteria for Evaluation: [10] promptness in servicing
vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot,
average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and
age.
Respondents reiterated their request for the suspension of the implementation of
PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was
within the jurisdiction of the Board of Directors of the PPA. Compas appealed this
ruling to the Office of the President (OP), reiterating his arguments before the
DOTC.
On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance
the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said
administrative order was issued in the exercise of its administrative control and
supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857, as
amended, and it, along with its implementing guidelines, was intended to restore
order in the ports and to improve the quality of port services.
On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal
Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining
order issued earlier. [11] He concluded that PPA-AO No. 04-92 applied to all harbor
pilots and, for all intents and purposes, was not the act of Dayan, but of the PPA,

21

which was merely implementing Section 6 of P.D. No. 857, mandating it to control,
regulate and supervise pilotage and conduct of pilots in any port district.

2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are
declared null and void;

On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its
implementing memoranda and circulars, Secretary Corona opined that:

3. The respondents are permanently enjoined from implementing PPA Administrative


Order 04-92 and its implementing Memoranda, Circulars and Orders.

The exercise of ones profession falls within the constitutional guarantee against
wrongful deprivation of, or interference with, property rights without due process. In
the limited context of this case, PPA-AO 04-92 does not constitute a wrongful
interference with, let alone a wrongful deprivation of, the property rights of those
affected thereby. As may be noted, the issuance aims no more than to improve
pilotage services by limiting the appointment to harbor pilot positions to one year,
subject to renewal or cancellation after a rigid evaluation of the appointees
performance.

No costs.

PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of
their profession in PPAs jurisdictional area. (Emphasis supplied)
Finally, as regards the alleged absence of ample prior consultation before the
issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No.
857, which merely requires the PPA to consult with relevant Government agencies.
Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the
Department of Public Works and Highways, the Department of Finance, and the
Department of Environment and Natural Resources, as well as the Director-General
of the National Economic Development Agency, the Administrator of the Maritime
Industry Authority (MARINA), and the private sector representative who, due to his
knowledge and expertise, was appointed by the President to the Board, he concluded
that the law has been sufficiently complied with by the PPA in issuing the assailed
administrative order.
Consequently, respondents filed a petition for certiorari, prohibition and injunction
with prayer for the issuance of a temporary restraining order and damages, before
Branch 6 of the Regional Trial Court of Manila, which was docketed as Civil Case
No. 93-65673. On September 6, 1993, the trial court rendered the following
judgment: [12]
WHEREFORE, for all the foregoing, this Court hereby rules that:
1. Respondents (herein petitioners) have acted in excess of jurisdiction and with
grave abuse of discretion and in a capricious, whimsical and arbitrary manner in
promulgating PPA Administrative Order 04-92 including all its implementing
Memoranda, Circulars and Orders;

SO ORDERED.
The court a quo pointed out that the Bureau of Customs, the precursor of the PPA,
recognized pilotage as a profession and, therefore, a property right under Callanta v.
Carnation Philippines, Inc. [13] Thus, abbreviating the term within which that
privilege may be exercised would be an interference with the property rights of the
harbor pilots. Consequently, any withdrawal or alteration of such property right must
be strictly made in accordance with the constitutional mandate of due process of law.
This was apparently not followed by the PPA when it did not conduct public hearings
prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it
only after its publication in the newspapers. From this decision, petitioners elevated
their case to this Court on certiorari.
After carefully examining the records and deliberating on the arguments of the
parties, the Court is convinced that PPA-AO No. 04-92 was issued in stark disregard
of respondents right against deprivation of property without due process of law.
Consequently, the instant petition must be denied.
Section 1 of the Bill of Rights lays down what is known as the due process clause of
the Constitution, viz.:
SECTION 1. No person shall be deprived of life, liberty, or property without due
process of law, x x x.
In order to fall within the aegis of this provision, two conditions must concur,
namely, that there is a deprivation and that such deprivation is done without proper
observance of due process. When one speaks of due process of law, however, a
distinction must be made between matters of procedure and matters of substance. In
essence, procedural due process refers to the method or manner by which the law is
enforced, while substantive due process requires that the law itself, not merely the
procedures by which the law would be enforced, is fair, reasonable, and just. [14]
PPA-AO No. 04-92 must be examined in light of this distinction.
Respondents argue that due process was not observed in the adoption of PPA-AO
No. 04-92 allegedly because no hearing was conducted whereby relevant
government agencies and the pilots themselves could ventilate their views. They are

22

obviously referring to the procedural aspect of the enactment. Fortunately, the Court
has maintained a clear position in this regard, a stance it has stressed in the recent
case of Lumiqued v. Hon. Exevea, [15] where it declared that (a)s long as a party
was given the opportunity to defend his interests in due course, he cannot be said to
have been denied due process of law, for this opportunity to be heard is the very
essence of due process. Moreover, this constitutional mandate is deemed satisfied if a
person is granted an opportunity to seek reconsideration of the action or ruling
complained of.
In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times
[16] before the matter was finally elevated to this Tribunal. Their arguments on this
score, however, fail to persuade. While respondents emphasize that the Philippine
Coast Guard, which issues the licenses of pilots after administering the pilots
examinations, was not consulted, [17] the facts show that the MARINA, which took
over the licensing function of the Philippine Coast Guard, was duly represented in
the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being
no matters of naval defense involved in the issuance of the administrative order, the
Philippine Coast Guard need not be consulted.[18]
Neither does the fact that the pilots themselves were not consulted in any way taint
the validity of the administrative order. As a general rule, notice and hearing, as the
fundamental requirements of procedural due process, are essential only when an
administrative body exercises its quasi-judicial function. In the performance of its
executive or legislative functions, such as issuing rules and regulations, an
administrative body need not comply with the requirements of notice and hearing.
[19]
Upon the other hand, it is also contended that the sole and exclusive right to the
exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said
right has become vested and can only be withdrawn or shortened by observing the
constitutional mandate of due process of law. Their argument has thus shifted from
the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet
the condition set by the organic law.
There is no dispute that pilotage as a profession has taken on the nature of a property
right. Even petitioner Corona recognized this when he stated in his March 17, 1993,
decision that (t)he exercise of ones profession falls within the constitutional
guarantee against wrongful deprivation of, or interference with, property rights
without due process. [20] He merely expressed the opinion that (i)n the limited
context of this case, PPA-AO 04-92 does not constitute a wrongful interference with,
let alone a wrongful deprivation of, the property rights of those affected thereby, and
that PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor
pilots of their profession. As will be presently demonstrated, such supposition is

gravely erroneous and tends to perpetuate an administrative order which is not only
unreasonable but also superfluous.
Pilotage, just like other professions, may be practiced only by duly licensed
individuals. Licensure is the granting of license especially to practice a profession. It
is also the system of granting licenses (as for professional practice) in accordance
with established standards. [21] A license is a right or permission granted by some
competent authority to carry on a business or do an act which, without such license,
would be illegal. [22]
Before harbor pilots can earn a license to practice their profession, they literally have
to pass through the proverbial eye of a needle by taking, not one but five
examinations, each followed by actual training and practice. Thus, the court a quo
observed:
Petitioners (herein respondents) contend, and the respondents (herein petitioners) do
not deny, that here (sic) in this jurisdiction, before a person can be a harbor pilot, he
must pass five (5) government professional examinations, namely, (1) For Third
Mate and after which he must work, train and practice on board a vessel for at least a
year; (2) For Second Mate and after which he must work, train and practice for at
least a year; (3) For Chief Mate and after which he must work, train and practice for
at least a year; (4) For a Master Mariner and after which he must work as Captain of
vessels for at least two (2) years to qualify for an examination to be a pilot; and
finally, of course, that given for pilots.
Their license is granted in the form of an appointment which allows them to engage
in pilotage until they retire at the age 70 years. This is a vested right. Under the terms
of PPA-AO No. 04-92, (a)ll existing regular appointments which have been
previously issued by the Bureau of Customs or the PPA shall remain valid up to 31
December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage
districts shall, henceforth, be only for a term of one (1) year from date of effectivity
subject to renewal or cancellation by the Authority after conduct of a rigid evaluation
of performance.
It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor
pilots to enjoy their profession before their compulsory retirement. In the past, they
enjoyed a measure of security knowing that after passing five examinations and
undergoing years of on-the-job training, they would have a license which they could
use until their retirement, unless sooner revoked by the PPA for mental or physical
unfitness. Under the new issuance, they have to contend with an annual cancellation
of their license which can be temporary or permanent depending on the outcome of
their performance evaluation. Veteran pilots and neophytes alike are suddenly
confronted with one-year terms which ipso facto expire at the end of that period.
Renewal of their license is now dependent on a rigid evaluation of performance

23

which is conducted only after the license has already been cancelled. Hence, the use
of the term renewal. It is this pre-evaluation cancellation which primarily makes
PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a
deprivation of property without due process of law.
The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already
covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in
pointing out that PPA-AO No. 04-92 is a surplusage [23] and, therefore, an
unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the
Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and
Pilotage Fees in Philippine Ports. It provides, inter alia, for the qualification,
appointment, performance evaluation, disciplining and removal of harbor pilots matters which are duplicated in PPA-AO No. 04-92 and its implementing
memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92
must be struck down.

Executive Secretary v CA G.R. No. 131719. May 25, 2004.

Finally, respondents insinuation that then PPA General Manager Dayan was
responsible for the issuance of the questioned administrative order may have some
factual basis; after all, power and authority were vested in his office to propose rules
and regulations. The trial courts finding of animosity between him and private
respondents might likewise have a grain of truth. Yet the number of cases filed in
court between private respondents and Dayan, including cases which have reached
this Court, cannot certainly be considered the primordial reason for the issuance of
PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be
presumed to have acted in accordance with law and the best of professional motives.
In any event, his actions are certainly always subject to scrutiny by higher
administrative authorities.
WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision
of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is
AFFIRMED. No pronouncement as to costs.
SO ORDERED.
a temporary restraining order enjoining the respondents from enforcing Section 6
subsection (i), Section 6 subsection (k) and paragraphs 15 and 16 thereof, Section 8,
Section 10, paragraphs 1 and 2, and Sections 11 and 40 of Rep. Act No. 8042.

7/6/2010
0 Comments
Facts: The Omnibus Rules and Regulations Implementing the Migrant Workers and
Overseas Filipino Act of 1995 RA 8042 was, thereafter, published in the April 7,
1996 issue of the Manila Bulletin. However, even before the law took effect, the
Asian Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on July 17,
1995, a petition for declaratory relief under Rule 63 of the Rules of Court with the
Regional Trial Court of Quezon City to declare as unconstitutional Section 2,
paragraph (g), Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a)
and (b), and Sections 9 and 10 of the law, with a plea for the issuance of a temporary
restraining order and/or writ of preliminary injunction enjoining the respondents
therein from enforcing the assailed provisions of the law.
Peitioner claims that great majority of the duly licensed recruitment agencies have
stopped or suspended their operations for fear of being prosecuted under the
provisions of a law that are unjust and unconstitutional.
On August 1, 1995, the trial court issued a temporary restraining order effective
for a period of only twenty (20) days therefrom. After the petitioners filed their
comment on the petition, the ARCO-Phil. filed an amended petition, the amendments
consisting in the inclusion in the caption thereof eleven (11) other corporations
which it alleged were its members and which it represented in the suit, and a plea for

The respondent averred that the aforequoted provisions of Rep. Act No. 8042
violate Section 1, Article III of the Constitution. 5 According to the respondent,
Section 6(g) and (i) discriminated against unskilled workers and their families and,
as such, violated the equal protection clause, as well as Article II, Section 12 6 and
Article XV, Sections 1 7 and 3(3) of the Constitution. 8 As the law encouraged the
deployment of skilled Filipino workers, only overseas skilled workers are granted
rights. The respondent stressed that unskilled workers also have the right to seek
employment abroad.
According to the respondent, the right of unskilled workers to due process is
violated because they are prevented from finding employment and earning a living
abroad. It cannot be argued that skilled workers are immune from abuses by
employers, while unskilled workers are merely prone to such abuses. It was pointed
out that both skilled and unskilled workers are subjected to abuses by foreign
employers. Furthermore, the prohibition of the deployment of unskilled workers
abroad would only encourage fly-by-night illegal recruiters.
According to the respondent, the grant of incentives to service contractors and
manning agencies to the exclusion of all other licensed and authorized recruiters is
an invalid classification. Licensed and authorized recruiters are thus deprived of their
right to property and due process and to the "equality of the person." It is
understandable for the law to prohibit illegal recruiters, but to discriminate against
licensed and registered recruiters is unconstitutional.

24

The respondent, likewise, alleged that Section 6, subsections (a) to (m) is


unconstitutional because licensed and authorized recruitment agencies are placed on
equal footing with illegal recruiters. It contended that while the Labor Code
distinguished between recruiters who are holders of licenses and non-holders thereof
in the imposition of penalties, Rep. Act No. 8042 does not make any distinction. The
penalties in Section 7(a) and (b) being based on an invalid classification are,
therefore, repugnant to the equal protection clause, besides being excessive; hence,
such penalties are violative of Section 19(1), Article III of the Constitution. 9 It was
also pointed out that the penalty for officers/officials/employees of recruitment
agencies who are found guilty of economic sabotage or large-scale illegal
recruitment under Rep. Act No. 8042 is life imprisonment.
The respondent also posited that Section 6(m) and paragraphs (15) and (16),
Sections 8, 9 and 10, paragraph 2 of the law violate Section 22, Article III of the
Constitution 10 prohibiting ex-post facto laws and bills of attainder. This is because
the provisions presume that a licensed and registered recruitment agency is guilty of
illegal recruitment involving economic sabotage, upon a finding that it committed
any of the prohibited acts under the law. Furthermore, officials, employees and their
relatives are presumed guilty of illegal recruitment involving economic sabotage
upon such finding that they committed any of the said prohibited acts.
The respondent further argued that the 90-day period in Section 10, paragraph (1)
within which a labor arbiter should decide a money claim is relatively short, and
could deprive licensed and registered recruiters of their right to due process. The
period within which the summons and the complaint would be served on foreign
employees and, thereafter, the filing of the answer to the complaint would take more
than 90 days. This would thereby shift on local licensed and authorized recruiters the
burden of proving the defense of foreign employers.
The respondent asserted that the following provisions of the law are unconstitutional:
SEC. 9. Venue. A criminal action arising from illegal recruitment as defined
herein shall be filed with the Regional Trial Court of the province or city where the
offense was committed or where the offended party actually resides at the time of the
commission of the offense: Provided, That the court where the criminal action is first
filed shall acquire jurisdiction to the exclusion of other courts: Provided, however,
That the aforestated provisions shall also apply to those criminal actions that have
already been filed in court at the time of the effectivity of this Act.
In their answer to the petition, the petitioners alleged, inter alia, that (a) the
respondent has no cause of action for a declaratory relief; (b) the petition was
premature as the rules implementing Rep. Act No. 8042 not having been released as
yet; (c) the assailed provisions do not violate any provisions of the Constitution; and,

(d) the law was approved by Congress in the exercise of the police power of the
State.
In opposition to the respondent's plea for injunctive relief, the petitioners averred
that: As earlier shown, the amended petition for declaratory relief is devoid of merit
for failure of petitioner to demonstrate convincingly that the assailed law is
unconstitutional, apart from the defect and impropriety of the petition.
On December 5, 1997, the appellate court came out with a four-page decision
dismissing the petition and affirming the assailed order and writ of preliminary
injunction issued by the trial court. The appellate court, likewise, denied the
petitioners' motion for reconsideration of the said decision.
Issue: The core issue in this case is whether or not the trial court committed grave
abuse of its discretion amounting to excess or lack of jurisdiction in issuing the
assailed order and the writ of preliminary injunction on a bond of only P50,000; and
Whether or not the appellate court erred in affirming the trial court's order and the
writ of preliminary injunction issued by it.
Held: IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed decision of the appellate court is REVERSED AND SET ASIDE. The Order
of the Regional Trial Court dated August 21, 1995 in Civil Case No. Q-95-24401 and
the Writ of Preliminary Injunction issued by it in the said case on August 24, 1995
are NULLIFIED. No costs.
SO ORDERED.
Ratio: The matter of whether to issue a writ of preliminary injunction or not is
addressed to the sound discretion of the trial court. However, if the court commits
grave abuse of its discretion in issuing the said writ amounting to excess or lack of
jurisdiction, the same may be nullified via a writ of certiorari and prohibition.
The possible unconstitutionality of a statute, on its face, does not of itself justify
an injunction against good faith attempts to enforce it, unless there is a showing of
bad faith, harassment, or any other unusual circumstance that would call for
equitable relief. The "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last resort,"
and is generally disfavored.
To be entitled to a preliminary injunction to enjoin the enforcement of a law
assailed to be unconstitutional, the party must establish that it will suffer irreparable
harm in the absence of injunctive relief and must demonstrate that it is likely to

25

succeed on the merits, or that there are sufficiently serious questions going to the
merits and the balance of hardships tips decidedly in its favor.
Just as the incidental "chilling effect" of such statutes does not automatically
render them unconstitutional, so the chilling effect that admittedly can result from
the very existence of certain laws on the statute books does not in itself justify
prohibiting the State from carrying out the important and necessary task of enforcing
these laws against socially harmful conduct that the State believes in good faith to be
punishable under its laws and the Constitution.
One who attacks a statute, alleging unconstitutionality must prove its invalidity
beyond reasonable doubt (Caleon v. Agus Development Corporation, 207 SCRA
748). All reasonable doubts should be resolved in favor of the constitutionality of a
statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is based on
the doctrine of separation of powers which enjoin upon each department a becoming
respect for the acts of the other departments (Garcia vs. Executive Secretary, 204
SCRA 516 [1991]).
In view of petitioner's standing
The petitioners contend that the respondent has no locus standi. It is a non-stock,
non-profit organization; hence, not the real party-in-interest as petitioner in the
action. Although the respondent filed the petition in the Regional Trial Court in
behalf of licensed and registered recruitment agencies, it failed to adduce in evidence
a certified copy of its Articles of Incorporation and the resolutions of the said
members authorizing it to represent the said agencies in the proceedings. Neither is
the suit of the respondent a class suit so as to vest in it a personality to assail Rep.
Act No. 8042; the respondent is service-oriented while the recruitment agencies it
purports to represent are profit-oriented.
The petition is meritorious. The respondent has locus standi to file the petition in
the RTC in representation of the eleven licensed and registered recruitment agencies
impleaded in the amended petition. The modern view is that an association has
standing to complain of injuries to its members. This view fuses the legal identity of
an association with that of its members. 16 An association has standing to file suit for
its workers despite its lack of direct interest if its members are affected by the action.
An organization has standing to assert the concerns of its constituents.
We note that, under its Articles of Incorporation, the respondent was organized for
the purposes inter alia of promoting and supporting the growth and development of
the manpower recruitment industry, both in the local and international levels;
providing, creating and exploring employment opportunities for the exclusive benefit
of its general membership; enhancing and promoting the general welfare and
protection of Filipino workers; and, to act as the representative of any individual,

company, entity or association on matters related to the manpower recruitment


industry, and to perform other acts and activities necessary to accomplish the
purposes embodied therein.
In view of standing in behalf of unskilled workers
However, the respondent has no locus standi to file the petition for and in behalf
of unskilled workers. We note that it even failed to implead any unskilled workers in
its petition. Furthermore, in failing to implead, as parties-petitioners, the eleven
licensed and registered recruitment agencies it claimed to represent, the respondent
failed to comply with Section 2 of Rule 63 20 of the Rules of Court. Nevertheless,
since the eleven licensed and registered recruitment agencies for which the
respondent filed the suit are specifically named in the petition, the amended petition
is deemed amended to avoid multiplicity of suits.
In view of retroactivity
In People v. Diaz, 24 we held that Rep. Act No. 8042 is but an amendment of the
Labor Code of the Philippines and is not an ex-post facto law because it is not
applied retroactively.
In view of equal protection clause
In any case, where the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much wider. To pretend that
licensing or accreditation requirements violates the due process clause is to ignore
the settled practice, under the mantle of the police power, of regulating entry to the
practice of various trades or professions. Professionals leaving for abroad are
required to pass rigid written and practical exams before they are deemed fit to
practice their trade.
Finally, it is a futile gesture on the part of petitioners to invoke the nonimpairment clause of the Constitution to support their argument that the government
cannot enact the assailed regulatory measures because they abridge the freedom to
contract.
The equal protection clause is directed principally against undue favor and
individual or class privilege. It is not intended to prohibit legislation which is limited
to the object to which it is directed or by the territory in which it is to operate. It does
not require absolute equality, but merely that all persons be treated alike under like
conditions both as to privileges conferred and liabilities imposed.
In view of the VALIDITY of Sec. 6 of RA 8042

26

The validity of Section 6 of R.A. No. 8042 which provides that employees of
recruitment agencies may be criminally liable for illegal recruitment has been upheld
in People v. Chowdury: An employee of a company or corporation engaged in illegal
recruitment may be held liable as principal, together with his employer, if it is shown
that he actively and consciously participated in illegal recruitment.

respondent even failed to adduce any evidence to prove irreparable injury because of
the enforcement of Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension
that, because of time constraints, its members would have to defend foreign
employees in cases before the Labor Arbiter is based on speculations. Even if true,
such inconvenience or difficulty is hardly irreparable injury.

By its rulings, the Court thereby affirmed the validity of the assailed penal and
procedural provisions of Rep. Act No. 8042, including the imposable penalties
therefor. Until the Court, by final judgment, declares that the said provisions are
unconstitutional, the enforcement of the said provisions cannot be enjoined.

Preliminarily, the proliferation of illegal job recruiters and syndicates preying on


innocent people anxious to obtain employment abroad is one of the primary
considerations that led to the enactment of The Migrant Workers and Overseas
Filipinos Act of 1995. Aimed at affording greater protection to overseas Filipino
workers, it is a significant improvement on existing laws in the recruitment and
placement of workers for overseas employment.

Penalizing unlicensed and licensed recruitment agencies and their officers and
employees and their relatives employed in government agencies charged with the
enforcement of the law for illegal recruitment and imposing life imprisonment for
those who commit large scale illegal recruitment is not offensive to the Constitution.
The accused may be convicted of illegal recruitment and large scale illegal
recruitment only if, after trial, the prosecution is able to prove all the elements of the
crime charged.

By issuing the writ of preliminary injunction against the petitioners sans any
evidence, the trial court frustrated, albeit temporarily, the prosecution of illegal
recruiters and allowed them to continue victimizing hapless and innocent people
desiring to obtain employment abroad as overseas workers, and blocked the
attainment of the salutary policies 52 embedded in Rep. Act No. 8042.

The respondent merely speculated and surmised that licensed and registered
recruitment agencies would close shop and stop business operations because of the
assailed penal provisions of the law. A writ of preliminary injunction to enjoin the
enforcement of penal laws cannot be based on such conjectures or speculations. The
Ynot v IAC (1987) 148 SCRA 659
J. Cruz

The trial court committed a grave abuse of its discretion amounting to excess or
lack of jurisdiction in issuing the assailed order and writ of preliminary injunction. It
is for this reason that the Court issued a temporary restraining order enjoining the
enforcement of the writ of preliminary injunction issued by the trial court.

Facts:
Petitioner transported 6 caracbaos from Masbate to Iloilo in 1984 and these wer
confiscated by the station commander in Barotac, Iloilo for violating E.O. 626 A
which prohibits transportation of a carabao or carabeef from one province to another.
Confiscation will be a result of this.
The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a
writ of replevin upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the confiscation of the
carabaos and, since they could no longer be produced, ordered the confiscation of the
bond. The court also declined to rule on the constitutionality of the executive order,
as raise by the petitioner, for lack of authority and also for its presumed validity.
The same result was decided in the trial court.
In the Supreme Court, he then petitioned against the constitutionality of the E.O. due
to the outright confiscation without giving the owner the right to heard before an
impartial court as guaranteed by due process. He also challenged the improper
exercise of legislative power by the former president under Amendment 6 of the
1973 constitution wherein Marcos was given emergency powers to issue letters of
instruction that had the force of law.

Holding: The EO is unconstitutional. Petition granted.

Issue: Is the E.O. constitutional?

Ratio:
The lower courts are not prevented from examining the constitutionality of a law.
Constitutional grant to the supreme court to review.
Justice Laurel's said, courts should not follow the path of least resistance by simply
presuming the constitutionality of a law when it is questioned. On the contrary, they
should probe the issue more deeply, to relieve the abscess, and so heal the wound or
excise the affliction.
The challenged measure is denominated an executive order but it is really
presidential decree, promulgating a new rule instead of merely implementing an
existing law due to the grant of legislative authority over the president under
Amendment number 6.
Provisions of the constitution should be cast in precise language to avoid controvery.
In the due process clause, however, the wording was ambiguous so it would remain
resilient. This was due to the avoidance of an iron rule laying down a stiff
command for all circumstances. There was flexibility to allow it to adapt to every
situation with varying degrees at protection for the changing conditions.

27

Courts have also refrained to adopt a standard definition for due processlest they be
confined to its interpretation like a straitjacket.
There must be requirements of notice and hearing as a safeguard against
arbitrariness.
There are exceptions such as conclusive presumption which bars omission of
contrary evidence as long as such presumption is based on human experience or
rational connection between facts proved and fact presumed. An examples is a
passport of a person with a criminal offense cancelled without hearing.
The protection of the general welfare is the particular function of police power which
both restrains and is restrained by dure process. This power was invoked in 626-A, in
addition to 626 which prohibits slaughter of carabos with an exception.
While 626-A has the same lawful subjectas the original executive order, it cant be
said that it complies with the existence of a lawful method. The transport prohibition
and the purpose sought has a gap.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11390

March 26, 1918

EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,


vs.
VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng,
defendant-appellant.
Aitken and DeSelms for appellant.
Hartigan and Welch for appellee.
STREET, J.:
This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to
foreclose a mortgage upon various parcels of real property situated in the city of
Manila. The mortgage in question is dated June 16, 1906, and was executed by the
original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security
for a debt owing by him to the bank. Upon March 31, 1906, the debt amounted to
P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable
at the end of each quarter. It appears that the parties to this mortgage at that time
estimated the value of the property in question at P292,558, which was about
P75,000 in excess of the indebtedness. After the execution of this instrument by the
mortgagor, he returned to China which appears to have been his native country; and
he there died, upon January 29, 1810, without again returning to the Philippine
Islands.

Summary action may be taken in valid admin proceedings as procedural due process
is not juridical only due to the urgency needed to correct it.
There was no reason why the offense in the E.O. would not have been proved in a
court of justice with the accused acquired the rights in the constitution.
The challenged measure was an invalid exercise of police power because the method
toconfiscate carabos was oppressive.
Due process was violated because the owener was denied the right to be heard or his
defense and punished immediately.
This was a clear encroachment on judicial functions and against the separataion of
powers.
The policeman wasnt liable for damages since the law during that time was valid.

As the defendant was a nonresident at the time of the institution of the present action,
it was necessary for the plaintiff in the foreclosure proceeding to give notice to the
defendant by publication pursuant to section 399 of the Code of Civil Procedure. An
order for publication was accordingly obtained from the court, and publication was
made in due form in a newspaper of the city of Manila. At the same time that the
order of the court should deposit in the post office in a stamped envelope a copy of
the summons and complaint directed to the defendant at his last place of residence, to
wit, the city of Amoy, in the Empire of China. This order was made pursuant to the
following provision contained in section 399 of the Code of Civil Procedure:
In case of publication, where the residence of a nonresident or absent defendant is
known, the judge must direct a copy of the summons and complaint to be forthwith
deposited by the clerk in the post-office, postage prepaid, directed to the person to be
served, at his place of residence
Whether the clerk complied with this order does not affirmatively appear. There is,
however, among the papers pertaining to this case, an affidavit, dated April 4, 1908,
signed by Bernardo Chan y Garcia, an employee of the attorneys of the bank,
showing that upon that date he had deposited in the Manila post-office a registered
letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of
the complaint, the plaintiff's affidavit, the summons, and the order of the court
directing publication as aforesaid. It appears from the postmaster's receipt that
Bernardo probably used an envelope obtained from the clerk's office, as the receipt
purports to show that the letter emanated from the office.
The cause proceeded in usual course in the Court of First Instance; and the defendant
not having appeared, judgment was, upon July 2, 1908, taken against him by default.
Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision
it was recited that publication had been properly made in a periodical, but nothing

28

was said about this notice having been given mail. The court, upon this occasion,
found that the indebtedness of the defendant amounted to P249,355. 32, with interest
from March 31, 1908. Accordingly it was ordered that the defendant should, on or
before July 6, 1908, deliver said amount to the clerk of the court to be applied to the
satisfaction of the judgment, and it was declared that in case of the failure of the
defendant to satisfy the judgment within such period, the mortgage property located
in the city of Manila should be exposed to public sale. The payment contemplated in
said order was never made; and upon July 8, 1908, the court ordered the sale of the
property. The sale took place upon July 30, 1908, and the property was bought in by
the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by
the court.
About seven years after the confirmation of this sale, or to the precise, upon June 25,
1915, a motion was made in this cause by Vicente Palanca, as administrator of the
estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco,
wherein the applicant requested the court to set aside the order of default of July 2,
1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings
subsequent thereto. The basis of this application, as set forth in the motion itself, was
that the order of default and the judgment rendered thereon were void because the
court had never acquired jurisdiction over the defendant or over the subject of the
action.
At the hearing in the court below the application to vacate the judgment was denied,
and from this action of the court Vicente Planca, as administrator of the estate of the
original defendant, has appealed. No other feature of the case is here under
consideration than such as related to the action of the court upon said motion.
The case presents several questions of importance, which will be discussed in what
appears to be the sequence of most convenient development. In the first part of this
opinion we shall, for the purpose of argument, assume that the clerk of the Court of
First Instance did not obey the order of the court in the matter of mailing the papers
which he was directed to send to the defendant in Amoy; and in this connection we
shall consider, first, whether the court acquired the necessary jurisdiction to enable it
to proceed with the foreclosure of the mortgage and, secondly, whether those
proceedings were conducted in such manner as to constitute due process of law.
The word "jurisdiction," as applied to the faculty of exercising judicial power, is used
in several different, though related, senses since it may have reference (1) to the
authority of the court to entertain a particular kind of action or to administer a
particular kind of relief, or it may refer to the power of the court over the parties, or
(2) over the property which is the subject to the litigation.

The sovereign authority which organizes a court determines the nature and extent of
its powers in general and thus fixes its competency or jurisdiction with reference to
the actions which it may entertain and the relief it may grant.
Jurisdiction over the person is acquired by the voluntary appearance of a party in
court and his submission to its authority, or it is acquired by the coercive power of
legal process exerted over the person.
Jurisdiction over the property which is the subject of the litigation may result either
from a seizure of the property under legal process, whereby it is brought into the
actual custody of the law, or it may result from the institution of legal proceedings
wherein, under special provisions of law, the power of the court over the property is
recognized and made effective. In the latter case the property, though at all times
within the potential power of the court, may never be taken into actual custody at all.
An illustration of the jurisdiction acquired by actual seizure is found in attachment
proceedings, where the property is seized at the beginning of the action, or some
subsequent stage of its progress, and held to abide the final event of the litigation. An
illustration of what we term potential jurisdiction over the res, is found in the
proceeding to register the title of land under our system for the registration of land.
Here the court, without taking actual physical control over the property assumes, at
the instance of some person claiming to be owner, to exercise a jurisdiction in rem
over the property and to adjudicate the title in favor of the petitioner against all the
world.
In the terminology of American law the action to foreclose a mortgage is said to be a
proceeding quasi in rem, by which is expressed the idea that while it is not strictly
speaking an action in rem yet it partakes of that nature and is substantially such. The
expression "action in rem" is, in its narrow application, used only with reference to
certain proceedings in courts of admiralty wherein the property alone is treated as
responsible for the claim or obligation upon which the proceedings are based. The
action quasi rem differs from the true action in rem in the circumstance that in the
former an individual is named as defendant, and the purpose of the proceeding is to
subject his interest therein to the obligation or lien burdening the property. All
proceedings having for their sole object the sale or other disposition of the property
of the defendant, whether by attachment, foreclosure, or other form of remedy, are in
a general way thus designated. The judgment entered in these proceedings is
conclusive only between the parties.
In speaking of the proceeding to foreclose a mortgage the author of a well known
treaties, has said:
Though nominally against person, such suits are to vindicate liens; they proceed
upon seizure; they treat property as primarily indebted; and, with the qualification
above-mentioned, they are substantially property actions. In the civil law, they are

29

styled hypothecary actions, and their sole object is the enforcement of the lien
against the res; in the common law, they would be different in chancery did not treat
the conditional conveyance as a mere hypothecation, and the creditor's right ass an
equitable lien; so, in both, the suit is real action so far as it is against property, and
seeks the judicial recognition of a property debt, and an order for the sale of the res.
(Waples, Proceedings In Rem. sec. 607.)
It is true that in proceedings of this character, if the defendant for whom publication
is made appears, the action becomes as to him a personal action and is conducted as
such. This, however, does not affect the proposition that where the defendant fails to
appear the action is quasi in rem; and it should therefore be considered with
reference to the principles governing actions in rem.
There is an instructive analogy between the foreclosure proceeding and an action of
attachment, concerning which the Supreme Court of the United States has used the
following language:
If the defendant appears, the cause becomes mainly a suit in personam, with the
added incident, that the property attached remains liable, under the control of the
court, to answer to any demand which may be established against the defendant by
the final judgment of the court. But, if there is no appearance of the defendant, and
no service of process on him, the case becomes, in its essential nature, a proceeding
in rem, the only effect of which is to subject the property attached to the payment of
the defendant which the court may find to be due to the plaintiff. (Cooper vs.
Reynolds, 10 Wall., 308.)
In an ordinary attachment proceeding, if the defendant is not personally served, the
preliminary seizure is to, be considered necessary in order to confer jurisdiction upon
the court. In this case the lien on the property is acquired by the seizure; and the
purpose of the proceedings is to subject the property to that lien. If a lien already
exists, whether created by mortgage, contract, or statute, the preliminary seizure is
not necessary; and the court proceeds to enforce such lien in the manner provided by
law precisely as though the property had been seized upon attachment. (Roller vs.
Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that
in an attachment the property may be seized at the inception of the proceedings,
while in the foreclosure suit it is not taken into legal custody until the time comes for
the sale, does not materially affect the fundamental principle involved in both cases,
which is that the court is here exercising a jurisdiction over the property in a
proceeding directed essentially in rem.
Passing now to a consideration of the jurisdiction of the Court of First Instance in a
mortgage foreclosure, it is evident that the court derives its authority to entertain the
action primarily from the statutes organizing the court. The jurisdiction of the court,
in this most general sense, over the cause of action is obvious and requires no

comment. Jurisdiction over the person of the defendant, if acquired at all in such an
action, is obtained by the voluntary submission of the defendant or by the personal
service of process upon him within the territory where the process is valid. If,
however, the defendant is a nonresident and, remaining beyond the range of the
personal process of the court, refuses to come in voluntarily, the court never acquires
jurisdiction over the person at all. Here the property itself is in fact the sole thing
which is impleaded and is the responsible object which is the subject of the exercise
of judicial power. It follows that the jurisdiction of the court in such case is based
exclusively on the power which, under the law, it possesses over the property; and
any discussion relative to the jurisdiction of the court over the person of the
defendant is entirely apart from the case. The jurisdiction of the court over the
property, considered as the exclusive object of such action, is evidently based upon
the following conditions and considerations, namely: (1) that the property is located
within the district; (2) that the purpose of the litigation is to subject the property by
sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper
stage of the proceedings takes the property into custody, if necessary, and expose it
to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that
no other relief can be granted in this proceeding than such as can be enforced against
the property.
We may then, from what has been stated, formulated the following proposition
relative to the foreclosure proceeding against the property of a nonresident
mortgagor who fails to come in and submit himself personally to the jurisdiction of
the court: (I) That the jurisdiction of the court is derived from the power which it
possesses over the property; (II) that jurisdiction over the person is not acquired and
is nonessential; (III) that the relief granted by the court must be limited to such as
can be enforced against the property itself.
It is important that the bearing of these propositions be clearly apprehended, for there
are many expressions in the American reports from which it might be inferred that
the court acquires personal jurisdiction over the person of the defendant by
publication and notice; but such is not the case. In truth the proposition that
jurisdiction over the person of a nonresident cannot be acquired by publication and
notice was never clearly understood even in the American courts until after the
decision had been rendered by the Supreme Court of the United States in the leading
case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that decision,
and of other decisions which have subsequently been rendered in that and other
courts, the proposition that jurisdiction over the person cannot be thus acquired by
publication and notice is no longer open to question; and it is now fully established
that a personal judgment upon constructive or substituted service against a
nonresident who does not appear is wholly invalid. This doctrine applies to all kinds
of constructive or substituted process, including service by publication and personal
service outside of the jurisdiction in which the judgment is rendered; and the only
exception seems to be found in the case where the nonresident defendant has

30

expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher,
35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312
The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the
process from the tribunals of one State cannot run into other States or countries and
that due process of law requires that the defendant shall be brought under the power
of the court by service of process within the State, or by his voluntary appearance, in
order to authorize the court to pass upon the question of his personal liability. The
doctrine established by the Supreme Court of the United States on this point, being
based upon the constitutional conception of due process of law, is binding upon the
courts of the Philippine Islands. Involved in this decision is the principle that in
proceedings in rem or quasi in rem against a nonresident who is not served
personally within the state, and who does not appear, the relief must be confined to
the res, and the court cannot lawfully render a personal judgment against him.
(Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil
Cloth Co., 112 U. S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a
mortgage against a nonresident, upon whom service has been effected exclusively by
publication, no personal judgment for the deficiency can be entered. (Latta vs.
Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the judgment entered in the court
below offends against the principle just stated and that this judgment is void because
the court in fact entered a personal judgment against the absent debtor for the full
amount of the indebtedness secured by the mortgage. We do not so interpret the
judgment.
In a foreclosure proceeding against a nonresident owner it is necessary for the court,
as in all cases of foreclosure, to ascertain the amount due, as prescribed in section
256 of the Code of Civil Procedure, and to make an order requiring the defendant to
pay the money into court. This step is a necessary precursor of the order of sale. In
the present case the judgment which was entered contains the following words:
Because it is declared that the said defendant Engracio Palanca Tanquinyeng y
Limquingco, is indebted in the amount of P249,355.32, plus the interest, to the
'Banco Espanol-Filipino' . . . therefore said appellant is ordered to deliver the above
amount etc., etc.
This is not the language of a personal judgment. Instead it is clearly intended merely
as a compliance with the requirement that the amount due shall be ascertained and
that the evidence of this it may be observed that according to the Code of Civil
Procedure a personal judgment against the debtor for the deficiency is not to be
rendered until after the property has been sold and the proceeds applied to the
mortgage debt. (sec. 260).

The conclusion upon this phase of the case is that whatever may be the effect in other
respects of the failure of the clerk of the Court of First Instance to mail the proper
papers to the defendant in Amoy, China, such irregularity could in no wise impair or
defeat the jurisdiction of the court, for in our opinion that jurisdiction rest upon a
basis much more secure than would be supplied by any form of notice that could be
given to a resident of a foreign country.
Before leaving this branch of the case, we wish to observe that we are fully aware
that many reported cases can be cited in which it is assumed that the question of the
sufficiency of publication or notice in a case of this kind is a question affecting the
jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by
virtue of the publication. This phraseology was undoubtedly originally adopted by
the court because of the analogy between service by the publication and personal
service of process upon the defendant; and, as has already been suggested, prior to
the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of
the two forms of service was obscure. It is accordingly not surprising that the modes
of expression which had already been molded into legal tradition before that case
was decided have been brought down to the present day. But it is clear that the legal
principle here involved is not effected by the peculiar language in which the courts
have expounded their ideas.
We now proceed to a discussion of the question whether the supposed irregularity in
the proceedings was of such gravity as to amount to a denial of that "due process of
law" which was secured by the Act of Congress in force in these Islands at the time
this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions
involving the application of the constitutional provisions relating to due process of
law the Supreme Court of the United States has refrained from attempting to define
with precision the meaning of that expression, the reason being that the idea
expressed therein is applicable under so many diverse conditions as to make any
attempt ay precise definition hazardous and unprofitable. As applied to a judicial
proceeding, however, it may be laid down with certainty that the requirement of due
process is satisfied if the following conditions are present, namely; (1) There must be
a court or tribunal clothed with judicial power to hear and determine the matter
before it; (2) jurisdiction must be lawfully acquired over the person of the defendant
or over the property which is the subject of the proceeding; (3) the defendant must be
given an opportunity to be heard; and (4) judgment must be rendered upon lawful
hearing.
Passing at once to the requisite that the defendant shall have an opportunity to be
heard, we observe that in a foreclosure case some notification of the proceedings to
the nonresident owner, prescribing the time within which appearance must be made,
is everywhere recognized as essential. To answer this necessity the statutes generally
provide for publication, and usually in addition thereto, for the mailing of notice to
the defendant, if his residence is known. Though commonly called constructive, or

31

substituted service of process in any true sense. It is merely a means provided by law
whereby the owner may be admonished that his property is the subject of judicial
proceedings and that it is incumbent upon him to take such steps as he sees fit to
protect it. In speaking of notice of this character a distinguish master of
constitutional law has used the following language:
. . . if the owners are named in the proceedings, and personal notice is provided for, it
is rather from tenderness to their interests, and in order to make sure that the
opportunity for a hearing shall not be lost to them, than from any necessity that the
case shall assume that form. (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs.
Green, 193 U. S., 79, 80.)
It will be observed that this mode of notification does not involve any absolute
assurance that the absent owner shall thereby receive actual notice. The periodical
containing the publication may never in fact come to his hands, and the chances that
he should discover the notice may often be very slight. Even where notice is sent by
mail the probability of his receiving it, though much increased, is dependent upon the
correctness of the address to which it is forwarded as well as upon the regularity and
security of the mail service. It will be noted, furthermore, that the provision of our
law relative to the mailing of notice does not absolutely require the mailing of notice
unconditionally and in every event, but only in the case where the defendant's
residence is known. In the light of all these facts, it is evident that actual notice to the
defendant in cases of this kind is not, under the law, to be considered absolutely
necessary.
The idea upon which the law proceeds in recognizing the efficacy of a means of
notification which may fall short of actual notice is apparently this: Property is
always assumed to be in the possession of its owner, in person or by agent; and he
may be safely held, under certain conditions, to be affected with knowledge that
proceedings have been instituted for its condemnation and sale.
It is the duty of the owner of real estate, who is a nonresident, to take measures that
in some way he shall be represented when his property is called into requisition, and
if he fails to do this, and fails to get notice by the ordinary publications which have
usually been required in such cases, it is his misfortune, and he must abide the
consequences. (6 R. C. L., sec. 445 [p. 450]).

so that the result would be that the courts would be powerless to assist a citizen
against a nonresident. Such a result would be a deplorable one. (Quarl vs. Abbett,
102 Ind., 233; 52 Am. Rep., 662, 667.)
It is, of course universally recognized that the statutory provisions relative to
publication or other form of notice against a nonresident owner should be complied
with; and in respect to the publication of notice in the newspaper it may be stated
that strict compliance with the requirements of the law has been held to be essential.
In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137, 138), it
was held that where newspaper publication was made for 19 weeks, when the statute
required 20, the publication was insufficient.
With respect to the provisions of our own statute, relative to the sending of notice by
mail, the requirement is that the judge shall direct that the notice be deposited in the
mail by the clerk of the court, and it is not in terms declared that the notice must be
deposited in the mail. We consider this to be of some significance; and it seems to us
that, having due regard to the principles upon which the giving of such notice is
required, the absent owner of the mortgaged property must, so far as the due process
of law is concerned, take the risk incident to the possible failure of the clerk to
perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier
might possibly lose or destroy the parcel or envelope containing the notice before it
should reach its destination and be delivered to him. This idea seems to be
strengthened by the consideration that placing upon the clerk the duty of sending
notice by mail, the performance of that act is put effectually beyond the control of
the plaintiff in the litigation. At any rate it is obvious that so much of section 399 of
the Code of Civil Procedure as relates to the sending of notice by mail was complied
with when the court made the order. The question as to what may be the
consequences of the failure of the record to show the proof of compliance with that
requirement will be discussed by us further on.
The observations which have just been made lead to the conclusion that the failure of
the clerk to mail the notice, if in fact he did so fail in his duty, is not such an
irregularity, as amounts to a denial of due process of law; and hence in our opinion
that irregularity, if proved, would not avoid the judgment in this case. Notice was
given by publication in a newspaper and this is the only form of notice which the law
unconditionally requires. This in our opinion is all that was absolutely necessary to
sustain the proceedings.

It has been well said by an American court:


If property of a nonresident cannot be reached by legal process upon the constructive
notice, then our statutes were passed in vain, and are mere empty legislative
declarations, without either force, or meaning; for if the person is not within the
jurisdiction of the court, no personal judgment can be rendered, and if the judgment
cannot operate upon the property, then no effective judgment at all can be rendered,

It will be observed that in considering the effect of this irregularity, it makes a


difference whether it be viewed as a question involving jurisdiction or as a question
involving due process of law. In the matter of jurisdiction there can be no distinction
between the much and the little. The court either has jurisdiction or it has not; and if
the requirement as to the mailing of notice should be considered as a step antecedent
to the acquiring of jurisdiction, there could be no escape from the conclusion that the

32

failure to take that step was fatal to the validity of the judgment. In the application of
the idea of due process of law, on the other hand, it is clearly unnecessary to be so
rigorous. The jurisdiction being once established, all that due process of law
thereafter requires is an opportunity for the defendant to be heard; and as publication
was duly made in the newspaper, it would seem highly unreasonable to hold that
failure to mail the notice was fatal. We think that in applying the requirement of due
process of law, it is permissible to reflect upon the purposes of the provision which is
supposed to have been violated and the principle underlying the exercise of judicial
power in these proceedings. Judge in the light of these conceptions, we think that the
provision of Act of Congress declaring that no person shall be deprived of his
property without due process of law has not been infringed.
In the progress of this discussion we have stated the two conclusions; (1) that the
failure of the clerk to send the notice to the defendant by mail did not destroy the
jurisdiction of the court and (2) that such irregularity did not infringe the requirement
of due process of law. As a consequence of these conclusions the irregularity in
question is in some measure shorn of its potency. It is still necessary, however, to
consider its effect considered as a simple irregularity of procedure; and it would be
idle to pretend that even in this aspect the irregularity is not grave enough. From this
point of view, however, it is obvious that any motion to vacate the judgment on the
ground of the irregularity in question must fail unless it shows that the defendant was
prejudiced by that irregularity. The least, therefore, that can be required of the
proponent of such a motion is to show that he had a good defense against the action
to foreclose the mortgage. Nothing of the kind is, however, shown either in the
motion or in the affidavit which accompanies the motion.
An application to open or vacate a judgment because of an irregularity or defect in
the proceedings is usually required to be supported by an affidavit showing the
grounds on which the relief is sought, and in addition to this showing also a
meritorious defense to the action. It is held that a general statement that a party has a
good defense to the action is insufficient. The necessary facts must be averred. Of
course if a judgment is void upon its face a showing of the existence of a meritorious
defense is not necessary. (10 R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting this aspect of the case. In
this connection we quote the following passage from the encyclopedic treatise now
in course of publication:
Where, however, the judgment is not void on its face, and may therefore be enforced
if permitted to stand on the record, courts in many instances refuse to exercise their
quasi equitable powers to vacate a judgement after the lapse of the term ay which it
was entered, except in clear cases, to promote the ends of justice, and where it
appears that the party making the application is himself without fault and has acted
in good faith and with ordinary diligence. Laches on the part of the applicant, if

unexplained, is deemed sufficient ground for refusing the relief to which he might
otherwise be entitled. Something is due to the finality of judgments, and
acquiescence or unnecessary delay is fatal to motions of this character, since courts
are always reluctant to interfere with judgments, and especially where they have
been executed or satisfied. The moving party has the burden of showing diligence,
and unless it is shown affirmatively the court will not ordinarily exercise its
discretion in his favor. (15 R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y
Limquingco, died January 29, 1910. The mortgage under which the property was
sold was executed far back in 1906; and the proceedings in the foreclosure were
closed by the order of court confirming the sale dated August 7, 1908. It passes the
rational bounds of human credulity to suppose that a man who had placed a
mortgage upon property worth nearly P300,000 and had then gone away from the
scene of his life activities to end his days in the city of Amoy, China, should have
long remained in ignorance of the fact that the mortgage had been foreclosed and the
property sold, even supposing that he had no knowledge of those proceedings while
they were being conducted. It is more in keeping with the ordinary course of things
that he should have acquired information as to what was transpiring in his affairs at
Manila; and upon the basis of this rational assumption we are authorized, in the
absence of proof to the contrary, to presume that he did have, or soon acquired,
information as to the sale of his property.
The Code of Civil Procedure, indeed, expressly declares that there is a presumption
that things have happened according to the ordinary habits of life (sec. 334 [26]); and
we cannot conceive of a situation more appropriate than this for applying the
presumption thus defined by the lawgiver. In support of this presumption, as applied
to the present case, it is permissible to consider the probability that the defendant
may have received actual notice of these proceedings from the unofficial notice
addressed to him in Manila which was mailed by an employee of the bank's
attorneys. Adopting almost the exact words used by the Supreme Court of the United
States in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in
view of the well-known skill of postal officials and employees in making proper
delivery of letters defectively addressed, we think the presumption is clear and strong
that this notice reached the defendant, there being no proof that it was ever returned
by the postal officials as undelivered. And if it was delivered in Manila, instead of
being forwarded to Amoy, China, there is a probability that the recipient was a
person sufficiently interested in his affairs to send it or communicate its contents to
him.
Of course if the jurisdiction of the court or the sufficiency of the process of law
depended upon the mailing of the notice by the clerk, the reflections in which we are
now indulging would be idle and frivolous; but the considerations mentioned are
introduced in order to show the propriety of applying to this situation the legal

33

presumption to which allusion has been made. Upon that presumption, supported by
the circumstances of this case, ,we do not hesitate to found the conclusion that the
defendant voluntarily abandoned all thought of saving his property from the
obligation which he had placed upon it; that knowledge of the proceedings should be
imputed to him; and that he acquiesced in the consequences of those proceedings
after they had been accomplished. Under these circumstances it is clear that the merit
of this motion is, as we have already stated, adversely affected in a high degree by
the delay in asking for relief. Nor is it an adequate reply to say that the proponent of
this motion is an administrator who only qualified a few months before this motion
was made. No disability on the part of the defendant himself existed from the time
when the foreclosure was effected until his death; and we believe that the delay in
the appointment of the administrator and institution of this action is a circumstance
which is imputable to the parties in interest whoever they may have been. Of course
if the minor heirs had instituted an action in their own right to recover the property, it
would have been different.
It is, however, argued that the defendant has suffered prejudice by reason of the fact
that the bank became the purchaser of the property at the foreclosure sale for a price
greatly below that which had been agreed upon in the mortgage as the upset price of
the property. In this connection, it appears that in article nine of the mortgage which
was the subject of this foreclosure, as amended by the notarial document of July 19,
1906, the parties to this mortgage made a stipulation to the effect that the value
therein placed upon the mortgaged properties should serve as a basis of sale in case
the debt should remain unpaid and the bank should proceed to a foreclosure. The
upset price stated in that stipulation for all the parcels involved in this foreclosure
was P286,000. It is said in behalf of the appellant that when the bank bought in the
property for the sum of P110,200 it violated that stipulation.
It has been held by this court that a clause in a mortgage providing for a tipo, or
upset price, does not prevent a foreclosure, nor affect the validity of a sale made in
the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep.,
402; Banco-Espaol Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both
the cases here cited the property was purchased at the foreclosure sale, not by the
creditor or mortgagee, but by a third party. Whether the same rule should be applied
in a case where the mortgagee himself becomes the purchaser has apparently not
been decided by this court in any reported decision, and this question need not here
be considered, since it is evident that if any liability was incurred by the bank by
purchasing for a price below that fixed in the stipulation, its liability was a personal
liability derived from the contract of mortgage; and as we have already demonstrated
such a liability could not be the subject of adjudication in an action where the court
had no jurisdiction over the person of the defendant. If the plaintiff bank became
liable to account for the difference between the upset price and the price at which in
bought in the property, that liability remains unaffected by the disposition which the
court made of this case; and the fact that the bank may have violated such an

obligation can in no wise affect the validity of the judgment entered in the Court of
First Instance.
In connection with the entire failure of the motion to show either a meritorious
defense to the action or that the defendant had suffered any prejudice of which the
law can take notice, we may be permitted to add that in our opinion a motion of this
kind, which proposes to unsettle judicial proceedings long ago closed, can not be
considered with favor, unless based upon grounds which appeal to the conscience of
the court. Public policy requires that judicial proceedings be upheld. The maximum
here applicable is non quieta movere. As was once said by Judge Brewer, afterwards
a member of the Supreme Court of the United States:
Public policy requires that judicial proceedings be upheld, and that titles obtained in
those proceedings be safe from the ruthless hand of collateral attack. If technical
defects are adjudged potent to destroy such titles, a judicial sale will never realize
that value of the property, for no prudent man will risk his money in bidding for and
buying that title which he has reason to fear may years thereafter be swept away
through some occult and not readily discoverable defect. (Martin vs. Pond, 30 Fed.,
15.)
In the case where that language was used an attempt was made to annul certain
foreclosure proceedings on the ground that the affidavit upon which the order of
publication was based erroneously stated that the State of Kansas, when he was in
fact residing in another State. It was held that this mistake did not affect the validity
of the proceedings.
In the preceding discussion we have assumed that the clerk failed to send the notice
by post as required by the order of the court. We now proceed to consider whether
this is a proper assumption; and the proposition which we propose to establish is that
there is a legal presumption that the clerk performed his duty as the ministerial
officer of the court, which presumption is not overcome by any other facts appearing
in the cause.
In subsection 14 of section 334 of the Code of Civil Procedure it is declared that
there is a presumption "that official duty has been regularly performed;" and in
subsection 18 it is declared that there is a presumption "that the ordinary course of
business has been followed." These presumptions are of course in no sense novelties,
as they express ideas which have always been recognized. Omnia presumuntur rite et
solemniter esse acta donec probetur in contrarium. There is therefore clearly a legal
presumption that the clerk performed his duty about mailing this notice; and we think
that strong considerations of policy require that this presumption should be allowed
to operate with full force under the circumstances of this case. A party to an action
has no control over the clerk of the court; and has no right to meddle unduly with the
business of the clerk in the performance of his duties. Having no control over this

34

officer, the litigant must depend upon the court to see that the duties imposed on the
clerk are performed.
Other considerations no less potent contribute to strengthen the conclusion just
stated. There is no principle of law better settled than that after jurisdiction has once
been required, every act of a court of general jurisdiction shall be presumed to have
been rightly done. This rule is applied to every judgment or decree rendered in the
various stages of the proceedings from their initiation to their completion (Voorhees
vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with
respect to any fact which must have been established before the court could have
rightly acted, it will be presumed that such fact was properly brought to its
knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.)
In making the order of sale [of the real state of a decedent] the court are presumed to
have adjudged every question necessary to justify such order or decree, viz: The
death of the owners; that the petitioners were his administrators; that the personal
estate was insufficient to pay the debts of the deceased; that the private acts of
Assembly, as to the manner of sale, were within the constitutional power of the
Legislature, and that all the provisions of the law as to notices which are directory to
the administrators have been complied with. . . . The court is not bound to enter upon
the record the evidence on which any fact was decided. (Florentine vs. Barton, 2
Wall., 210; 17 L. ed., 785.) Especially does all this apply after long lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an
instructive discussion in a case analogous to that which is now before us. It there
appeared that in order to foreclose a mortgage in the State of Kentucky against a
nonresident debtor it was necessary that publication should be made in a newspaper
for a specified period of time, also be posted at the front door of the court house and
be published on some Sunday, immediately after divine service, in such church as the
court should direct. In a certain action judgment had been entered against a
nonresident, after publication in pursuance of these provisions. Many years later the
validity of the proceedings was called in question in another action. It was proved
from the files of an ancient periodical that publication had been made in its columns
as required by law; but no proof was offered to show the publication of the order at
the church, or the posting of it at the front door of the court-house. It was insisted by
one of the parties that the judgment of the court was void for lack of jurisdiction. But
the Supreme Court of the United States said:
The court which made the decree . . . was a court of general jurisdiction. Therefore
every presumption not inconsistent with the record is to be indulged in favor of its
jurisdiction. . . . It is to be presumed that the court before making its decree took care
of to see that its order for constructive service, on which its right to make the decree
depended, had been obeyed.

It is true that in this case the former judgment was the subject of collateral , or
indirect attack, while in the case at bar the motion to vacate the judgment is direct
proceeding for relief against it. The same general presumption, however, is indulged
in favor of the judgment of a court of general jurisdiction, whether it is the subject of
direct or indirect attack the only difference being that in case of indirect attack the
judgment is conclusively presumed to be valid unless the record affirmatively shows
it to be void, while in case of direct attack the presumption in favor of its validity
may in certain cases be overcome by proof extrinsic to the record.
The presumption that the clerk performed his duty and that the court made its decree
with the knowledge that the requirements of law had been complied with appear to
be amply sufficient to support the conclusion that the notice was sent by the clerk as
required by the order. It is true that there ought to be found among the papers on file
in this cause an affidavit, as required by section 400 of the Code of Civil Procedure,
showing that the order was in fact so sent by the clerk; and no such affidavit appears.
The record is therefore silent where it ought to speak. But the very purpose of the
law in recognizing these presumptions is to enable the court to sustain a prior
judgment in the face of such an omission. If we were to hold that the judgment in
this case is void because the proper affidavit is not present in the file of papers which
we call the record, the result would be that in the future every title in the Islands
resting upon a judgment like that now before us would depend, for its continued
security, upon the presence of such affidavit among the papers and would be liable at
any moment to be destroyed by the disappearance of that piece of paper. We think
that no court, with a proper regard for the security of judicial proceedings and for the
interests which have by law been confided to the courts, would incline to favor such
a conclusion. In our opinion the proper course in a case of this kind is to hold that the
legal presumption that the clerk performed his duty still maintains notwithstanding
the absence from the record of the proper proof of that fact.
In this connection it is important to bear in mind that under the practice prevailing in
the Philippine Islands the word "record" is used in a loose and broad sense, as
indicating the collective mass of papers which contain the history of all the
successive steps taken in a case and which are finally deposited in the archives of the
clerk's office as a memorial of the litigation. It is a matter of general information that
no judgment roll, or book of final record, is commonly kept in our courts for the
purpose of recording the pleadings and principal proceedings in actions which have
been terminated; and in particular, no such record is kept in the Court of First
Instance of the city of Manila. There is, indeed, a section of the Code of Civil
Procedure which directs that such a book of final record shall be kept; but this
provision has, as a matter of common knowledge, been generally ignored. The result
is that in the present case we do not have the assistance of the recitals of such a
record to enable us to pass upon the validity of this judgment and as already stated
the question must be determined by examining the papers contained in the entire file.

35

But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y
Garcia showing that upon April 4, 1908, he sent a notification through the mail
addressed to the defendant at Manila, Philippine Islands, should be accepted as
affirmative proof that the clerk of the court failed in his duty and that, instead of
himself sending the requisite notice through the mail, he relied upon Bernardo to
send it for him. We do not think that this is by any means a necessary inference. Of
course if it had affirmatively appeared that the clerk himself had attempted to comply
with this order and had directed the notification to Manila when he should have
directed it to Amoy, this would be conclusive that he had failed to comply with the
exact terms of the order; but such is not this case. That the clerk of the attorneys for
the plaintiff erroneously sent a notification to the defendant at a mistaken address
affords in our opinion very slight basis for supposing that the clerk may not have sent
notice to the right address.
There is undoubtedly good authority to support the position that when the record
states the evidence or makes an averment with reference to a jurisdictional fact, it
will not be presumed that there was other or different evidence respecting the fact, or
that the fact was otherwise than stated. If, to give an illustration, it appears from the
return of the officer that the summons was served at a particular place or in a
particular manner, it will not be presumed that service was also made at another
place or in a different manner; or if it appears that service was made upon a person
other than the defendant, it will not be presumed, in the silence of the record, that it
was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier
vs. Sullivan, 97 U. S., 444, 449). While we believe that these propositions are
entirely correct as applied to the case where the person making the return is the
officer who is by law required to make the return, we do not think that it is properly
applicable where, as in the present case, the affidavit was made by a person who, so
far as the provisions of law are concerned, was a mere intermeddler.
The last question of importance which we propose to consider is whether a motion in
the cause is admissible as a proceeding to obtain relief in such a case as this. If the
motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be
set aside, and the litigation will be renewed, proceeding again from the date
mentioned as if the progress of the action had not been interrupted. The proponent of
the motion does not ask the favor of being permitted to interpose a defense. His
purpose is merely to annul the effective judgment of the court, to the end that the
litigation may again resume its regular course.
There is only one section of the Code of Civil Procedure which expressly recognizes
the authority of a Court of First Instance to set aside a final judgment and permit a
renewal of the litigation in the same cause. This is as follows:
SEC. 113. Upon such terms as may be just the court may relieve a party or legal
representative from the judgment, order, or other proceeding taken against him

through his mistake, inadvertence, surprise, or excusable neglect; Provided, That


application thereof be made within a reasonable time, but in no case exceeding six
months after such judgment, order, or proceeding was taken.
An additional remedy by petition to the Supreme Court is supplied by section 513 of
the same Code. The first paragraph of this section, in so far as pertinent to this
discussion, provides as follows:
When a judgment is rendered by a Court of First Instance upon default, and a party
thereto is unjustly deprived of a hearing by fraud, accident, mistake or excusable
negligence, and the Court of First Instance which rendered the judgment has finally
adjourned so that no adequate remedy exists in that court, the party so deprived of a
hearing may present his petition to the Supreme Court within sixty days after he first
learns of the rendition of such judgment, and not thereafter, setting forth the facts and
praying to have judgment set aside. . . .
It is evident that the proceeding contemplated in this section is intended to
supplement the remedy provided by section 113; and we believe the conclusion
irresistible that there is no other means recognized by law whereby a defeated party
can, by a proceeding in the same cause, procure a judgment to be set aside, with a
view to the renewal of the litigation.
The Code of Civil Procedure purports to be a complete system of practice in civil
causes, and it contains provisions describing with much fullness the various steps to
be taken in the conduct of such proceedings. To this end it defines with precision the
method of beginning, conducting, and concluding the civil action of whatever
species; and by section 795 of the same Code it is declared that the procedure in all
civil action shall be in accordance with the provisions of this Code. We are therefore
of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of
all others, so far as relates to the opening and continuation of a litigation which has
been once concluded.
The motion in the present case does not conform to the requirements of either of
these provisions; and the consequence is that in our opinion the action of the Court of
First Instance in dismissing the motion was proper.
If the question were admittedly one relating merely to an irregularity of procedure,
we cannot suppose that this proceeding would have taken the form of a motion in the
cause, since it is clear that, if based on such an error, the came to late for relief in the
Court of First Instance. But as we have already seen, the motion attacks the judgment
of the court as void for want of jurisdiction over the defendant. The idea underlying
the motion therefore is that inasmuch as the judgment is a nullity it can be attacked
in any way and at any time. If the judgment were in fact void upon its face, that is, if
it were shown to be a nullity by virtue of its own recitals, there might possibly be

36

something in this. Where a judgment or judicial order is void in this sense it may be
said to be a lawless thing, which can be treated as an outlaw and slain at sight, or
ignored wherever and whenever it exhibits its head.
But the judgment in question is not void in any such sense. It is entirely regular in
form, and the alleged defect is one which is not apparent upon its face. It follows that
even if the judgment could be shown to be void for want of jurisdiction, or for lack
of due process of law, the party aggrieved thereby is bound to resort to some
appropriate proceeding to obtain relief. Under accepted principles of law and
practice, long recognized in American courts, a proper remedy in such case, after the
time for appeal or review has passed, is for the aggrieved party to bring an action to
enjoin the judgment, if not already carried into effect; or if the property has already
been disposed of he may institute suit to recover it. In every situation of this
character an appropriate remedy is at hand; and if property has been taken without
due process, the law concedes due process to recover it. We accordingly old that,
assuming the judgment to have been void as alleged by the proponent of this motion,
the proper remedy was by an original proceeding and not by motion in the cause. As
G.R. Nos. 212140-41, January 21, 2015
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner, v. BERSAMIN, OFFICE
OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE
OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION AND ATTY.
LEVITO D. BALIGOD, Respondents.
DECISION
CARPIO, J.:
It is a fundamental principle that the accused in a preliminary investigation has no
right to cross-examine the witnesses which the complainant may present. Section 3,
Rule 112 of the Rules of Court expressly provides that the respondent shall only have
the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions
to the parties or their witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents Office
of the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the
Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod
(Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-C-C-13-03013 and OMB-C-C-13-0397 until the present Petition has been

we have already seen our Code of Civil Procedure defines the conditions under
which relief against a judgment may be productive of conclusion for this court to
recognize such a proceeding as proper under conditions different from those defined
by law. Upon the point of procedure here involved, we refer to the case of People vs.
Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a
judgment after the lapse of the time limited by statute if the judgment is not void on
its face; and in all cases, after the lapse of the time limited by statute if the judgment
is not void on its face; and all cases, after the lapse of such time, when an attempt is
made to vacate the judgment by a proceeding in court for that purpose an action
regularly brought is preferable, and should be required. It will be noted taken
verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the judgment appealed from is
without error, and the same is accordingly affirmed, with costs. So ordered.
Arellano, C.J., Torres, Carson, and Avancea, JJ., concur.
resolved with finality; and (2) this Courts declaration that petitioner Senator Jinggoy
Ejercito Estrada (Sen. Estrada) was denied due process of law, and that the Order of
the Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-13-03013
and OMB-C-C-13-0397 subsequent to and affected by the issuance of the challenged
27 March 2014 Order are void.
OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D.
Baligod v. Jose Jinggoy P. Ejercito Estrada, et al., refers to the complaint for
Plunder as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-0397,4
entitled Field Investigation Office, Office of the Ombudsman v. Jose Jinggoy P.
Ejercito-Estrada, et al., refers to the complaint for Plunder as defined under RA No.
7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt
Practices Act).cralawred
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed,
among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-CC-13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which
prayed, among others, that criminal proceedings for Plunder, as defined in RA No.
7080, and for violation of Section 3(e) of RA No. 3019, be conducted against Sen.

37

Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C-13-0397 on 16 January


2014.

Procedure of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada]
to be furnished all the filings of the respondents.

Eighteen of Sen. Estradas co-respondents in the two complaints filed their counteraffidavits between 9 December 2013 and 14 March
2014.5chanRoblesvirtualLawlibrary

Rule 112 (3) (a) & (c) of the Rules of Court provides
[sic]:ChanRoblesVirtualawlibrary

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of
Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for
copies of the following documents:
(a)
Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b)
Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c)
Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d)
Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e)
Consolidated Reply of complainant NBI, if one had been filed; and
(f)
Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents
and/or additional witnesses for the Complainants.6
Sen. Estradas request was made [p]ursuant to the right of a respondent to examine
the evidence submitted by the complainant which he may not have been furnished
(Section 3[b], Rule 112 of the Rules of Court) and to have access to the evidence on
record (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).7chanRoblesvirtualLawlibrary
On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-130313. The pertinent portions of the assailed Order read:ChanRoblesVirtualawlibrary
This Office finds however finds [sic] that the foregoing provisions [pertaining to
Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of

(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as other
supporting documents to establish probable cause
xxx xxx xxx
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counteraffidavit and that of his witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the
Rules of Procedure of the Office of the Ombudsman [Section 4 of Rule II of
Administrative Order No. 07 issued on April 10, 1990]:ChanRoblesVirtualawlibrary
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue
an order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondents to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to
furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits and
documents; and this Office complied with this requirement when it furnished [Sen.
Estrada] with the foregoing documents attached to the Orders to File CounterAffidavit dated 19 November 2013 and 25 November 2013.
It is to be noted that there is no provision under this Offices Rules of Procedure
which entitles respondent to be furnished all the filings by the other parties, e.g. the
respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of Court

38

as well as the Rules of Procedure of the Office of the Ombudsman, the respondents
are only required to furnish their counter-affidavits and controverting evidence to the
complainant, and not to the other respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the
preliminary investigation depend on the rights granted to him by law and these
cannot be based on whatever rights he believes [that] he is entitled to or those that
may be derived from the phrase due process of law.
Thus, this Office cannot grant his motion to be furnished with copies of all the
filings by the other parties. Nevertheless, he should be furnished a copy of the Reply
of complainant NBI as he is entitled thereto under the rules; however, as of this date,
no Reply has been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies
of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and
Other Filings is DENIED. He is nevertheless entitled to be furnished a copy of the
Reply if complainant opts to file such pleading.8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C13-0397 a Joint Resolution9 which found probable cause to indict Sen. Estrada and
his co-respondents with one count of plunder and 11 counts of violation of Section
3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint
Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the
issuance of a new resolution dismissing the charges against him.
Without filing a Motion for Reconsideration of the Ombudsmans 27 March 2014
Order denying his Request, Sen. Estrada filed the present Petition for Certiorari
under Rule 65 and sought to annul and set aside the 27 March 2014 Order.cralawred
THE ARGUMENTS
Sen. Estrada raised the following grounds in his
Petition:ChanRoblesVirtualawlibrary
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED
ORDER DATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10
Sen. Estrada also claimed that under the circumstances, he has no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, except
through this Petition.11 Sen. Estrada applied for the issuance of a temporary

restraining order and/or writ of preliminary injunction to restrain public respondents


from conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.
Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due
process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as
well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to
and affected by the issuance of the 27 March 2014 Order, are
void.12chanRoblesvirtualLawlibrary
On the same date, 7 May 2014, the Ombudsman issued in OMB-C-C-13-0313 and
OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counter-affidavits
of Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria Buenaventura,
and Alexis Sevidal, and directing him to comment thereon within a non-extendible
period of five days from receipt of the order.
On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his
Request to be furnished copies of counter-affidavits of his co-respondents deprived
him of his right to procedural due process, and he has filed the present Petition
before this Court. The Ombudsman denied Sen. Estradas motion to suspend in an
Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the
Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.
As of 2 June 2014, the date of filing of the Ombudsmans Comment to the present
Petition, Sen. Estrada had not filed a comment on the counter-affidavits furnished to
him. On 4 June 2014, the Ombudsman issued a Joint Order in OMB-C-C-13-0313
and OMB-C-C-13-0397 denying, among other motions filed by the other
respondents, Sen. Estradas motion for reconsideration dated 7 April 2014. The
pertinent portion of the 4 June 2014 Joint Order stated:ChanRoblesVirtualawlibrary
While it is true that Senator Estradas request for copies of Tuason, Cunanan,
Amata, Relampagos, Figura, Buenaventura and Sevidals affidavits was denied by
Order dated 27 March 2014 and before the promulgation of the assailed Joint
Resolution, this Office thereafter re-evaluated the request and granted it by Order
dated 7 May 2014 granting his request. Copies of the requested counter-affidavits
were appended to the copy of the Order dated 7 May 2014 transmitted to Senator
Estrada through counsel.
This Office, in fact, held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a period of
five days from receipt of the 7 May 2014 Order to formally respond to the abovenamed co-respondents claims.
In view of the foregoing, this Office fails to see how Senator Estrada was deprived
of his right to procedural due process.13 (Emphasis supplied)

39

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Office of the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:ChanRoblesVirtualawlibrary
I. PETITIONER [SEN. ESTRADA] WAS NOT DENIED DUE PROCESS OF
LAW.
II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.
A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN
THE ORDINARY COURSE OF LAW.
III. PETITIONER IS NOT ENTITLED TO A WRIT OF PRELIMINARY
INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty.
Baligod stated that Sen. Estradas resort to a Petition for Certiorari under Rule 65 is
improper. Sen. Estrada should have either filed a motion for reconsideration of the 27
March 2014 Order or incorporated the alleged irregularity in his motion for
reconsideration of the 28 March 2014 Joint Resolution. There was also no violation
of Sen. Estradas right to due process because there is no rule which mandates that a
respondent such as Sen. Estrada be furnished with copies of the submissions of his
co-respondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment.
Sen. Estrada insisted that he was denied due process. Although Sen. Estrada received
copies of the counter-affidavits of Cunanan, Amata, Relampagos, Buenaventura,
Figura, Sevidal, as well as one of Tuasons counter-affidavits, he claimed that he was
not given the following documents:ChanRoblesVirtualawlibrary
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;
b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to


the NBI Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14
March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013;
and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.
Sen. Estrada argues that the Petition is not rendered moot by the subsequent issuance
of the 7 May 2014 Joint Order because there is a recurring violation of his right to
due process. Sen. Estrada also insists that there is no forum shopping as the present
Petition arose from an incident in the main proceeding, and that he has no other
plain, speedy, and adequate remedy in the ordinary course of law. Finally, Sen.
Estrada reiterates his application for the issuance of a temporary restraining order
and/or writ of preliminary injunction to restrain public respondents from conducting
further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.cralawred
This Courts Ruling
Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014
Order of Sen. Estradas Request did not constitute grave abuse of discretion. Indeed,
the denial did not violate Sen. Estradas constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a respondent
with copies of the counter-affidavits of his co-respondents.
We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of
the Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary
Investigation

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;


e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to
the FIO Complaint);

Section 3. Procedure. The preliminary investigation shall be conducted in the


following manner:

40

(a) The complaint shall state the address of the respondent and shall be
accompanied by the affidavits of the complainant and his witnesses, as well as other
supporting documents to establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the official file. The affidavits
shall be subscribed and sworn to before any prosecutor or government official
authorized to administer oath, or, in their absence or unavailability, before a notary
public, each of who must certify that he personally examined the affiants and that he
is satisfied that they voluntarily executed and understood their affidavits.

(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for trial.

(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss it if he finds no ground to continue with the investigation, or
issue a subpoena to the respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.

Section 4. Resolution of investigating prosecutor and its review. If the


investigating prosecutor finds cause to hold the respondent for trial, he shall prepare
the resolution and information. He shall certify under oath in the information that he,
or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a crime
has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that
he was given an opportunity to submit controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.

The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense.
If the evidence is voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these shall be made available
for examination or copying by the respondent at his expense.

Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or
his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the parties of such action.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.

No complaint or information may be filed or dismissed by an investigating


prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.

(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counteraffidavit and that of his witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn to and certified as
provided in paragraph (a) of this section, with copies thereof furnished by him to the
complainant. The respondent shall not be allowed to file a motion to dismiss in lieu
of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be
clarified from a party or a witness. The parties can be present at the hearing but
without the right to examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the party or witness
concerned.
The hearing shall be held within ten (10) days from submission of the counteraffidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.

Where the investigating prosecutor recommends the dismissal of the complaint but
his recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause
exists, the latter may, by himself, file the information against the respondent, or
direct any other assistant prosecutor or state prosecutor to do so without conducting
another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu proprio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct
the prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman.
From the Rules of Procedure of the Office of the Ombudsman, Administrative
Order No. 7, Rule II: Procedure in Criminal Cases

41

Section 1. Grounds. A criminal complaint may be brought for an offense in


violation of R.A. 3019, as amended, R.A. 1379, as amended, R.A. 6713, Title VII,
Chapter II, Section 2 of the Revised Penal Code, and for such other offenses
committed by public officers and employees in relation to office.
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer
shall recommend whether it may be:
a) dismissed outright for want of palpable merit;

b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after
service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.

b) referred to respondent for comment;


c) indorsed to the proper government office or agency which has jurisdiction over
the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct. Preliminary investigation
may be conducted by any of the following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither


may a motion for a bill of particulars be entertained. If respondent desires any matter
in the complainants affidavit to be clarified, the particularization thereof may be
done at the time of clarificatory questioning in the manner provided in paragraph (f)
of this section.
e) If the respondent cannot be served with the order mentioned in paragraph 6
hereof, or having been served, does not comply therewith, the complaint shall be
deemed submitted for resolution on the basis of the evidence on record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there
are facts material to the case which the investigating officer may need to be clarified
on, he may conduct a clarificatory hearing during which the parties shall be afforded
the opportunity to be present but without the right to examine or cross-examine the
witness being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing, whereby
the questions desired to be asked by the investigating officer or a party shall be
reduced into writing and served on the witness concerned who shall be required to
answer the same in writing and under oath.

4) Investigating Officials authorized by law to conduct preliminary investigations;


or
5) Lawyers in the government service, so designated by the Ombudsman.
Sec. 4. Procedure. The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in
the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the
following provisions:
a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaints.

g) Upon the termination of the preliminary investigation, the investigating officer


shall forward the records of the case together with his resolution to the designated
authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all other
cases.
xxxx

42

Sec. 6. Notice to parties. The parties shall be served with a copy of the
resolution as finally approved by the Ombudsman or by the proper Deputy
Ombudsman.
Sec. 7. Motion for reconsideration. a) Only one (1) motion for reconsideration
or reinvestigation of an approved order or resolution shall be allowed, the same to be
filed within fifteen (15) days from notice thereof with the Office of the Ombudsman,
or the proper deputy ombudsman as the case may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing
of the corresponding Information in court on the basis of the finding of probable
cause in the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his corespondents violates his constitutional right to due process. Sen. Estrada, however,
fails to specify a law or rule which states that it is a compulsory requirement of due
process in a preliminary investigation that the Ombudsman furnish a respondent with
the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the
Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estradas claim.
What the Rules of Procedure of the Office of the Ombudsman require is for the
Ombudsman to furnish the respondent with a copy of the complaint and the
supporting affidavits and documents at the time the order to submit the counteraffidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the
Rules of Procedure of the Office of the Ombudsman when it states, [a]fter such
affidavits [of the complainant and his witnesses] have been secured, the investigating
officer shall issue an order, attaching thereto a copy of the affidavits and other
supporting documents, directing the respondent to submit, within ten (10) days from
receipt thereof, his counter-affidavits x x x. At this point, there is still no counteraffidavit submitted by any respondent. Clearly, what Section 4(b) refers to are
affidavits of the complainant and his witnesses, not the affidavits of the corespondents. Obviously, the counter-affidavits of the co-respondents are not part of
the supporting affidavits of the complainant. No grave abuse of discretion can thus
be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which
denied Sen. Estradas Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman provides that a respondent shall have access to the evidence on
record, this provision should be construed in relation to Section 4(a) and (b) of the
same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states
that the investigating officer shall require the complainant or supporting witnesses

to execute affidavits to substantiate the complaint. The supporting witnesses are


the witnesses of the complainant, and do not refer to the co-respondents.
Second, Section 4(b) states that the investigating officer shall issue an order
attaching thereto a copy of the affidavits and all other supporting documents,
directing the respondent to submit his counter-affidavit. The affidavits referred to in
Section 4(b) are the affidavits mentioned in Section 4(a). Clearly, the affidavits to be
furnished to the respondent are the affidavits of the complainant and his supporting
witnesses. The provision in the immediately succeeding Section 4(c) of the same
Rule II that a respondent shall have access to the evidence on record does not stand
alone, but should be read in relation to the provisions of Section 4(a and b) of the
same Rule II requiring the investigating officer to furnish the respondent with the
affidavits and other supporting documents submitted by the complainant or
supporting witnesses. Thus, a respondents access to evidence on record in
Section 4(c), Rule II of the Ombudsmans Rules of Procedure refers to the affidavits
and supporting documents of the complainant or supporting witnesses in Section
4(a) of the same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides
that [t]he respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. A respondents right to examine refers only to the evidence submitted by
the complainant.
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under
Rule II of the Ombudsmans Rules of Procedure, there is no requirement whatsoever
that the affidavits executed by the co-respondents should be furnished to a
respondent.
Justice Velascos dissent relies on the ruling in Office of the Ombudsman v. Reyes
(Reyes case),15 an administrative case, in which a different set of rules of procedure
and standards apply. Sen. Estradas Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative
Cases of the Rules of Procedure of the Office of the Ombudsman applies in the
Reyes case, while Rule II on the Procedure in Criminal Cases of the Rules of
Procedure of the Office of the Ombudsman applies in Sen. Estradas Petition. In both
cases, the Rules of Court apply in a suppletory character or by
analogy.16chanRoblesvirtualLawlibrary
In the Reyes case, the complainant Acero executed an affidavit against Reyes and
Pealoza, who were both employees of the Land Transportation Office. Pealoza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted
his counter-affidavit in another case before the Ombudsman as it involved the same
parties and the same incident. None of the parties appeared during the preliminary

43

conference. Pealoza waived his right to a formal investigation and was willing to
submit the case for resolution based on the evidence on record. Pealoza also
submitted a counter-affidavit of his third witness. The Ombudsman found Reyes
guilty of grave misconduct and dismissed him from the service. On the other hand,
Pealoza was found guilty of simple misconduct and penalized with suspension from
office without pay for six months. This Court agreed with the Court of Appeals
finding that Reyes right to due process was indeed violated. This Court remanded
the records of the case to the Ombudsman, for two reasons: (1) Reyes should not
have been meted the penalty of dismissal from the service when the evidence was
not substantial, an d (2) there was disregard of Reyes right to due process because he
was not furnished a copy of the counter-affidavits of Pealoza and of Pealozas
three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits
happened in the administrative proceedings on the merits, which resulted in Reyes
dismissal from the service. In Sen. Estradas Petition, the denial of his Request
happened during the preliminary investigation where the only issue is the existence
of probable cause for the purpose of determining whether an information should be
filed, and does not prevent Sen. Estrada from requesting a copy of the counteraffidavits of his co-respondents during the pre-trial or even during the trial.
We should remember to consider the differences in adjudicating cases, particularly
an administrative case and a criminal case:ChanRoblesVirtualawlibrary
Any lawyer worth his salt knows that quanta of proof and adjective rules vary
depending on whether the cases to which they are meant to apply are criminal, civil
or administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction; in civil actions and proceedings, preponderance of evidence,
as support for a judgment; and in administrative cases, substantial evidence, as basis
for adjudication. In criminal and civil actions, application of the Rules of Court is
called for, with more or less strictness. In administrative proceedings, however, the
technical rules of pleading and procedure, and of evidence, are not strictly adhered
to; they generally apply only suppletorily; indeed, in agrarian disputes application of
the Rules of Court is actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is only for
the determination of probable cause, and probable cause merely implies probability
of guilt and should be determined in a summary manner. A preliminary investigation
is not a part of the trial and it is only in a trial where an accused can demand the full
exercise of his rights, such as the right to confront and cross-examine his accusers to
establish his innocence.18 Thus, the rights of a respondent in a preliminary
investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose
of determining whether there is sufficient ground to engender a well founded belief
that a crime cognizable by the Regional Trial Court has been committed and that the

respondent is probably guilty thereof, and should be held for trial. The quantum of
evidence now required in preliminary investigation is such evidence sufficient to
engender a well founded belief as to the fact of the commission of a crime and the
respondent's probable guilt thereof. A preliminary investigation is not the occasion
for the full and exhaustive display of the parties evidence; it is for the presentation
of such evidence only as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof. We are in accord
with the state prosecutors findings in the case at bar that there exists prima facie
evidence of petitioners involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.
Likewise devoid of cogency is petitioners argument that the testimonies of
Galarion and Hanopol are inadmissible as to him since he was not granted the
opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary investigation has no
right to cross-examine the witnesses which the complainant may present. Section 3,
Rule 112 of the Rules of Court expressly provides that the respondent shall only have
the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions
to the parties or their witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine. Thus, even if petitioner was not given
the opportunity to cross-examine Galarion and Hanopol at the time they were
presented to testify during the separate trial of the case against Galarion and Roxas,
he cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before the
trial court during the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal who has
jurisdiction and control over the conduct of a preliminary investigation. If by its very
nature a preliminary investigation could be waived by the accused, we find no
compelling justification for a strict application of the evidentiary rules. In addition,
considering that under Section 8, Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by
the trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and
the trial court can rule on the admissibility thereof; or the petitioner can, during the
trial, petition said court to compel the presentation of Galarion and Hanopol for
purposes of cross-examination.19 (Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked a vital
portion of the Court of Appeals reasoning. This Court quoted from the Court of

44

Appeals decision: x x x [A]dmissions made by Pealoza in his sworn statement are


binding only on him. Res inter alios acta alteri nocere non debet. The rights of a
party cannot be prejudiced by an act, declaration or omission of another. In OMBC-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estradas corespondents can in no way prejudice Sen. Estrada. Even granting Justice Velascos
argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMBC-C-13-039720 mentioned the testimonies of Sen. Estradas co-respondents like
Tuason and Cunanan, their testimonies were merely corroborative of the testimonies
of complainants witnesses Benhur Luy, Marina Sula, and Merlina Suas and were
not mentioned in isolation from the testimonies of complainants witnesses.

something to support its decision. A decision with absolutely nothing to support it is


a nullity, x x x.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against
Sen. Estrada to establish its finding of probable cause in the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 was judicially confirmed
by the Sandiganbayan, when it examined the evidence, found probable cause, and
issued a warrant of arrest against Sen. Estrada on 23 June 2014.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its
or his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision. x x x.

We likewise take exception to Justice Brions assertion that the due process
standards that at the very least should be considered in the conduct of a preliminary
investigation are those that this Court first articulated in Ang Tibay v. Court of
Industrial Relations [Ang Tibay].21 Simply put, the Ang Tibay guidelines for
administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have
absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due process, which Ang
Tibay described as the fundamental and essential requirements of due process in
trials and investigations of an administrative character.22 These requirements are
fundamental and essential because without these, there is no due process as
mandated by the Constitution. These fundamental and essential requirements
cannot be taken away by legislation because they are part of constitutional due
process. These fundamental and essential requirements
are:ChanRoblesVirtualawlibrary
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. x x x.
(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented. x x x.
(3) While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having

(4) Not only must there be some evidence to support a finding or conclusion, but
the evidence must be substantial. Substantial evidence is more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. x x x.
(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render
its decision in such a manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered. The performance of this
duty is inseparable from the authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS):
what Ang Tibay failed to explicitly state was, prescinding from the general
principles governing due process, the requirement of an impartial tribunal which,
needless to say, dictates that one called upon to resolve a dispute may not sit as judge
and jury simultaneously, neither may he review his decision on appeal.25 The GSIS
clarification affirms the non-applicability of the Ang Tibay guidelines to preliminary
investigations in criminal cases: The investigating officer, which is the role that the
Office of the Ombudsman plays in the investigation and prosecution of government
personnel, will never be the impartial tribunal required in Ang Tibay, as amplified in
GSIS. The purpose of the Office of the Ombudsman in conducting a preliminary
investigation, after conducting its own fact-finding investigation, is to determine
probable cause for filing an information, and not to make a final adjudication of the
rights and obligations of the parties under the law, which is the purpose of the
guidelines in Ang Tibay. The investigating officer investigates, determines probable
cause, and prosecutes the criminal case after filing the corresponding information.
The purpose in determining probable cause is to make sure that the courts are not
clogged with weak cases that will only be dismissed, as well as to spare a person
from the travails of a needless prosecution.26 The Ombudsman and the prosecution
service under the control and supervision of the Secretary of the Department of
Justice are inherently the fact-finder, investigator, hearing officer, judge and jury of
the respondent in preliminary investigations. Obviously, this procedure cannot
comply with Ang Tibay, as amplified in GSIS. However, there is nothing
unconstitutional with this procedure because this is merely an Executive function, a

45

part of the law enforcement process leading to trial in court where the requirements
mandated in Ang Tibay, as amplified in GSIS, will apply. This has been the
procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay,
as amplified in GSIS, should apply to preliminary investigations will mean that all
past and present preliminary investigations are in gross violation of constitutional
due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present
case when he filed his Request, is not yet an accused person, and hence cannot
demand the full exercise of the rights of an accused
person:ChanRoblesVirtualawlibrary
A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects.
Probable cause need not be based on clear and convincing evidence of guilt, neither
on evidence establishing guilt beyond reasonable doubt and definitely, not on
evidence establishing absolute certainty of guilt. As well put in Brinegar v. United
States, while probable cause demands more than bare suspicion, it requires less
than evidence which would justify . . . conviction. A finding of probable cause
merely binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding
of probable cause, we also hold that the DOJ Panel did not gravely abuse its
discretion in refusing to call the NBI witnesses for clarificatory questions. The
decision to call witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the evidence on hand
already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part of trial and
it is only in a trial where an accused can demand the full exercise of his rights, such
as the right to confront and cross-examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that enough evidence had been
adduced to establish probable cause and clarificatory hearing was unnecessary.27
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,28 that the rights conferred upon accused persons to participate in
preliminary investigations concerning themselves depend upon the provisions of law
by which such rights are specifically secured, rather than upon the phrase due
process of law. This reiterates Justice Jose P. Laurels oft-quoted pronouncement in
Hashim v. Boncan29 that the right to a preliminary investigation is statutory, not
constitutional. In short, the rights of a respondent in a preliminary investigation are
merely statutory rights, not constitutional due process rights. An investigation to
determine probable cause for the filing of an information does not initiate a criminal
action so as to trigger into operation Section 14(2), Article III of the Constitution.30

It is the filing of a complaint or information in court that initiates a criminal


action.31chanRoblesvirtualLawlibrary
The rights to due process in administrative cases as prescribed in Ang Tibay, as
amplified in GSIS, are granted by the Constitution; hence, these rights cannot be
taken away by mere legislation. On the other hand, as repeatedly reiterated by this
Court, the right to a preliminary investigation is merely a statutory right,32 not part
of the fundamental and essential requirements of due process as prescribed in Ang
Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by
legislation. The constitutional right of an accused to confront the witnesses against
him does not apply in preliminary investigations; nor will the absence of a
preliminary investigation be an infringement of his right to confront the witnesses
against him.33 A preliminary investigation may be done away with entirely without
infringing the constitutional right of an accused under the due process clause to a fair
trial.34chanRoblesvirtualLawlibrary
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than
the evidence needed in a preliminary investigation to establish probable cause, or to
establish the existence of a prima facie case that would warrant the prosecution of a
case. Ang Tibay refers to substantial evidence, while the establishment of probable
cause needs only more than bare suspicion, or less than evidence which would
justify . . . conviction. In the United States, from where we borrowed the concept
of probable cause,35 the prevailing definition of probable cause is
this:ChanRoblesVirtualawlibrary
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly correlative to what must be
proved.
The substance of all the definitions of probable cause is a reasonable ground
for belief of guilt. McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in
the Carroll opinion. 267 U. S. at 161. And this means less than evidence which
would justify condemnation or conviction, as Marshall, C. J., said for the Court
more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since
Marshalls time, at any rate, it has come to mean more than bare suspicion: Probable
cause exists where the facts and circumstances within their [the officers]
knowledge and of which they had reasonably trustworthy information [are] sufficient
in themselves to warrant a man of reasonable caution in the belief that an offense
has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime. They

46

also seek to give fair leeway for enforcing the law in the communitys protection.
Because many situations which confront officers in the course of executing their
duties are more or less ambiguous, room must be allowed for some mistakes on their
part. But the mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability. The rule of probable cause is a practical,
nontechnical conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly
hamper law enforcement. To allow less would be to leave law-abiding citizens at the
mercy of the officers whim or caprice.36
In the Philippines, there are four instances in the Revised Rules of Criminal
Procedure where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine
whether there is sufficient ground to engender a well-founded belief that a crime has
been committed and the respondent is probably guilty thereof, and should be held for
trial. A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four years,
two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of
arrest or a commitment order, if the accused has already been arrested, shall be
issued and that there is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant
shall be issued, and only upon probable cause in connection with one specific offense
to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which may be anywhere in the
Philippines.
In all these instances, the evidence necessary to establish probable cause is based
only on the likelihood, or probability, of guilt. Justice Brion, in the recent case of
Unilever Philippines, Inc. v. Tan37 (Unilever), stated:ChanRoblesVirtualawlibrary
The determination of probable cause needs only to rest on evidence showing that
more likely than not, a crime has been committed and there is enough reason to
believe that it was committed by the accused. It need not be based on clear and

convincing evidence of guilt, neither on evidence establishing absolute certainty of


guilt. What is merely required is probability of guilt. Its determination, too, does
not call for the application of rules or standards of proof that a judgment of
conviction requires after trial on the merits. Thus, in concluding that there is
probable cause, it suffices that it is believed that the act or omission complained of
constitutes the very offense charged.
It is also important to stress that the determination of probable cause does not
depend on the validity or merits of a partys accusation or defense or on the
admissibility or veracity of testimonies presented. As previously discussed, these
matters are better ventilated during the trial proper of the case. As held in
Metropolitan Bank & Trust Company v. Gonzales:ChanRoblesVirtualawlibrary
Probable cause has been defined as the existence of such facts and
circumstances as would excite the belief in a reasonable mind, acting on the facts
within the knowledge of the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted. x x x. The term does not mean actual or positive
cause nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the offense charged.
Precisely, there is a trial for the reception of evidence of the prosecution in support of
the charge. (Boldfacing and italicization supplied)
Justice Brions pronouncement in Unilever that the determination of probable cause
does not depend on the validity or merits of a partys accusation or defense or on the
admissibility or veracity of testimonies presented correctly recognizes the doctrine
in the United States that the determination of probable cause can rest partially, or
even entirely, on hearsay evidence, as long as the person making the hearsay
statement is credible. In United States v. Ventresca,38 the United States Supreme
Court held:ChanRoblesVirtualawlibrary
While a warrant may issue only upon a finding of probable cause, this Court has
long held that the term probable cause . . . means less than evidence which would
justify condemnation, Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a
finding of probable cause may rest upon evidence which is not legally competent
in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court
stated in Brinegar v. United States, 338 U.S. 160, 173, There is a large difference
between the two things to be proved (guilt and probable cause), as well as between
the tribunals which determine them, and therefore a like difference in the quanta and
modes of proof required to establish them. Thus, hearsay may be the basis for
issuance of the warrant so long as there . . . [is] a substantial basis for crediting the
hearsay. Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we
recognized that an affidavit may be based on hearsay information and need not

47

reflect the direct personal observations of the affiant, so long as the magistrate is
informed of some of the underlying circumstances supporting the affiants
conclusions and his belief that any informant involved whose identity need not be
disclosed . . . was credible or his information reliable. Aguilar v. Texas, supra,
at 378 U.S. 114. (Emphasis supplied)

judgment even if he is already serving his sentence, provided that he is not a habitual
criminal.39 This Court retains its control over a case until the full satisfaction of the
final judgment conformably with established legal processes.40 Applying Ang
Tibay, as amplified in GSIS, to preliminary investigations will result in thousands of
prisoners, convicted by final judgment, being set free from prison.

Thus, probable cause can be established with hearsay evidence, as long as there is
substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such investigation
is merely preliminary, and does not finally adjudicate rights and obligations of
parties. However, in administrative cases, where rights and obligations are finally
adjudicated, what is required is substantial evidence which cannot rest entirely or
even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial
basis can include hearsay evidence. To require the application of Ang Tibay, as
amplified in GSIS, in preliminary investigations will change the quantum of
evidence required in determining probable cause from evidence of likelihood or
probability of guilt to substantial evidence of guilt.

Second. Sen. Estradas present Petition for Certiorari is premature.

It is, moreover, necessary to distinguish between the constitutionally guaranteed


rights of an accused and the right to a preliminary investigation. To treat them the
same will lead to absurd and disastrous consequences. All pending criminal cases in
all courts throughout the country will have to be remanded to the preliminary
investigation level because none of these will satisfy Ang Tibay, as amplified in
GSIS. Preliminary investigations are conducted by prosecutors, who are the same
officials who will determine probable cause and prosecute the cases in court. The
prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in
GSIS. A reinvestigation by an investigating officer outside of the prosecution service
will be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This will
require a new legislation. In the meantime, all pending criminal cases in all courts
will have to be remanded for reinvestigation, to proceed only when a new law is in
place. To require Ang Tibay, as amplified in GSIS, to apply to preliminary
investigation will necessarily change the concept of preliminary investigation as we
know it now. Applying the constitutional due process in Ang Tibay, as amplified in
GSIS, to preliminary investigation will necessarily require the application of the
rights of an accused in Section 14(2), Article III of the 1987 Constitution. This means
that the respondent can demand an actual hearing and the right to cross-examine the
witnesses against him, rights which are not afforded at present to a respondent in a
preliminary investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with
pending preliminary investigations but even to those convicted by final judgment and
already serving their sentences. The rule is well-settled that a judicial decision
applies retroactively if it has a beneficial effect on a person convicted by final

Justice Velascos dissent prefers that Sen. Estrada not be subjected to the rigors of a
criminal prosecution in court because there is a pending question regarding the
Ombudsmans grave abuse of its discretion preceding the finding of a probable cause
to indict him. Restated bluntly, Justice Velascos dissent would like this Court to
conclude that the mere filing of the present Petition for Certiorari questioning the
Ombudsmans denial of Sen. Estradas Request should have, by itself, voided all
proceedings related to the present case.
Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estradas Request, the Ombudsman subsequently reconsidered its Order. On 7 May
2014, the same date that Sen. Estrada filed the present Petition, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnished
Sen. Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan,
Gondelina Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura,
and Alexis Sevidal, and directed him to comment within a non-extendible period of
five days from receipt of said Order. Sen. Estrada did not file any comment, as noted
in the 4 June 2014 Joint Order of the Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen.
Estradas Motion for Reconsideration of its 28 March 2014 Joint Resolution which
found probable cause to indict Sen. Estrada and his co-respondents with one count of
plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4
June 2014 Joint Order, the Ombudsman stated that [t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in light of
its grant to Senator Estrada a period of five days from receipt of the 7 May 2014
Order to formally respond to the above-named respondents claims.
We underscore Sen. Estradas procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014 Order in
OMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this Petition for
Certiorari before this Court. Sen. Estradas resort to a petition for certiorari before
this Court stands in stark contrast to his filing of his 7 April 2014 Motion for
Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The
present Petition for Certiorari is premature.

48

A motion for reconsideration allows the public respondent an opportunity to correct


its factual and legal errors. Sen. Estrada, however, failed to present a compelling
reason that the present Petition falls under the exceptions41 to the general rule that
the filing of a motion for reconsideration is required prior to the filing of a petition
for certiorari. This Court has reiterated in numerous decisions that a motion for
reconsideration is mandatory before the filing of a petition for
certiorari.42chanRoblesvirtualLawlibrary
Justice Velascos dissent faults the majority for their refusal to apply the Reyes case
to the present Petition. Justice Velascos dissent insists that this Court cannot
neglect to emphasize that, despite the variance in the quanta of evidence required, a
uniform observance of the singular concept of due process is indispensable in all
proceedings.
As we try to follow Justice Velascos insistence, we direct Justice Velasco and those
who join him in his dissent to this Courts ruling in Ruivivar v. Office of the
Ombudsman (Ruivivar),43 wherein we stated that [t]he law can no longer help one
who had been given ample opportunity to be heard but who did not take full
advantage of the proffered chance.
The Ruivivar case, like the Reyes44 case, was also an administrative case before the
Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar
administratively liable for discourtesy in the course of her official functions and
imposed on her the penalty of reprimand. Petitioner filed a motion for
reconsideration of the decision on the ground that she was not furnished copies of the
affidavits of the private respondents witnesses. The Ombudsman subsequently
ordered that petitioner be furnished with copies of the counter-affidavits of private
respondents witnesses, and that petitioner should file, within ten (10) days from
receipt of this Order, such pleading which she may deem fit under the
circumstances. Petitioner received copies of the affidavits, and simply filed a
manifestation where she maintained that her receipt of the affidavits did not alter the
deprivation of her right to due process or cure the irregularity in the Ombudsmans
decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private respondents witnesses
after the Ombudsman rendered a decision against her. We disposed of petitioners
deprivation of due process claim in this manner:ChanRoblesVirtualawlibrary
The CA Decision dismissed the petition for certiorari on the ground that the
petitioner failed to exhaust all the administrative remedies available to her before the
Ombudsman. This ruling is legally correct as exhaustion of administrative remedies
is a requisite for the filing of a petition for certiorari. Other than this legal
significance, however, the ruling necessarily carries the direct and immediate
implication that the petitioner has been granted the opportunity to be heard and has

refused to avail of this opportunity; hence, she cannot claim denial of due process. In
the words of the CA ruling itself: Petitioner was given the opportunity by public
respondent to rebut the affidavits submitted by private respondent. . . and had a
speedy and adequate administrative remedy but she failed to avail thereof for reasons
only known to her.
For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due
process embody linked and related principles. The exhaustion principle applies
when the ruling court or tribunal is not given the opportunity to re-examine its
findings and conclusions because of an available opportunity that a party seeking
recourse against the court or the tribunals ruling omitted to take. Under the concept
of due process, on the other hand, a violation occurs when a court or tribunal rules
against a party without giving him or her the opportunity to be heard. Thus, the
exhaustion principle is based on the perspective of the ruling court or tribunal, while
due process is considered from the point of view of the litigating party against whom
a ruling was made. The commonality they share is in the same opportunity that
underlies both. In the context of the present case, the available opportunity to
consider and appreciate the petitioners counter-statement of facts was denied the
Ombudsman; hence, the petitioner is barred from seeking recourse at the CA because
the ground she would invoke was not considered at all at the Ombudsman level. At
the same time, the petitioner who had the same opportunity to rebut the belatedlyfurnished affidavits of the private respondents witnesses was not denied and
cannot now claim denial of due process because she did not take advantage of the
opportunity opened to her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondents failure to furnish her copies of the
affidavits of witnesses) and on questions relating to the appreciation of the evidence
on record. The Ombudsman acted on this motion by issuing its Order of January 17,
2003 belatedly furnishing her with copies of the private respondents witnesses,
together with the directive to file, within ten (10) days from receipt of this Order,
such pleading which she may deem fit under the circumstances.
Given this opportunity to act on the belatedly-furnished affidavits, the petitioner
simply chose to file a Manifestation where she took the position that The order of
the Ombudsman dated 17 January 2003 supplying her with the affidavits of the
complainant does not cure the 04 November 2002 order, and on this basis prayed
that the Ombudsmans decision be reconsidered and the complaint dismissed for
lack of merit.
For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioners
motion.

49

In the February 12, 2003 Order, the Ombudsman denied the petitioners motion
for reconsideration after finding no basis to alter or modify its ruling. Significantly,
the Ombudsman fully discussed in this Order the due process significance of the
petitioners failure to adequately respond to the belatedly-furnished affidavits. The
Ombudsman said:ChanRoblesVirtualawlibrary
Undoubtedly, the respondent herein has been furnished by this Office with
copies of the affidavits, which she claims she has not received. Furthermore, the
respondent has been given the opportunity to present her side relative thereto,
however, she chose not to submit countervailing evidence or argument. The
respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court
held in the case of People v. Acot, 232 SCRA 406, that a party cannot feign denial
of due process where he had the opportunity to present his side. This becomes all
the more important since, as correctly pointed out by the complainant, the decision
issued in the present case is deemed final and unappealable pursuant to Section 27 of
Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite
the clear provisions of the law and the rules, the respondent herein was given the
opportunity not normally accorded, to present her side, but she opted not to do so
which is evidently fatal to her cause. [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioners
cause is a lost one, not only for her failure to exhaust her available administrative
remedy, but also on due process grounds. The law can no longer help one who had
been given ample opportunity to be heard but who did not take full advantage of the
proffered chance.45
Ruivivar applies with even greater force to the present Petition because here the
affidavits of Sen. Estradas co-respondents were furnished to him before the
Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the affidavits were
furnished after the Ombudsman issued a decision.
Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and
Duterte v. Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful
reading of these cases, however, would show that they do not stand on all fours with
the present case. In Tatad, this Court ruled that the inordinate delay in terminating
the preliminary investigation and filing the information [by the Tanodbayan] in the
present case is violative of the constitutionally guaranteed right of the petitioner to
due process and to a speedy disposition of the cases against him.48 The Tanodbayan
took almost three years to terminate the preliminary investigation, despite
Presidential Decree No. 911s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte, where
the petitioners were merely asked to comment and were not asked to file counter-

affidavits as is the proper procedure in a preliminary investigation. Moreover, in


Duterte, the Ombudsman took four years to terminate its preliminary investigation.
As we follow the reasoning in Justice Velascos dissent, it becomes more apparent
that Sen. Estradas present Petition for Certiorari is premature for lack of filing of a
motion for reconsideration before the Ombudsman. When the Ombudsman gave Sen.
Estrada copies of the counter-affidavits and even waited for the lapse of the given
period for the filing of his comment, Sen. Estrada failed to avail of the opportunity to
be heard due to his own fault. Thus, Sen. Estradas failure cannot in any way be
construed as violation of due process by the Ombudsman, much less of grave abuse
of discretion. Sen. Estrada has not filed any comment, and still chooses not to.
Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and
should be summarily dismissed.
In his verification and certification of non-forum shopping in the present petition
filed on 7 May 2014, Sen. Estrada stated:ChanRoblesVirtualawlibrary
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07
April 2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397, raising as sole issue the
finding of probable cause in the Joint Resolution dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint Resolution
prayed that the Ombudsman reconsider and issue a new resolution dismissing the
charges against him. However, in this Motion for Reconsideration, Sen. Estrada
assailed the Ombudsmans 27 March 2014 Joint Order denying his Request, and that
such denial is a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule
[Rule 112, Section 4 of the Rules of Court] and principles. A reading of the Joint
Resolution will reveal that various pieces of evidence which Senator Estrada was not
furnished with hence, depriving him of the opportunity to controvert the same
were heavily considered by the Ombudsman in finding probable cause to charge him
with Plunder and with violations of Section 3(e) of R.A. No. 3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada filed a Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of
New Witnesses and Other Filings, pursuant to the right of a respondent to examine
the evidence submitted by the complainant which he may not have been furnished

50

(Section 3[b], Rule 112 of the Rules of Court), and to have access to the evidence
on record (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator
Estrada and the laws vigilance in protecting the rights of an accused, the Special
Panel of Investigators, in an Order dated 27 March 2014, unceremoniously denied
the request on the ground that there is no provision under this Offices Rules of
Procedure which entitles respondent to be furnished all the filings by the other
parties x x x x. (Order dated 27 March 2013, p. 3)

Gregoria G. Buenaventuras Counter-Affidavit dated 06 March 2014; and


Philippine Daily Inquirer Online Edition news article entitled Benhur Luy
upstages Napoles in Senate Hearing by Norman Bordadora and TJ Borgonio,
published on 06 March 2014,
none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.
xxxx

As such, Senator Estrada was not properly apprised of the evidence offered against
him, which were eventually made the bases of the Ombudsmans finding of probable
cause.50
The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4 June
2014 Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for
Reconsideration with the Ombudsman the violation of his right to due process, the
same issue he is raising in this petition.
In the verification and certification of non-forum shopping attached to his petition
docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the
pendency of the present petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his petition in G.R. Nos.
212761-62, Sen. Estrada again mentioned the Ombudsmans 27 March 2014 Joint
Order denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsmans finding
of probable cause, which he maintains is without legal or factual basis, but also that
such finding of probable cause was premised on evidence not disclosed to him,
including those subject of his Request to be Furnished with Copies of CounterAffidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings
dated 20 March 2014.
In particular, the Office of the Ombudsman used as basis for the Joint Resolution
the following documents -

II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED
JOINT RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT
ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS
OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION, BUT ALSO
VIOLATED SEN. ESTRADAS CONSTITUTIONAL RIGHT TO DUE PROCESS
OF LAW AND TO EQUAL PROTECTION OF THE LAWS.
xxxx
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estradas comment to the voluminous documents
comprising the documents it furnished Sen. Estrada to a non-extendible period of
five (5) days, making it virtually impossible for Sen. Estrada to adequately study the
charges leveled against him and intelligently respond to them. The Joint Order also
failed to disclose the existence of other counter-affidavits and failed to furnish Sen.
Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of
probable cause was the sole issue he raised before the Ombudsman in his Motion
for Reconsideration dated 7 April 2014 is obviously false.

Alexis G. Sevidals Counter-Affidavits dated 15 January and 24 February 2014;


Dennis L. Cunanans Counter-Affidavits both dated 20 February 2014;
Francisco B. Figuras Counter-Affidavit dated 08 January 2014;

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans
4 June 2014 Joint Order which denied his motion for reconsideration of the 28
March 2014 Joint Resolution, Sen. Estrada did not mention that the 4 June 2014
Joint Order stated that the Ombudsman held in abeyance the disposition of the
motions for reconsideration in this proceeding in light of its grant to [Sen. Estrada] a

Ruby Tuasons Counter-Affidavits both dated 21 February 2014;

51

period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond
to the above-named co-respondents claims.
Sen. Estrada claims that his rights were violated but he flouts the rules himself.
The rule against forum shopping is not limited to the fulfillment of the requisites of
litis pendentia.52 To determine whether a party violated the rule against forum
shopping, the most important factor to ask is whether the elements of litis pendentia
are present, or whether a final judgment in one case will amount to res judicata in
another.53 Undergirding the principle of litis pendentia is the theory that a party is
not allowed to vex another more than once regarding the same subject matter and for
the same cause of action. This theory is founded on the public policy that the same
matter should not be the subject of controversy in court more than once in order that
possible conflicting judgments may be avoided, for the sake of the stability in the
rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed was a petition for certiorari,
a recourse that in the usual course and because of its nature and purpose is not
covered by the rule on forum shopping. The exception from the forum shopping rule,
however, is true only where a petition for certiorari is properly or regularly invoked
in the usual course; the exception does not apply when the relief sought, through a
petition for certiorari, is still pending with or has as yet to be decided by the
respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a
motion for reconsideration of the order assailed via a petition for certiorari under
Rule 65, as in the present case. This conclusion is supported and strengthened by
Section 1, Rule 65 of the Revised Rules of Court which provides that the
availability of a remedy in the ordinary course of law precludes the filing of a
petition for certiorari; under this rule, the petitions dismissal is the necessary
consequence if recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in
possible conflicting rulings, or at the very least, to complicated situations, between
the RTC and the Court of Appeals. An extreme possible result is for the appellate
court to confirm that the RTC decision is meritorious, yet the RTC may at the same
time reconsider its ruling and recall its order of dismissal. In this eventuality, the
result is the affirmation of the decision that the court a quo has backtracked on. Other
permutations depending on the rulings of the two courts and the timing of these
rulings are possible. In every case, our justice system suffers as this kind of sharp
practice opens the system to the possibility of manipulation; to uncertainties when
conflict of rulings arise; and at least to vexation for complications other than conflict
of rulings. Thus, it matters not that ultimately the Court of Appeals may completely
agree with the RTC; what the rule on forum shopping addresses are the possibility
and the actuality of its harmful effects on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging


violation of due process by the Ombudsman even as his Motion for Reconsideration
raising the very same issue remained pending with the Ombudsman. This is plain and
simple forum shopping, warranting outright dismissal of this Petition.cralawred
SUMMARY
The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its
supporting affidavits and documents, fully complied with Sections 3 and 4 of Rule
112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules
of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the
Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the
Ombudsman require the investigating officer to furnish the respondent with copies of
the affidavits of the complainant and affidavits of his supporting witnesses. Neither
of these Rules require the investigating officer to furnish the respondent with copies
of the affidavits of his co-respondents. The right of the respondent is only to
examine the evidence submitted by the complainant, as expressly stated in Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has
unequivocally ruled in Paderanga that Section 3, Rule 112 of the Revised Rules of
Criminal Procedure expressly provides that the respondent shall only have the right
to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions
to the parties or their witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine. Moreover, Section 4 (a, b and c) of
Rule II of the Ombudsmans Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses. There is no law or rule requiring the
investigating officer to furnish the respondent with copies of the affidavits of his corespondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even
furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents
whom he specifically named, as well as the counter-affidavits of some of other corespondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyance
the disposition of the motions for reconsideration because the Ombudsman granted
Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally
respond to the claims made by his co-respondents. The Ombudsman faithfully
complied with the existing Rules on preliminary investigation and even
accommodated Sen. Estrada beyond what the Rules required. Thus, the Ombudsman
could not be faulted with grave abuse of discretion. Since this is a Petition for
Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion
on the part of the Ombudsman.

52

The constitutional due process requirements mandated in Ang Tibay, as amplified in


GSIS, are not applicable to preliminary investigations which are creations of
statutory law giving rise to mere statutory rights. A law can abolish preliminary
investigations without running afoul with the constitutional requirements of due
process as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for
preliminary investigations do not comply, and were never intended to comply, with
Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with
finality rights and obligations of parties, while administrative investigations
governed by Ang Tibay, as amplified in GSIS, so adjudicate. Ang Tibay, as amplified
in GSIS, requires substantial evidence for a decision against the respondent in the
administrative case. In preliminary investigations, only likelihood or probability of
guilt is required. To apply Ang Tibay, as amplified in GSIS, to preliminary
investigations will change the quantum of evidence required to establish probable
cause. The respondent in an administrative case governed by Ang Tibay, as amplified
in GSIS, has the right to an actual hearing and to cross-examine the witnesses against
him. In preliminary investigations, the respondent has no such rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the
hearing officer must be impartial and cannot be the fact-finder, investigator, and
hearing officer at the same time. In preliminary investigations, the same public
officer may be the investigator and hearing officer at the same time, or the factfinder, investigator and hearing officer may be under the control and supervision of
the same public officer, like the Ombudsman or Secretary of Justice. This explains
why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations.
To now declare that the guidelines in Ang Tibay, as amplified in GSIS, are
fundamental and essential requirements in preliminary investigations will render all
past and present preliminary investigations invalid for violation of constitutional due
process. This will mean remanding for reinvestigation all criminal cases now
pending in all courts throughout the country. No preliminary investigation can
proceed until a new law designates a public officer, outside of the prosecution
service, to determine probable cause. Moreover, those serving sentences by final
judgment would have to be released from prison because their conviction violated
constitutional due process.
EN BANC

Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order
in OMB-C-C-13-0313 denying his Request, which is the subject of the present
Petition. He should have filed a Motion for Reconsideration, in the same manner that
he filed a Motion for Reconsideration of the 15 May 2014 Order denying his motion
to suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari
will lie only if there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law against the acts of the public respondent.56 The plain,
speedy and adequate remedy expressly provided by law is a Motion for
Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estradas
failure to file a Motion for Reconsideration renders this Petition premature.
Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the
Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue
that Sen. Estrada is raising in this Petition. Thus, Sen. Estradas present Petition for
Certiorari is not only premature, it also constitutes forum shopping.
WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.
SO ORDERED.cralawlawlibrary
Sereno, (Chief Justice),Peralta, Del Castillo, Villarama, Jr., Perez, Mendoza, Reyes,
Perlas-Bernabe, and Jardeleza, JJ., concur.
Velasco, Jr., J., I register my Dissenting Opinion.
Leonardo-De Castro, J., I join the Dissent of Justice Velasco.
Brion, J.,* Justice Brion left his vote; see his Dissenting Opinion.
Bersamin, J., I join the Dissent of J. Velasc
Antonio D. Paguia; for National Labor Union.

[G.R. No. 46496. February 27, 1940.]

Claro M. Recto; for petitioner "Ang Tibay."

ANG TIBAY, represented by TORIBIO TEODORO, manager and proprietor, and


NATIONAL WORKERS BROTHERHOOD, Petitioners, v. THE COURT OF
INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., Respondents.

Jose M. Casal; for National Workers Brotherhood.

Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial
Relations.

1. COURT OF INDUSTRIAL RELATIONS; POWER. The nature of the Court of


Industrial Relations and of its power is extensively discussed in the decision.

SYLLABUS

53

2. ID.; ID.; TECHNICAL RULES OF PROCEDURE; DUE PROCESS OF LAW.


The Court of Industrial Relations is not narrowly constrained by technical rules of
procedure, and Commonwealth Act No. 103 requires it to act according to justice and
equity and substantial merits of the case, without regard to technicalities or legal
evidence but may inform its mind in such manner as it may deem just and equitable
(Goseco v. Court of Industrial Relations Et. Al., G. R. No. 46673). The fact,
however, that the Court of Industrial Relations may be said to be free from the
rigidity of certain procedural requirements does not mean that it can, in justiciable
cases coming before it, entirely ignore or disregard the fundamental and essential
requirements of due process in trials and investigations of an administrative
character.

motion for a new trial should be, and the same is hereby, granted, and the entire
record of this case shall be remanded to the Court of Industrial Relations, with
instruction that it re-open the case, receive all such evidence as may be relevant, and
otherwise proceed in accordance with the requirements set forth in the decision.

3. ID.; ID.; ID.; ID.; CARDINAL PRIMARY RIGHTS. There are cardinal
primary rights which must be respected even in proceedings of this character. The
first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof.
Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented. While the duty to deliberate does not impose the
obligation to decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support its decision. Not only must there be
some evidence to support a finding or conclusion, but the evidence must be
substantial. The decision must be rendered on the evidence presented at the hearing,
or at least contained in the record and disclosed to the parties affected. The Court of
Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate in arriving at a decision. The Court of Industrial
Relations should, in all controvercial questions, render its decision in such a manner
that the parties to the proceeding can know the various issues involved, and the
reasons for the decisions rendered. The performance of this duty is inseparable from
the authority conferred upon it.

The Solicitor-General in behalf of the respondent Court of Industrial Relations in the


above-entitled case has filed a motion for reconsideration and moves that, for the
reasons stated in his motion, we reconsider the following legal conclusions of the
majority opinion of this Court:jgc:chanrobles.com.ph

4. ID.; ID.; ID.; ID.; ID.; CASE AT BAR; NEW TRIAL GRANTED. In the light
of the foregoing fundamental principles, it is sufficient to observe here that, except as
to the alleged agreement between the Ang Tibay and the National Workers
Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a
factual basis upon which to predicate, in a rational way, a conclusion of law. This
result, however, does not now preclude the concession of a new trial prayed for by
the respondent National Labor Union, Inc. The interest of justice would be better
served if the movant is given opportunity to present at the hearing the documents
referred to in his motion and such other evidence as may be relevant to the main
issue involved. The legislation which created the Court of Industrial Relations and
under which it acts is new. The failure to grasp the fundamental issue involved is not
entirely attributable to the parties adversely affected by the result. Accordingly, the

DECISION
LAUREL, J.:

"1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de
duracion o que no sea para una determinada, termina o bien por voluntad de
cualquiera de las partes o cada vez que llega el plazo fijado para el pago de los
salarios segun costumbre en la localidad o cuando se termine la obra;
"2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual
ya colectivamente, con ella, sin tiempo fijo, y que se han visto obligados a cesar en
sus trabajos por haberse declarado paro forzoso en la fabrica en la cual trabajan,
dejan de ser empleados u obreros de la misma;
"3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con
sus obreros sin tiempo fijo de duracion y sin ser para una obra determinada y que se
niega a readmitir a dichos obreros que cesaron como consecuencia de un paro
forzoso, no es culpable de practica injusta ni incurre en la sancion penal del articulo
5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a
que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales
ya han dejado de ser empleados suyos por terminacion del contrato en virtud del
paro."cralaw virtua1aw library
The respondent National Labor Union, Inc., on the other hand, prays for the vacation
of the judgment rendered by the majority of this Court and the remanding of the case
to the Court of Industrial Relations for a new trial, and avers:jgc:chanrobles.com.ph
"1. That Toribio Teodoros claim that on September 26,1938, there was shortage of
leather soles in ANG TIBAY making it necessary for him to temporarily lay off the
members of the National Labor Union Inc., is entirely false and unsupported by the

54

records of the Bureau of Customs and the Books of Accounts of native dealers in
leather.
"2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a
scheme adopted to systematically discharge all the members of the National Labor
Union, Inc., from work.
"3. That Toribio Teodoros letter to the Philippine Army dated September 29, 1938,
(re supposed delay of leather soles from the States) was but a scheme to
systematically prevent the forfeiture of this bond despite the breach of his
CONTRACT with the Philippine Army.
"4. That the National Workers Brotherhood of ANG TIBAY is a company or
employer union dominated by Toribio Teodoro, the existence and functions of which
are illegal. (281 U. S., 548, petitioners printed memorandum, p. 25.)
"5. That in the exercise by the laborers of their rights to collective bargaining,
majority rule and elective representation are highly essential and indispensable.
(Sections 2 and 5, Commonwealth Act No. 213.)
"6. That the century provisions of the Civil Code which had been (the) principal
source of dissensions and continuous civil war in Spain cannot and should not be
made applicable in interpreting and applying the salutary provisions of a modern
labor legislation of American origin where industrial peace has always been the rule.
"7. That the employer Toribio Teodoro was guilty of unfair labor practice for
discriminating against the National Labor Union, Inc., and unjustly favoring the
National Workers Brotherhood.
"8. That the exhibits hereto attached are so inaccessible to the respondents that even
with the exercise of due diligence they could not be expected to have obtained them
and offered as evidence in the Court of Industrial Relations.
"9. That the attached documents and exhibits are of such far-reaching importance and
effect that their admission would necessarily mean the modification and reversal of
the judgment rendered herein."cralaw virtua1aw library
The petitioner, Ang Tibay, has filed an opposition both to the motion for
reconsideration of the respondent Court of Industrial Relations and to the motion for
new trial of the respondent National Labor Union, Inc.
In view of the conclusion reached by us and to be herein- after stated with reference
to the motion for a new trial of the respondent National Labor Union, Inc., we are of
the opinion that it is not necessary to pass upon the motion for reconsideration of the

Solicitor-General. We shall proceed to dispose of the motion for new trial of the
respondent labor union. Before doing this, however, we deem it necessary, in the
interest of orderly procedure in cases of this nature, to make several observations
regarding the nature of the powers of the Court of Industrial Relations and emphasize
certain guiding principles which should be observed in the trial of cases brought
before it. We have re-examined the entire record of the proceedings had before the
Court of Industrial Relations in this case, and we have found no substantial evidence
to indicate that the exclusion of the 89 laborers here was due to their union affiliation
or activity. The whole transcript taken contains what transpired during the hearing
and is more of a record of contradictory and conflicting statements of opposing
counsel, with sporadic conclusion drawn to suit their own views. It is evident that
these statements and expressions of views of counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose functions are specifically
stated in the law of its creation (Commonwealth Act No. 103). It is more an
administrative board than a part of the integrated judicial system of the nation. It is
not intended to be a mere receptive organ of the Government. Unlike a court of
justice which is essentially passive, acting only when its jurisdiction is invoked and
deciding only cases that are presented to it by the parties litigant, the function of the
Court of Industrial Relations, as will appear from perusal of its organic law, is more
active, affirmative and dynamic. It not only exercises judicial or quasijudicial
functions in the determination of disputes between employers and employees but its
functions are far more comprehensive and extensive. It has jurisdiction over the
entire Philippines, to consider, investigate, decide, and settle any question, matter
controversy or dispute arising between, and/or affecting, employers and employees
or laborers, and landlords and tenants or farm-laborers, and regulate the relations
between them, subject to, and in accordance with, the provisions of Commonwealth
Act No. 103 (section 1). It shall take cognizance for purposes of prevention,
arbitration, decision and settlement, of any industrial or agricultural dispute causing
or likely to cause a strike or lockout, arising from differences as regards wageshares
or compensation, hours of labor or conditions of tenancy or employment, between
employers and employees or laborers and between landlords and tenants or farmlaborers, provided that the number of employees, laborers or tenants or farm-laborers
involved exceeds thirty, and such industrial or agricultural dispute is submitted to the
Court by the Secretary of Labor or by any or both of the parties to the controversy
and certified by the Secretary of Labor as existing and proper to be death with by the
Court for the sake of public interest. (Section A, ibid.) It shall, before hearing the
dispute and in the course of such hearing, endeavor to reconcile the parties and
induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4,
ibid.) When directed by the President of the Philippines, it shall investigate and study
all pertinent facts related to the industry concerned or to the industries established in
a designated locality, with a view to determining the necessity and fairness of fixing
and adopting for such industry or locality a minimum wage or share of laborers or
tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or

55

lessees to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration


in the settlement of industrial disputes; may employ mediation or conciliation for
that purpose, or recur to the more effective system of official investigation and
compulsory arbitration in order to determine specific controversies between labor
and capital in industry and in agriculture. There is in reality here a mingling of
executive and judicial functions, which is a departure from the rigid doctrine of the
separation of governmental powers.

(3) "While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. A decision with absolutely nothing to support it is
a nullity, a place when directly attached." (Edwards v. McCoy, supra.) This principle
emanates from the more fundamental principle that the genius of constitutional
government is contrary to the vesting of unlimited power anywhere. Law is both a
grant and a limitation upon power.

In the case of Goseco v. Court of Industrial Relations Et. Al., G. R. No. 46673,
promulgated September 13, 1939, we had occasion to point out that the Court of
Industrial Relations is not narrowly constrained by technical rules of procedure, and
the Act requires it to "act according to justice and equity and substantial merits of the
case, without regard to technicalities or legal forms and shall not be bound by any
technical rules of legal evidence but may inform its mind in such manner as it may
deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be
restricted to the specific relief claimed or demands made by the parties to the
industrial or agricultural dispute, but may include in the award, order or decision any
matter or determination which may be deemed necessary or expedient for the
purpose of settling the dispute or of preventing further industrial or agricultural
disputes. (Section 13, ibid.) And in the light of this legislative policy, appeals to this
Court have been especially regulated by the rules recently promulgated by this Court
to carry into effect the avowed legislative purpose. The fact, however, that the Court
of Industrial Relations may be said to be free from the rigidity of certain procedural
requirements does not mean that it can, in justiciable cases coming before it, entirely
ignore or disregard the fundamental and essential requirements of due Process in
trials and investigations of an administrative character. There are cardinal primary
rights which must be respected even in proceedings of this character:chanrob1es
virtual 1aw library

(4) Not only must there be some evidence to support a finding or conclusion (City of
Manila v. Agustin, G. R. No. 45844, promulgated November 29, 1937, XXXVI O. G.
1335), but the evidence must be "substantial." (Washington, Virginia & Maryland
Coach Co. v. National Labor Relations Board, 301 U. S. 142, 147, 57 S. Ct. 648,
650, 81 Law ed 965.) Substantial evidence is more than a mere scintilla It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion."cralaw virtua1aw library

(1) The first of these rights is the right to a hearing which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. In the language of Chief Justice Hughes, in Morgan v. U. S., 304 U. S. 1, 58
S. Ct. 773, 999, 82 Law. ed 1129, "the liberty and property of the citizen shall be
protected by the rudimentary requirements of fair play."cralaw virtua1aw library
(2) Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented. (Chief Justice Hughes in Morgan v. U. S. 298 U. S.
468, 56 S. Ct. 906, 80 Law. ed. 1288.) In the language of this Court in Edwards v.
McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty
on the part of the board to consider it, is vain. Such right is conspicuously futile if the
person or persons to whom the evidence is presented can thrust it aside without
notice or consideration."cralaw virtua1aw library

(Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985,


989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15;
Ballston-stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d
758, 760.) . . . The statute provides that the rules of evidence prevailing in courts of
law and equity shall not be controlling. The obvious purpose of this and similar
provisions is to free administrative boards from the compulsion of technical rules so
that the mere admission of matter which would be deemed incompetent in judicial
proceedings would not invalidate the administrative order. (Interstate Commerce
Commission v. Baird, 194 U. S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860;
Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 93,
33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene & Southern Ry. Co.,
265 U. S. 274, 288, 44 S. Ct. 565, 569, 68 Law. ed. lola; Tagg Bros. & Moorhead v.
United States, 280 U. S. 420, 442, 50 S. Ct. 220, 225, 74 Law. ed. 624.) But this
assurance of a desirable flexibility in administrative procedure does not go so far as
to justify orders without a basis in evidence having rational probative force. Mere
uncorroborated hearsay or rumor does not constitute substantial evidence.
(Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law.
ed. No. 4, Adv. Op., p. 131.)"
(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. (Interstate
Commence Commission v. L. & N. R. Co., 227 U. S. 88, 33 S. Ct. 185, 57 Law. ed.
431. )Only by confining the administrative tribunal to the evidence disclosed to the
parties, can the latter be protected in their right to know and meet the case against
them. It should not, however, detract from their duty actively to see that the law is
enforced, and for that purpose, to use the authorized legal methods of securing
evidence and informing itself of facts material and relevant to the controversy.
Boards of inquiry may be appointed for the purpose of investigating and determining

56

the facts in any given case, but their report and decision are only advisory. (Section
9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any
industrial or agricultural dispute of any matter under its consideration or advisement
to a local board of inquiry, a provincial fiscal, a justice of the peace or any public
official in any part of the Philippines for investigation, report and recommendation,
and may delegate to such board or public official such powers and functions as the
said Court of Industrial Relations may deem necessary, but such delegation shall not
affect the exercise of the Court itself of any of its powers (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or
his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision. It may be that the
volume of work is such that it is literally impossible for the titular heads of the Court
of Industrial Relations personally to decide all controversies coming before them. In
the United States the difficulty is solved with the enactment of statutory authority
authorizing examiners or other subordinates to render final decision, with right to
appeal to board or commission, but in our case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in such a manner that the parties to the proceeding can know the vario
issues involved, and the reasons for the decisions rendered. The performance of this
duty is inseparable from the authority conferred upon it.
In the light of the foregoing fundamental principles, it is sufficient to observe here
that, except as to the alleged agreement between the Ang Tibay and the National
Workers Brotherhood (appendix A), the record is barren and does not satisfy the
thirst for a factual basis upon which to predicate, in a rational way, a conclusion of
law.

This result, however, does not now preclude the concession of a new trial prayed for
by the respondent National Labor Union, Inc. In the portion of the petition
hereinabove quoted of the National Labor Union, Inc., it is alleged that "the
supposed lack of leather material claimed by Toribio Teodoro was but a scheme
adopted to systematically discharge all the members of the National Labor Union,
Inc., from work" and this averment is desired to be proved by the petitioner with the
"records of the Bureau of Customs and the Books of Accounts of native dealers in
leather" ; that "the National Workers Brotherhood Union of Ang Tibay is a company
or employer union dominated by Toribio Teodoro, the existence and functions of
which are illegal." Petitioner further alleges under oath that the exhibits attached to
the petition to prove his substantial averments "are so inaccessible to the respondents
that even with the exercise of due diligence they could not be expected to have
obtained them and offered as evidence in the Court of Industrial Relations", and that
the documents attached to the petition "are of such far reaching importance and
effect that their admission would necessarily mean the modification and reversal of
the judgment rendered therein." We have considered the reply of Ang Tibay and its
arguments against the petition. By and large, after considerable discussion, we have
come to the conclusion that the interest of justice would be better served if the
movant is given opportunity to present at the hearing the documents referred to in his
motion and such other evidence as may be relevant to the main issue involved. The
legislation which created the Court of Industrial Relations and under which it acts is
new. The failure to grasp the fundamental issue involved is not entirely attributable
to the parties adversely affected by the result. Accordingly, the motion for a new trial
should be, and the same is hereby granted, and the entire record of this case shall be
remanded to the Court of Industrial Relations, with instruction that it reopen the case,
receive all such evidence as may be relevant, and otherwise proceed in accordance
with the requirements set forth hereinabove. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

SECOND DIVISION
JULITO F. FABRERO, and HON.
NATHANIEL A. LOBIGAS, in CARPIO MORALES, J.,
their capacity as Hearing Officers Acting Chairperson,
RODOLFO M. CUENCA, G.R. No. 146214
Petitioner,
- versus -

of the SECURITIES AND TINGA,


EXCHANGE COMMISSION; VELASCO, JR.,
PHILIPPINE NATIONAL NACHURA,* and
CONSTRUCTION CORPORATION, REYES,* JJ.

HON. ALBERTO P. ATAS, Present:

57

ASSET PRIVATIZATION TRUST,

PNCC. The SICD Decision was affirmed by the SEC in SEC Case No. AC 807,
which, in turn, was upheld by the CA in its assailed November 29, 2000 Decision.

PHILIPPINE NATIONAL BANK,


DEVELOPMENT BANK OF
THE PHILIPPINES, NATIONAL

The Facts

DEVELOPMENT COMPANY,
PHILIPPINE EXPORT AND
FOREIGN LOAN GUARANTEE
CORPORATION, and

Petitioner was an incorporator, President, and Chief Executive Officer of the then
Construction Development Corporation of the Philippines (CDCP), now PNCC,
from its incorporation in 1966 until 1983. Sometime in 1977, CDCP was granted a
franchise under Presidential Decree No. 1113 to construct, operate, and maintain toll
facilities of the North and South Luzon Expressway. In the course of its operations, it
incurred substantial credit obligations from both private and government sources.

GOVERNMENT SERVICE Promulgated:


INSURANCE SYSTEM,
Respondents. October 5, 2007
x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

The Case

In this Petition for Review on Certiorari[1] of the adverse November 29, 2000
Decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 60366, petitioner
Rodolfo M. Cuenca, in effect, questions the July 10, 2000 Decision[3] of the
Securities and Exchange Commission (SEC) Securities Investigation and Clearing
Department (SICD) in SICD SEC Case No. 05-96-5357 entitled Rodolfo M. Cuenca
v. Philippine National Construction Corporation (PNCC), et al., which declared
defendants-government financial institutions (GFIs) as majority stockholders of the

However, its unpaid obligations ballooned so much that by 1983, it became


impossible for it to settle its maturing and overdue accounts with various GFIs,
namely, the Philippine National Bank (PNB), Development Bank of the Philippines
(DBP), National Development Company (NDC), Government Service Insurance
System (GSIS), Land Bank of the Philippines (LBP), and Philippine Export and
Foreign Loan Guarantee Corporation (PEFLGC), now known as the Trade and
Investment Development Corporation of the Philippines.
On February 23, 1983, then President Ferdinand E. Marcos issued Letter of
Instruction No. (LOI) 1295,[4] directing the creditor GFIs to convert into CDCPs
shares of stock the following: (1) all of the direct obligations of CDCP and those of
its wholly-owned subsidiaries, including, but not limited to loans, credits, accrued
interests, fees and advances in any currency outstanding as of December 31, 1982;
(2) the direct obligations of CDCP maturing in 1983; and (3) obligations maturing in
1983 which were guaranteed by the GFIs.

On April 25, 1983, a special stockholders meeting, presided by petitioner, was held
whereby stockholders representing more than two-thirds (2/3) of the outstanding
capital stock of CDCP approved the increase of its authorized capital stock from PhP
1.6 to 2.7 billion in accordance with LOI 1295. Thus, the CDCP, pursuant to said
letter, converted some of its obligations to GFIs into equity.

58

Consequently, CDCP issued common shares to DBP, NDC, GSIS, LBP, PEFLGC,
and preferred D shares to PNB in consideration for the extinguishment of some of
CDCPs outstanding loan obligations to said GFIs, all of which were duly recorded in
its corporate books. Subsequently, in December 1983, the SEC approved the increase
of CDCPs authorized capital stock, and the corresponding CDCP Certificates of
Stock were issued in the names of DBP, GSIS, LBP, PEFLGC, and PNB, to wit:

Certificates of stock issued Name No. of shares issued to GFIs


Cert. of Stock No. 40269[5] DBP 26,987,477 common shares
Cert. of Stock No. 40270[6] PEFLGC 37,584,577 common shares

Meanwhile, sometime in 1988, pursuant to Administrative Order Nos. 14 and 64,


DBP, PNB, PEFLGC, and NDC transferred their interests in PNCC to the Republic
of the Philippines which in turn conveyed them to the Asset Privatization Trust
(APT), now the Privatization and Management Office, for disposition to the private
sector pursuant to the governments privatization program.

On May 31, 1996, more than a decade after LOI 1295 was implemented, petitioner
filed a complaint before the SEC SICD docketed as SEC Case No. 05-96-5357
entitled Rodolfo M. Cuenca v. PNCC, et al., for the SEC to determine and declare
whether the GFIs were registered stockholders of PNCC and the number of shares
held by each of them and to compel PNCC to call and hold regular stockholders
meetings and election of directors every year.

Cert. of Stock No. 40271[7] GSIS 47,490,000 common shares


Cert. of Stock No. 40272 LBP 657,836 common shares
Cert. of Stock No. N[8] PNB 25,500,000 Preferred Class D

The total subscription of the above issuance of shares of stock pursuant to LOI 1295
amounted to PhP 1,405,202,000 or 1.4 billion.

Thus, with the implementation of LOI 1295, respondents-GFIs became the majority
stockholders of CDCP to the extent of 70% of the authorized capital stocks. The
change in the corporations ownership was made public through various
announcements.[9] CDCP was later renamed to PNCC to reflect the Philippine
Government stockholding, and became a government-acquired asset corporation.
Consequently, the various GFIs were given seats in the Board of Directors of PNCC
and participated in the management of the company.

Petitioner averred that while PNCC issued the above specified certificates of stock to
the GFIs pursuant to LOI 1295, the GFIs however refused to cancel and never did
cancel the loans in their books as payment for the shares issued in their names by
PNCC as they considered it to be a diminution of the value of their investments.
Thus, petitioner claimed that some of the GFIs refused to accept delivery of the stock
certificates from PNCC while others were not even aware of the issuance of the
certificates of stock in their names. Consequently, respondents-GFIs continued to
charge and receive payments for their loan and interest charges from PNCC though
these loans were supposed to have been converted into common stock in 1983
pursuant to LOI 1295.

In March 1998, with the idea of spinning-off its toll-way operations, PNCC
scheduled a special stockholders meeting on April 14, 1998. On March 31, 1998,
petitioner filed before the SEC SICD an Urgent Application for Temporary
Restraining Order (TRO) and Writ of Preliminary Injunction seeking to enjoin PNCC
from allowing the GFIs to vote their shares of stock in PNCC, either issued or
subscribed, pursuant to LOI 1295, and from exercising any right arising from the
shares.

On August 19, 1987, PNCC issued Certificate of Stock No. 43032 in the name of
NDC for 14,699,000 shares of common stock.
On April 14, 1998, the date of the special stockholders meeting of PNCC, the SEC
SICD, through its hearing officer, granted petitioners urgent application and issued a
TRO enjoining the GFIs from voting their shares of stock in PNCC.[10] Thereafter,

59

the parties presented their respective preliminary evidence during the hearings for the
issuance of a preliminary injunction.

sense of fairness and justness in the determination of the merits of its claims. No
Motion for Reconsideration of the April 6, 2000 Order was filed by petitioner.

Meanwhile, despite the pendency of SICD SEC Case No. 05-96-5357, petitioner
filed a Third Amended Complaint[11] before the Makati City Regional Trial Court
(RTC), Branch 142, docketed as Civil Case No. 95-1356 and entitled Rodolfo M.
Cuenca, for and in behalf of PNCC v. APT, et al. for (1) enforcement and strict
compliance with LOI 1295; (2) cancellation of all penalties, interest, and surcharges
accrued after December 31, 1982; (3) enjoinment of the GFIs from receiving any real
or personal properties from PNCC; and (4) cancellation of the transfer of Lot 3,
Block 1, RL-04-000001 covered by Transfer Certificate of Title (TCT) No. 34996 to
APT.

Consequently, SEC SICD Director Daisy Besa-De Asis designated respondents


Hearing Officers Alberto P. Atas, Julito F. Fabrero, and Nathaniel A. Lobigas as the
three (3)-person Hearing Panel.

On September 8, 1998, the SEC SICD issued an Order[12] granting the preliminary
injunction. PNCCs Motion for Reconsideration was then denied in the December 21,
1998 SEC SICD Omnibus Order.[13] Thus, on January 8, 1999, PNCC filed a
Petition for Certiorari[14] before the SEC en banc to review and set aside the
September 8, 1998 and December 21, 1998 SEC SICD Orders, docketed as SEC-EB
Case No. 640. On March 14, 2000, the SEC en banc issued an order dismissing
PNCCs petition. Consequently, PNCC brought before the CA the SEC en banc
March 14, 2000 Order through a Petition for Review,[15] docketed as CA-G.R. SP
No. 58117.

In the meantime, on May 20, 1999, petitioner filed a Motion to Admit Amended
Complaint in SEC SICD Case No. 05-96-5357, which was granted despite
oppositions from PNCC and the GFIs. Respondents PNCC and GFIs then filed their
respective answers to the amended complaint.

On March 23, 2000, PNCC filed a Motion to Designate Hearing Panel[16] on the
ground that the instant case would be better heard and resolved by a hearing panel of
three than by a sole hearing officer, considering the interests the Philippine
Government holds in PNCC through the GFIs. This was opposed by petitioner.
Nonetheless, while not finding any valid reason for said motion, respondent SEC
SICD Hearing Officer Alberto P. Atas granted PNCCs motion through the April 6,
2000 Order[17] to allay respondent PNCCs fear that it may not be able to obtain a

During the hearings of the instant case, through a May 4, 2000 Order, the Hearing
Panel admitted almost all of petitioners exhibits. On May 8, 2000, PNCC filed an
Amended Answer[18] raising a new matter of the April 14, 2000 Deed of
Confirmation and June 7, 2000 Supplement to Deed of Confirmation. On June 1,
2000, the Hearing Panel admitted PNCCs Amended Answer through an Order.[19]

On June 2, 2000, the Hearing Panel scheduled a new preliminary conference on June
13, 2000. At the hearing on June 5, 2000, due to conflicts with the schedules of some
of the parties counsels, the preliminary conference was moved to June 29, 2000.
However, on June 6, 2000, PNCC filed an Urgent Motion[20] praying that the
preliminary conference be reset back to the original schedule of June 13, 2000 so as
to follow the proviso in the SEC Rules of Procedure. PNCCs Urgent Motion was
granted through a June 8, 2000 Order,[21] and the preliminary conference was reset
back to June 13, 2000.

In the preliminary conference on June 13, 2000, petitioner adopted his previous
preliminary conference brief dated November 15, 1999. PNCC and APT filed their
preliminary conference briefs dated June 8, 2000 and June 13, 2000, respectively;
while DBP, GSIS, PNB, and PEFLGC adopted their respective preliminary
conference briefs previously filed. On the same date, petitioner was barred from
presenting additional evidence due to his failure to file a reply to PNCCs Amended
Answer and to file an amended preliminary conference brief together with the
affidavits of witnesses as required by the new SEC Rules.

On June 13 and 14, 2000, PNCC adopted the testimonial and documentary evidence
it presented during the hearing on the preliminary injunction as part of its evidencein-chief and adduced further additional witnesses and documentary evidence to

60

substantiate the new matter presented in its amended answer. The GFIs adopted
PNCCs evidence which was orally offered by PNCC over petitioners objection.

The Hearing Panel scheduled the reception of petitioners rebuttal evidence on June
19 and 20, 2000. However, on June 19, 2000, instead of presenting rebuttal evidence,
petitioner filed a Motion to Admit Second Amended Complaint, but an opposition
was filed to it by respondents for being dilatory.

On June 21, 2000, PNCC filed a Motion to Terminate Plaintiffs Rebuttal Evidence
and to Submit the Case for Decision on the Merits[22] which was opposed[23] by
petitioner. On July 3, 2000, the Hearing Panel issued an Omnibus Order[24] denying
petitioners motion to admit second amended complaint, granted PNCCs motion to
terminate petitioners rebuttal evidence, and submitted the case for resolution on the
merits. Thus, the instant case was submitted for decision on the merits based on the
pleadings, evidence, and other submissions of the parties.

The Ruling of the SEC SICD

On July 10, 2000, the Hearing Panel rendered its Decision dismissing petitioners
complaint for lack of merit and revoking the writ of preliminary injunction issued on
September 8, 1998. The fallo reads:

WHEREFORE, plaintiffs Complaint is hereby dismissed for lack of merit and the
Orders dated April 14, 1998 and September 8, 1998 are hereby revoked and set aside.
[25]

corroborated by Caval Securities Registry, Inc., PNCCs stock transfer agent, which
prepared PNCCs September 15, 1987 Schedule of Subscription.[26] Moreover, prior
to the filing of the instant case, the GFIs have been nominating their representatives
to PNCCs Board of Directors which is an attribute of ownership of shares of stock in
PNCC.

The Hearing Panel also took cognizance of the April 14, 2000 Deed of
Confirmation[27] and the June 7, 2000 Supplement to Deed of Confirmation[28]
executed by the GFIs, which erased all doubts on the implementation of LOI 1295 by
the conversion of the GFIs loan receivables from PNCC into the latters equity. Thus,
with the clear consideration of loan receivables for the shares of stock, the shares
issued to the GFIs cannot in any way be considered watered stocks. It cited Section
62 of the Corporation Code which expressly allows the issuance of shares of stock in
consideration for previously incurred indebtedness.

Moreover, the Notes to the Financial Statements[29] on the Report on Examinations


of Financial Statements[30] for comparative periods of December 31, 1982 and
December 31, 1983 prepared by independent auditors from Carlos J. Valdes & Co.,
Certified Public Accountants, clearly show the reduction of PNCC loan obligations.
Specifically, Note No. 11[31] stated that as of December 31, 1983, total obligations
already converted into equity amounted to PhP 1,382,202 or roughly 1.4 billion
representing the increase of authorized capital stock of PNCC.

On the other hand, the Hearing Panel found the pieces of evidence presented by
petitioner, most of which were the same ones presented by respondents, to be
inconsequential and insufficient to overthrow the weight of the evidence presented
by respondents that a conversion of PNCCs debt into equity was implemented. It
ratiocinated that the badges of fraud pointed out by petitioner are inconsequential as
no clear and convincing evidence was presented by petitioner, and that allegations
cannot take the place of proof. Likewise, the lack of a subscription agreement was
not fatal to the shares of stock issued to the GFIs as LOI 1295 in no uncertain terms
mandated such conversion of debt-to-equity which was duly approved by the
stockholders of PNCC in increasing its authorized capital stock precisely pursuant to
LOI 1295.

The Hearing Panel found that the evidence presented by PNCC and GFIs constituted
substantial proof of the implementation of LOI 1295. It reasoned that not only did
PNCC issue the shares of stock as shown in its stock ledger cards but such fact was

61

Anent the August 15, 1995 Memorandum of Agreement[32] executed by the


Department of Finance (DOF), APT, and PNCC, whereby PNCC assigned to APT
and the DOF Lot 3, Block 1, RL-04-000001 covered by TCT No. 34996, such did
not by far prove that PNCC paid its obligations to PNB and DBP, which transferred
their assets to the National Government, and the shares PNCC issued to these GFIs
were without consideration. Evidence shows that PNCC owed PNB PhP 1.79 billion
and DBP PhP 629 million, but what were converted into equity were only PhP 255
million for PNB and PhP 269.874 million for DBP, thus leaving outstanding balances
of PhP 1.535 billion for PNB and PhP 359 million for DBP. These outstanding and
unconverted loan credits were the subject of the assignment of receivables to APT.

In fine, the Hearing Panel cited the resolution of the 1992 case of Childrens Garden
of the Philippines v. APT,[33] where this Court ruled that the implementation of LOI
1295 was already a fait accompli; thus, there was clear recognition by the Court of
the factual conversion of GFIs loan credits to PNCC shares.

As regards NDC, the Hearing Panel dismissed the complaint against it for failure of
petitioner to state a cause of action as the issuance of 14,699,000 shares of common
stock of PNCC in favor of NDC in 1987 was pursuant to LOI 1136 and not LOI
1295, and the shares were issued for valuable consideration.

Among other things, petitioner assails the speed, taking only seven (7) days from the
date the case was submitted for decision, with which the Hearing Panel came out
with a grammar-perfect decision. It concluded that it was PNCC which prepared the
decision, pointing out numerous instances where the text of the assailed decision is
identical to or very similar to some portions of PNCCs petitions in another case.

Subsequently, the SEC en banc issued its August 8, 2000 Order denying petitioners
appeal and affirming in toto the July 10, 2000 Decision of the SEC SICD. The
decretal portion states:

FINDING NO REVERSIBLE ERROR, therefore, the herein Appeal should be, as it


is hereby DISMISSED.

The 10th July 2000 Decision in SICD Case No. 05-96-5357 is herewith AFFIRMED
in toto.

Costs adjudged against the appellant.[37]


The Ruling of the SEC En Banc

With the adverse ruling against him, petitioner timely filed his Notice of Appeal[34]
and Petition for Review on Certiorari and/or Memorandum on Appeal.[35] Aside
from assailing the July 10, 2000 SEC SICD Decision, petitioner also assailed the
July 3, 2000 Omnibus Order terminating the presentation of his rebuttal evidence and
submitting the case for decision on the merits, and the June 27, 2000 Preliminary
Conference Order[36] barring him from presenting additional witnesses as part of his
evidence-in-chief. Petitioner raised before the SEC en banc the allegations that the
Hearing Panel conspired with PNCC in railroading the trial and issuing the
questioned Orders and Decision.

The SEC en banc found that petitioner banked on sweeping speculations and
assumptions except the significant and substantial proof to corroborate the serious
charges leveled against the Hearing Panel. It reasoned that petitioner had not shown
malice, bad faith, or corrupt purpose on the part of the Hearing Panel to warrant the
reversal of the assailed Decision.
Moreover, it pointed out that petitioner failed to procedurally appreciate the import
of the mandatory requirements set forth in the SEC Rules of Procedure in effect at
that time, as the Hearing Panel merely adhered to Rule V, Sec. 4 of said Rules of
Procedure, which provides that hearings shall be commenced not later than 15 days
from the date of the termination of the preliminary conference and completed within
20 days from the date of the first hearing. Besides, according to the SEC en banc, the
proceedings in the SEC SICD were summary in nature; thus, speed seemed to ensue
when the case was heard and decided.

62

On the issue of violation or infringement of petitioners right to due process, the SEC
en banc found no basis for it, as the summary nature of the proceedings below has to
be followed by the Hearing Panel. Moreover, the SEC en banc found a dearth of
evidence to lend support to petitioners contention.

Finally, the SEC en banc likewise relied on the GFIs ratification of their subscription
to the shares issued by PNCC pursuant to LOI 1295 to erase any doubt about its
implementation and the extinguishment of PNCCs unpaid loan credits to the extent
of such issuance of shares of stock.

The Ruling of the Court of Appeals

Aggrieved, on August 24, 2000, petitioner raised through a Petition for Review[38]
before the CA the August 8, 2000 SEC en banc Order dismissing his appeal,
docketed as CA-G.R. SP No. 60366. Petitioner likewise assailed in its CA petition
the SEC SICD June 27, 2000 Preliminary Conference Order, July 3, 2000 Omnibus
Order, and July 10, 2000 Decision.

pleadings filed by PNCC as the Hearing Panel is allowed by the Rules to adopt any
part of the position papers or draft decisions the parties had filed in their resolution
or decision. As regards the constitution of the three-person Hearing Panel, the CA
held that by not filing a motion for reconsideration of the order granting the
constitution of the panel, petitioner could not now evoke suspicion on it.

The CA further upheld the summary proceedings before the Hearing Panel for being
in accord with the SECs New Rules of Procedure, and, thus, such could not be
prejudicial to petitioner. As regards the admission of PNCCs amended answer, the
CA held that such could not be considered as a conspiratorial act as petitioner did not
oppose such admission.

On the issue of the preliminary conference brief being merely permissive, the CA
noted that during the June 5, 2000 hearing, it was specifically ordered by the Hearing
Panel for the parties to file their respective briefs with attached affidavits of their
witnesses before the actual preliminary conference. Thus, petitioner could have
prepared and filed his brief before the June 13, 2000 preliminary conference.
However, petitioner chose to remain silent and simply adopted his previous
preliminary conference brief. Petitioner never made known to the Hearing Panel his
assertion that the filing of his brief was merely permissive. Besides, it was the
Hearing Panel who had the say on whether preliminary conference briefs should be
filed or not.

Thereafter, through its assailed November 29, 2000 Decision,[39] the CA denied and
dismissed the petition for review for lack of merit; thus, it upheld the SEC en banc
order affirming the SEC SICD decision which dismissed petitioners complaint. The
CA found that neither the SEC en banc nor the SEC Hearing Panel committed grave
abuse of discretion amounting to lack or excess of jurisdiction in rendering their
respective orders and decision.

On the issue of the limitation on the presentation of petitioners rebuttal evidence, the
CA likewise found it untenable as he could have filed a reply to traverse the new
one-paragraph allegation in the amended answer or, in the alternative, referred to
supporting documents and affidavits negating such new matter in his preliminary
conference brief. Petitioner did neither. The CA then opined that [petitioner] could
not now cry foul over his lapses as due process is not violated where a person is
given the opportunity to be heard but chooses not to give his side.

The appellate court failed to see any rhyme or reason in finding fault in or to disturb
the findings of the SEC en banc on its ruling regarding the alleged suspicious and
compelling badges of fraud pointing to a conspiracy between the Hearing Panel and
PNCC. It quoted with approbation the quasi-judicial agencys disquisition on this
matter. Moreover, it reasoned that there was nothing startling or irregular in the fact
that the text of the same decision was similar in language with the text of the

Likewise, the CA reasoned that petitioner could not assail the findings of facts and
conclusions of law by the Hearing Panel as such are based on the aggregate evidence
presented by the parties. It pointed out that the evidence presented during the
hearings for the issuance of a preliminary injunction was preliminary or only a
sample to support the issuance of the injunctive writ. Verily, the CA ruled that the

63

findings of the Hearing Officer in the issuance of the TRO and injunctive writ could
not pre-empt the conclusive findings of the tribunal after due trial and presentation of
all the evidence adduced by the parties. Thus, the CA was convinced that petitioner
was indeed accorded due process and given ample opportunity to ventilate his case.

The Issues

Petitioner raises the following grounds for our consideration:


In fine, the appellate court likewise held the applicability of Childrens Garden of the
Philippines[40] and the fact that the assailed issuance of shares of stock to the GFIs
was for valuable consideration, that is, the existing loan credit obligations. The CA
then ruled that petitioner was guilty of forum shopping for having raised
substantially the same issues before the SEC and RTC.

Hence, the instant petition is now before the Court.

THE COURT OF APPEALS HAS COMMITTED REVERSIBLE ERROR IN NOT


FINDING THAT THE SEC EN BANC GROSSLY ERRED IN NOT HOLDING
THAT THE PROCEEDINGS BELOW WERE PROCEDURALLY FLAWED
BECAUSE THE HEARING PANEL HAD RAILROADED THE TRIAL IN FAVOR
OF RESPONDENT PNCC.

Parenthetically, on June 19, 2000, petitioner filed a Notice of Dismissal and Motion
to Dismiss Third Amended Complaint[41] in Civil Case No. 95-1356 before the
Makati City RTC, Branch 142. Petitioner reasoned that based on the position taken
and the admissions made by PNCC and the GFIs in other cases, with respect to the
validity of LOI 1295, he was no longer certain if it was proper for him to maintain
suit for the enforcement and implementation of said law. The trial court promptly
dismissed Civil Case No. 95-1356 through its June 23, 2000 Order.[42]

Similarly, sometime in September 2000, PNCC filed a motion to dismiss CA-G.R.


SP No. 58117 before the CA Ninth Division, as said case had been rendered moot
and academic by the July 10, 2000 Decision of the SEC SICD Hearing Panel, which
lifted and revoked the preliminary injunction granted through the assailed SEC SICD
September 8, 1998 Order. Consequently, CA-G.R. SP No. 58117 was dismissed
through the September 19, 2000 CA Resolution.[43]

A. The Court of Appeals has committed reversible error in not finding that the SEC
en banc grossly erred in not holding that the Hearing Panel, in issuing the Omnibus
Order dated 3 July 2000 terminating the presentation of petitioners rebuttal evidence
and submitting the case for decision on the merits, committed reversible error and
grave abuse of discretion.

i. Respondent PNCCs Motion to Terminate Plaintiffs Rebuttal Evidence was a mere


scrap of paper and should not have been given due course by the Hearing Panel.
ii. The premature termination of petitioners rebuttal evidence was a denial of his
right to due process.
iii. The cancellation of the 19 and 20 June 2000 trial sessions where petitioner was
scheduled to present rebuttal evidence, [sic] was due to the lack of quorum in the
Hearing Panel, which was not the fault of petitioner and for which he should not
have been penalized.
iv. The Hearing Panel grossly erred in finding that petitioner could not have
presented new or significant evidence on rebuttal, and that petitioner had already
presented sufficient rebuttal evidence, considering that said findings contradict each
other and are presumptuous and bereft of any factual basis.

64

B. The Court of Appeals has committed reversible error in not finding that the SEC
en banc grossly erred in not holding that the Hearing Panel, in issuing the
Preliminary Conference Order dated 27 June 2000 (released on 3 July 2000) barring
petitioner from presenting additional witnesses as part of his evidence-in-chief,
committed reversible error and grave abuse of discretion.

Petitioner challenges the CA decision on the ground that he was denied due process.
He also claims that the CA erred in ruling that the factual findings of the SEC SICD
Hearing Panel, as affirmed by the SEC en banc, were conclusive on it. Finally, he
faults the CA for its failure to appreciate circumstances that would not only show
denial of due process but of fraud and conspiracy in railroading the instant case
against him.

II

The Courts Ruling

THE COURT OF APPEALS HAS COMMITTED REVERSIBLE ERROR IN


UPHOLDING THE SEC EN BANC ORDER DATED 8 AUGUST 2000
AFFIRMING THE HEARING PANELS DECISION DATED 10 JULY 2000.

The petition is bereft of merit.

Procedural Due Process


A. Badges of fraud abound in the pages of the Decision dated 10 July 2000,
indubitably showing the Hearing Panels utter disregard of due process.
B. The SEC en bancs and the Hearing Panels findings of fact are inexplicably the
opposite of the findings of fact previously made by Hearing Officer Gallegos and the
SEC en banc, even though both sets of findings of fact are based on the very same
evidence.
C. The Court of Appeals has committed reversible error in finding that petitioner is
guilty of forum shopping.
D. The Court of Appeals has committed reversible error in not ruling that the SEC
en banc grossly erred in not holding that the Hearing Panel committed reversible
error and grave abuse of discretion in considering evidence not formally offered and
admitted.
E. The Court of Appeals has committed reversible error in not ruling that the SEC
en banc grossly erred in not holding that the Hearing Panel committed reversible
error and grave abuse of discretion in making findings of fact not supported by the
evidence on record and in disregarding overwhelming evidence.[44]

Procedural due process, in gist, is the necessity for notice and an opportunity to be
heard before judgment is rendered. Its essence is encapsulated in the immortal cry of
Themistocles to Alcibiades: Strikebut hear me first.[45] Thus, as long as a party is
given the opportunity to defend his/her interests in due course, the party would have
no reason to complain, for it is this opportunity to be heard that makes up the essence
of due process.[46]

In administrative and quasi-judicial proceedings where the magistrates or tribunals


hearing the case are not bound by the niceties and finer points of judicial due
process, the cardinal primary requirements of procedural due process, as gleaned by
Justice Laurel from an array of American decisions, were enumerated in Tibay v.
Court of Industrial Relations, as follows:

(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. x x x

65

whether petitioner was denied due process as alleged, we will scrutinize the
proceedings below.
(2) Not only must the party be given an opportunity to present his case and to adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented. x x x

(3) While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support its decision. x x x

(4) Not only must there be some evidence to support a finding or conclusion (City of
Manila vs. Agustin, G. R. No. 45844, promulgated November 29, 1937, XXXVI
O.G. 1335), but the evidence must be substantial. x x x

(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. x x x

(6) The [c]ourt x x x or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate in arriving at a decision. x x x

(7) [The court] should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and
the reasons for the decisions rendered. The performance of this duty is inseparable
from the authority conferred upon it.[47] (Emphasis supplied.)

Proceedings before the Hearing Panel

For clarity, we reiterate the significant and relevant events that transpired which are
mainly being assailed by petitioner.

It is undisputed that the instant case was pending for over four (4) years before the
SEC SICD, that is, from May 31, 1996 until the rendition of the SEC SICD Decision
on July 10, 2000. In the intervening time, petitioner was granted a 20-day TRO on
April 13, 1998 and a writ of preliminary injunction was likewise issued in his favor
on September 8, 1998.

Meanwhile, on May 20, 1999, petitioner filed a motion to admit amended complaint
which was granted by the Hearing Officer. Consequently, PNCC and the GFIs filed
their respective answers to the amended complaint. On May 8, 2000, PNCC in turn
filed a motion for leave to admit amended answer, which was not opposed by
petitioner, and duly granted by the Hearing Panel on June 1, 2000.

Likewise, PNCCs March 21, 2000 motion to designate hearing panel, while opposed
by petitioner, was granted on April 6, 2000 and the Hearing Panel was constituted;
however, petitioner did not assail this grant as he failed to file a Motion for
Reconsideration of the April 6, 2000 Order.

Consequently, a new preliminary conference was scheduled for June 13, 2000 but
was moved to June 29, 2000 due to conflict of schedules of the counsels, but was
reset to the original date of June 13, 2000 upon PNCCs urgent motion to conform
with the then SEC New Rules of Procedure.
Prescinding from the above requirements, it is thus clear that the proceedings before
the SEC SICD Hearing Panel are bound by these requirements. To determine

66

During the preliminary conference of June 13, 2000, petitioner was barred from
presenting additional evidence. The preliminary conference order was subsequently
issued on June 27, 2000. Petitioners presentation of rebuttal witnesses was
terminated through the July 3, 2000 Omnibus Order which also denied admission of
petitioners second amended complaint and submitted the case for decision on the
merits.

SEC. 4. Nature of Proceedings.Subject to the requirements of due process,


proceedings before the Commission shall be summary in nature not necessarily
adhering to or following the technical rules of evidence obtaining in the regular
courts. Provided, however, that the Rules of Court may apply in a suppletory manner
whenever practicable.

xxxx
On July 10, 2000, the Hearing Panel rendered its Decision dismissing petitioners
case for lack of merit.
RULE V
Were the foregoing proceedings procedurally flawed as alleged by petitioner? Were
the proceedings of the instant case before the SEC SICD Hearing Panel railroaded?
Was there a conspiracy between the Hearing Panel and respondent PNCC and the
GFIs? Was petitioners right to due process violated? A review of the then SEC New
Rules of Procedure will shed light on the issue of due process.

SEC Rules prescribe a summary procedure

A cursory reading of the then prevailing SEC New Rules of Procedure shows that the
proceedings before the Hearing Officers or Hearing Panel are summary in nature and
to be conducted expeditiously in the interest of just, speedy and inexpensive
determination of disputes and claims.[48]

PROCEEDINGS BEFORE THE


DESIGNATED HEARING OFFICER

SECTION 1. Preliminary Conference.In any action, the Hearing Officer shall set the
case for preliminary conference within ten (10) days after the last pleading is filed,
and the parties and their attorneys shall be directed to appear before the Hearing
Officer on the dates set on the notice, to consider based on the affidavits, documents
and other evidence submitted by the parties:

a. The possibility of an amicable settlement;


b. The simplification of the issues;

Notably, said rules provided:

c. Schedule hearing which must be undertaken continuously as scheduled until


completed and terminated; and
d.

RULE I

Such other matters as may aid in the just and speedy disposition of the case.

The Hearing Officer shall terminate the preliminary conference ten (10) days after its
commencement, whether or not the parties have agreed to settle their differences.

67

xxxx

SEC. 4. Preliminary Conference Order.After the preliminary conference, the Hearing


Officer shall issue an Order reciting the action taken at the conference; the
stipulations made by the parties as to any of the matters considered; a recital of such
other evidence as the parties may have agreed upon; the witnesses, if any, to be
presented by all the parties; and the scheduled dates of hearing for presentation of all
such witnesses. Provided, however, that the hearings shall be commenced not later
than fifteen (15) days from the date of the termination of the preliminary conference
and completed within twenty (20) days from the date of the first hearing. Provided,
further, that the failure of a party to present a witness or witnesses on a scheduled
hearing date shall be deemed a waiver of such hearing date. Provided, finally, that a
party may present such witness or witnesses within the remaining hearing dates.

SEC. 5. Submission of Position Papers and Draft Decisions. Within fifteen (15) days
after the submission of case for resolution, the parties shall submit their position
papers setting forth the law and the facts relied upon by them. They shall also be
required to submit a draft of the decision or resolution they seek, stating clearly and
distinctly the facts and the law upon which it is based. The Hearing Officer may
adopt, in whole or in part, either of the parties draft decision or resolution, or reject
both.

RULE VI

From the foregoing provisions, it becomes clear that petitioner was indeed accorded
due process. The requirements spelled out in Ang Tibay have been complied with.
Verily, a close examination of the proceedings in the SEC SICD in the backdrop of
the above rules shows that petitioners right to due process was not violated. He was
indeed accorded ample opportunity to ventilate his position.

First, there is no cause shown for arbitrariness or ill-motive in the constitution of the
Hearing Panel. While petitioner opposed PNCCs motion for its constitution, the
April 6, 2000 Order granting it was not questioned nor assailed by petitioner in a
motion for reconsideration. Verily, the rules allow the constitution of a hearing panel,
as Sec. 2 of Rule I, SEC New Rules of Procedure on Definitions provides that a
Hearing Officer is any Commissioner, officer, body or panel duly designated or
created by the Commission to hear and decide a particular case (emphasis supplied).

Thus, by failing to question the Hearing Panels constitution, and by participating in


the proceedings before the panel, petitioner had indeed acquiesced to and waived any
question on its constitution.

Second, the resetting of the preliminary conference back to the original schedule of
June 13, 2000 is well within the authority of the Hearing Panel and pursuant to Rule
V, Sec. 1 of the SEC Rules which provides that the preliminary conference be set
within 10 days after the last pleading was filed.

DECISION

SECTION 1. Decision.The Hearing Officer shall render a decision within twenty


(20) days from submission of the case for resolution. (Emphasis supplied.)

No denial of due process

Indeed, the last pleading filed was the amended answer to which petitioner opted not
to file a reply despite the opportunity to do so. More so, when the amended answer
only raised a new one-paragraph matter on the deed of confirmation and its
supplement executed by the GFIs. In this setting, we find nothing out of line.

Third, petitioner contends that the SEC Hearing Panel required the submission of
preliminary conference briefs for the June 13, 2000 preliminary conference when,
under the SECs Rules of Procedure, the filing of such briefs was not mandatory. In
this regard, we do not fault but rather commend the SEC Hearing Panel for taking

68

the necessary steps to ensure that the proceedings are conducted in an orderly
fashion. The SEC Hearing Panel, in directing the submission of briefs, was simply
mindful of the importance of pre-trial as means of facilitating the disposal of cases
by simplifying or limiting the issues and avoiding unnecessary proof of facts at the
trial, or exploring the possibility of an amicable settlement or of submission to
arbitration, and generally to do whatever may reasonably be necessary to facilitate
and shorten the formal trial.[49] Recently, we issued Resolution No. 03-1-09-SC on
the Guidelines on Pre-trial and on the Use of the Different Modes of Discovery and
Deposition, stressing that pre-trial, if used properly, is a very effective case
management tool to obliterate case delay and expedite case processing and
adjudication.

In any event, no prejudice could have been suffered by petitioner arising from his
inability to file brief for the June 13, 2000 preliminary conference as he had already
finished presentation of his evidence. The conference was conducted only with
respect to additional matters raised in PNCCs Amended Answer which did not
however alter its theory. Moreover, petitioner cannot now say that he failed to file his
preliminary conference brief due to short notice as he only received the order
granting the resetting on June 9, 2000, a Friday. It is undisputed that the parties were
granted enough time through the June 2, 2000 Order setting the original schedule on
June 13, 2000 and for the parties to file their respective briefs. Indeed, petitioner had
sufficient time to prepare and file his brief.

Fourth, on the issue of not being accorded the opportunity to file an opposition to
PNCCs urgent motion to reset the preliminary conference back to June 13, 2000,
suffice it to say that the urgent motion was non-litigious, then it may be granted exparte as the matter raised pertains only to the schedule of the preliminary conference
in accordance with the rules. Otherwise, the opposition will further delay the
preliminary conference proceeding which the rules precisely obviate.

Fifth, the ruling of the Hearing Panel during the June 13, 2000 preliminary
conference barring petitioner from presenting additional witnesses is within its
authority and competence. Indeed, the reasons given for such curtailment were that
petitioner failed to file his reply to address the sole new matter raised in the amended
answer, to file an amended preliminary conference brief required by the panel, and to
submit the affidavits of his witnesses required to be appended to his brief.

While the SEC New Rules of Procedure allows the testimony of adverse witnesses
sans their affidavits, the records do not show that petitioner informed the Hearing
Panel of the names of his additional witnesses, the description of their testimony, and
the documentary evidence they would identify except the general description that
they are adverse witnesses. Indeed, petitioner did not dispute these except to cry foul
that the curtailment of presenting additional witnesses and evidence violated his right
to due process. Given the fact that petitioner was hedging and was, so to say, fishing
for evidence, it is but proper that he was barred from further presenting additional
witnesses in order not to needlessly prolong the proceedings.

Sixth, in the same vein, the ruling of the Hearing Panel to terminate petitioners
presentation of rebuttal evidence in the July 3, 2000 Omnibus Order is likewise welltaken. Indeed, the Hearing Panel granted petitioners oral motion for presentation of
rebuttal evidence but limited it to the testimony of petitioner himself and Mr. Froilan
V. Bacugan. However, on the scheduled date for their testimony, petitioner presented
other witnesses and again went on a fishing expedition. Given that no persuasive
additional evidence was forthcoming, the termination of rebuttal evidence is proper.
Besides, as correctly ruled by the Hearing Panel, additional evidence of the same
class may be dispensed with if such would not add anything substantial or material to
what has already been presented.

Petitioner however argues that by the termination of his rebuttal evidence, he was
deprived of the right to prove that (1) the signatories to the Deed of Confirmation
and Supplement were not authorized by their respective Boards of Directors; (2) the
GFIs have not actually cancelled PNCCs loan in their books; and (3) the GFIs have
likewise not cancelled the interest, penalties, adjustments for peso devaluation, and
other surcharges that accrued PNCCs loan from 1982 to 2000.[50]

The records reveal that petitioner could very well have introduced evidence on the
alleged non-cancellation of the loans and other charges in the books of the GFIs
during the presentation of his evidence-in-chief. Having failed to do so, petitioner
can no longer belatedly interject such evidence into the record through the right to
introduce rebuttal evidence. Such evidence, if any, can be considered as forgotten
evidence which is evidence already existing at the time of the trial but was not
presented at that stage of the proceedings.

69

Anent the authority of the signatories to the Deed of Confirmation and Supplement,
petitioner could also have confronted PNCCs witnesses, especially Atty. Raul
Villanueva who was presented to prove this fact, when they testified before the SEC
Hearing Panel. Petitioner again failed to do this. Lastly, the SEC Hearing Panel had
determined that there was sufficient evidence on record to render an informed
judgment on the issues of fact before it. Thus, there is nothing irregular in the
discontinuation of the presentation of rebuttal evidence.

Seventh, the disallowance of petitioners second amended complaint is also proper as


the proceedings were already at the late stage, and it was not expeditious to go back
again to the stage for respondents to file their answers and set anew a fourth
preliminary conference. Besides, the amendment which petitioner wanted to be
incorporated refers to the sole new issue in PNCCs amended answer, which he could
have addressed with a reply to the amended answer or through an amended
preliminary conference brief. Petitioner did neither. He had thus waived his right to
address the sole new matter raised in the amended answer; and if otherwise, the
summary and expeditious nature of the proceedings below would be duly
compromised. Indeed, when a party is given ample opportunity to present his case,
his failure to do so is not a denial of due process.

In no uncertain terms, the CA explicated that the assailed acts of the SEC Hearing
Panel considered as badges of fraud by petitioner find legal mooring either in the
SECs Rules of Procedure or are within its quasi-judicial powers. Petitioners
participation in the proceedings and actions taken by the panel or his failure to
vigorously pursue his objections to them can only be construed to be an acquiescence
to such actions or waiver of his rights. Petitioner cannot now be heard to complain.

No evidence of fraud and conspiracy

We now move on to the issues of fraud and conspiracy which petitioner foisted to
show that the instant case was railroaded and fast-tracked against him.

Petitioner would like us to believe that the CA and the SEC en banc erred in not
considering the badges of fraud he presented to show that the case was railroaded.
First, petitioner points out that the SEC SICD only took seven (7) days to come out
with a grammar-perfect decision. Second, petitioner strongly asserts that the
proceedings were fast-tracked due to the governments action to privatize some of the
assets of the GFIs which include the subject shares of stock. Third, petitioner
presents numerous instances in the July 10, 2000 SEC SICD Decision which, he
proffers, indubitably showed that it was not the Hearing Panel which penned the
decision but respondent PNCC.

We are not persuaded.

Petitioner has not shown any proof or substantial evidence of fraud and conspiracy.
Indeed, he who alleges fraud must prove it for basic is the rule that actori incumbit
onus probandi.[51] Differently stated, upon the plaintiff in a civil case, the burden of
proof never parts.[52] In the case at bar, the petitioner must therefore establish his
allegation of fraud by a preponderance of evidence.[53] Once again, petitioner
utterly failed to do this. In addition, it is an aged-old rule in civil cases that he who
alleges a fact has the burden of proving it and a mere allegation is not evidence.[54]
Fraud is never presumed, but must be established by clear and convincing evidence.
[55]

Indeed, a cursory reading of the comparative statements presented by petitioner


proves nothing beyond the fact that they are similarly worded. Even granting
arguendo that these statements in the decision were taken from the pleadings of
PNCC, no ill-motive or adverse conclusion may be derived from said decision as the
SEC New Rules of Procedure, specifically Sec. 5 of Rule V, allows the Hearing
Officer to adopt in whole or in part a draft decision, position paper, or other
pleadings for that matter filed by the parties. While it is true that the parties did not
file any draft decision or position paper, yet the Hearing Panel is not barred to adopt
a part or portion of any pleadings filed by the parties. If the Hearing Panel is allowed
to adopt a draft decision or position paper, more so is it allowed to adopt any portion
from the pleadings filed by the parties.

Moreover, Sec. 1 of Rule VI particularly provides that the decision must be rendered
within 20 days from the submission of the case for resolution. Thus, by complying

70

with the directive provided by said Rules, the Hearing Panel cannot be faulted in
rendering the July 10, 2000 Decision after only seven (7) days from the submission
of the instant case for resolution on the merits. In fact, the Hearing Panel must be
commended for doing its job expeditiously.

Anent the issue of the governments privatization as the cause of the alleged rapid
processing of the case, such is utterly specious and bereft of any factual basis.
Petitioner wants us to believe that the government, through the GFIs, exerted
pressure on the Hearing Panel and the SEC en banc for a favorable judgment. This is
utterly an unfounded innuendo as petitioner has not presented even an iota of proof
to substantiate his accusation. Allegations are easily leveled but proving them is
another matter. In the absence of proof, petitioner only has bare allegations and
nothing more.

Findings of facts of administrative bodies accorded finality when supported by


substantial evidence

On the merits of the case, suffice it to say that the findings of facts and conclusions
of law of the SEC are controlling on the reviewing authority. Indeed, the rule is that
the findings of fact of administrative bodies, if based on substantial evidence, are
controlling on the reviewing authority.[56]

We disagree with petitioner that there was a change in the findings by the Hearing
Panel vis--vis the findings of the Hearing Officer in the grant of the preliminary
injunction upon the same set of evidence. It must be borne in mind that the pieces of
evidence presented during the hearings for the issuance of the injunctive writ were
only preliminary ones, that is, a sampling of the evidence intended to give the
tribunal an idea of the justification for the issuance of the injunctive writ pending the
decision of the case on the merits. As often repeated, the issuance of an injunctive
writ cannot preempt the resolution of the case on the merits. Indeed, the records
show that PNCC and respondent GFIs presented additional evidence aside from what
were presented during the hearings for the issuance of the injunctive writ. Thus,
petitioner has no basis to say that the decision was based on the same evidence

presented during the hearings for the issuance of the preliminary injunction, which
were held in 1998.
It has been held that it is not for the appellate court to substitute its own judgment for
that of the administrative agency on the sufficiency of the evidence and the
credibility of the witnesses.[57] The Hearing Panel had the optimum opportunity to
review the pieces of evidence presented before it and to observe the demeanor of the
witnesses. Administrative decisions on matters within their jurisdiction are entitled to
respect and can only be set aside on proof of grave abuse of discretion, fraud, or
error of law,[58] which have not been shown by petitioner in this case.

It is well-settled that factual findings of administrative agencies are generally held to


be binding and final so long as they are supported by substantial evidence in the
record of the case. It is not the function of this Court to analyze or weigh all over
again the evidence and credibility of witnesses presented before the lower court,
tribunal, or office, as we are not a trier of facts. Our jurisdiction is limited to
reviewing and revising errors of law imputed to the lower court, the latters findings
of fact being conclusive and not reviewable by this Court.[59]

The CA found neither reversible error nor grave abuse of discretion on the part of the
SEC en banc in affirming the decision of the SEC SICD Hearing Panel, which was
supported by substantial evidence. Thus, we find no reason to rule otherwise.

LOI 1295 has been implemented

Even without considering our factual determination in Childrens Garden of the


Philippines v. APT,[60] still we arrive at the same conclusion that LOI 1295 was
indeed implemented.
First, it is undisputed that shares of stock were issued to the GFIs converting part of
their outstanding loan credit to equity with PNCC. The certificates of stock issued
attest to this fact. Moreover, the administrative body below had duly debunked any
irregularity in the face of these certificates of stock. Second, the records and accounts
of PNCC duly reflected such debt-to-equity conversion as attested to by the
independent auditors from Carlos J. Valdes & Co., Certified Public Accountants, in
the comparative Financial Statements covering the years 1982 and 1983. Third, the

71

due issuance of the shares of stock in the names of the GFIs was corroborated by
PNCCs stock transfer agent, Caval Securities Registry, Inc. Fourth, the Deed of
Confirmation and its Supplement erased any doubt as to the implementation of LOI
1295. Thus, based on these reasons, there can be no doubt as to the implementation
of LOI 1295. Corollarily, the shares of stock subject of the instant case issued to the
GFIs were for value and thus cannot be considered as void or watered stocks.

which the GFIs are made to answer substantially the same issues raised in the instant
case. It is indeed revealing that petitioner withdrew his third amended complaint
before the trial court on June 19, 2000 when the instant case was at its last stages
before the Hearing Panel. Moreover, while petitioner informed the trial court of the
pendency of the instant case, yet petitioner fatally failed to state in his verification
and certification[61] the status of the instant case as required by Sec. 5, 1(b)[62] of
Rule 7, 1997 Rules of Civil Procedure. Clearly, petitioner is guilty of forum
shopping.

Petitioner guilty of forum shopping


SEC has jurisdiction to compel PNCC to hold annual stockholders meetings and
election of board of directors
On the issue of forum shopping, we agree with both the SEC en banc and the CA that
petitioner is guilty of forum shopping. A close perusal of both the Amended
Complaint in SICD SEC Case No. 05-96-5357 and the Third Amended Complaint in
Civil Case No. 95-1356 shows that both cases are derived from the same factual
issues involving substantially the same parties. Although the actions seem to be
different, yet it can be seen that there is a splitting of a cause of action.

While, on the one hand, the instant case was for the determination whether the GFIs
are indeed stockholders of PNCC and their respective number of shares, and on the
other, Civil Case No. 95-1356 was for the enforcement and compliance of LOI 1295,
yet both actions involved substantially the same parties, stemming from the same
factual antecedent of the debt-to-equity conversion mandated by LOI 1295 and
involved the same cause of action that petitioner anchors both complaints, that is,
that LOI 1295 was not fully implemented.

In this connection, we reject petitioners pretense that no identity exists between Civil
Case No. 95-1356 and the instant case, both of which substantially involve the same
parties, having the same cause of action and which stem from the same factual
antecedents. The fact remains that in Civil Case No. 95-1356, petitioner prayed for
the enforcement and compliance of LOI 1295, the same relief he could have asked
for in the instant case before the SEC proceedings below. The fact that he made
PNCC as complainant in the civil case does not alter the essence of said case in
[G.R. No. 134625. August 31, 1999]
UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, CHANCELLOR
ROGER POSADAS, DR. EMERLINDA ROMAN, DEAN CONSUELO PAZ, DR.

Finally, it has been settled in Philippine National Construction Corporation v.


Pabion[63] that PNCC is an acquired asset corporation and not a government-owned
and/or controlled corporation (GOCC). In said case, we held that PNCC did not lose
its status as a private corporation upon acquisition by the government through GFIs
of the majority of its shares of stock. Our determination that PNCC is an acquired
asset corporation removed it from the category of a GOCC. Thus, while the SEC has
no jurisdiction over GOCCs with original charter or created by special law primarily
because they are governed by their charters, it retains jurisdiction over governmentacquired asset corporations. Therefore, the SEC may compel PNCC to hold a
stockholders meeting for the purpose of electing members of the latters board of
directors.

WHEREFORE, the instant petition is DISMISSED for lack of merit and the
November 29, 2000 Decision of the CA in CA-G.R. SP No. 60366 is hereby
AFFIRMED in toto. Costs against petitioner.

SO ORDERED.
ISAGANI MEDINA, DR. MARIA SERENA DIOKNO, DR. OLIVIA CAOILI, DR.
FRANCISCO NEMENZO II, DEAN PACIFICO AGABIN, CARMELITA GUNO,
and MARICHU LAMBINO, petitioners, vs. HON. COURT OF APPEALS and
AROKIASWAMY WILLIAM MARGARET CELINE, respondents.

72

DECISION

Drs. Manuel, Quiason, Skandarajah, and Teodoro. Dr. Quiason added the following
qualification to his signature:

MENDOZA, J.:
For review before the Court is the decision of the Court of Appeals[1] in CA-G.R. SP
No. 42788, dated December 16, 1997, which granted private respondents application
for a writ of mandatory injunction, and its resolution, dated July 13, 1998, denying
petitioners motion for reconsideration.
The antecedent facts are as follows:

Ms. Arokiaswamy must incorporate the suggestions I made during the successful
defense of her Ph.D. thesis.[3]
Dr. Medina did not sign the approval form but added the following comment:
Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na ang mga
revisions ng dissertation.[4]

Private respondent Arokiaswamy William Margaret Celine is a citizen of India and


holder of a Philippine visitors visa. Sometime in April 1988, she enrolled in the
doctoral program in Anthropology of the University of the Philippines College of
Social Sciences and Philosophy (CSSP) in Diliman, Quezon City.

Dr. Teodoro added the following note to his signature:

After completing the units of course work required in her doctoral program, private
respondent went on a two-year leave of absence to work as Tamil Programme
Producer of the Vatican Radio in the Vatican and as General Office Assistant at the
International Right to Life Federation in Rome. She returned to the Philippines in
July 1991 to work on her dissertation entitled, Tamil Influences in Malaysia,
Indonesia and the Philippines.

In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr. Manuel,
private respondent requested a meeting with the panel members, especially Dr.
Medina, to discuss the amendments suggested by the panel members during the oral
defense. The meeting was held at the deans office with Dean Paz, private respondent,
and a majority of the defense panel present.[6] During the meeting, Dean Paz
remarked that a majority vote of the panel members was sufficient for a student to
pass, notwithstanding the failure to obtain the consent of the Deans representative.

On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P. Department
of Anthropology, wrote a letter to Dr. Maria Serena Diokno, CSSP Associate Dean
and Graduate Program Director, certifying that private respondent had finished her
dissertation and was ready for her oral defense. Dr. Rolda suggested that the oral
defense be held on January 6, 1993 but, in a letter, dated February 2, 1993, Dr.
Serena Diokno rescheduled it on February 5, 1993. Named as members of the
dissertation panel were Drs. E. Arsenio Manuel, Serafin Quiason, Sri Skandarajah,
Noel Teodoro, and Isagani Medina, the last included as the deans representative.
After going over private respondents dissertation, Dr. Medina informed CSSP Dean
Consuelo Joaquin-Paz that there was a portion in private respondents dissertation
that was lifted, without proper acknowledgment, from Balfours Cyclopaedia of India
and Eastern and Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour
1885 reprint) and from John Edyes article entitled Description of the Various Classes
of Vessels Constructed and Employed by the Natives of the Coasts of Coromandel,
Malabar, and the Island of Ceylon for their Coasting Navigation in the Royal Asiatic
Society of Great Britain and Ireland Journal, volume I, pp. 1-14 (1833).[2]
Nonetheless, private respondent was allowed to defend her dissertation on February
5, 1993. Four (4) out of the five (5) panelists gave private respondent a passing mark
for her oral defense by affixing their signatures on the approval form. These were

Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa panel ang


bound copies.[5]

On March 24, 1993, the CSSP College Faculty Assembly approved private
respondents graduation pending submission of final copies of her dissertation.
In April 1993, private respondent submitted copies of her supposedly revised
dissertation to Drs. Manuel, Skandarajah, and Quiason, who expressed their assent to
the dissertation. Petitioners maintain, however, that private respondent did not
incorporate the revisions suggested by the panel members in the final copies of her
dissertation.
Private respondent left a copy of her dissertation in Dr. Teodoros office on April 15,
1993 and proceeded to submit her dissertation to the CSSP without the approvals of
Dr. Medina and Dr. Teodoro, relying on Dean Pazs March 5, 1993 statement.
Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the
approval form.[7]
Dean Paz then accepted private respondents dissertation in partial fulfillment of the
course requirements for the doctorate degree in Anthropology.

73

In a letter to Dean Paz, dated April 17, 1993, private respondent expressed concern
over matters related to her dissertation. She sought to explain why the signature of
Dr. Medina was not affixed to the revision approval form. Private respondent said
that since she already had the approval of a majority of the panel members, she no
longer showed her dissertation to Dr. Medina nor tried to obtain the latters signature
on the revision approval form. She likewise expressed her disappointment over the
CSSP administration and charged Drs. Diokno and Medina with maliciously working
for the disapproval of her dissertation, and further warned Dean Paz against
encouraging perfidious acts against her.

CONSUELO JOAQUIN-PAZ, Ph.D.

On April 17, 1993, the University Council met to approve the list of candidates for
graduation for the second semester of school year 1992-1993. The list, which was
endorsed to the Board of Regents for final approval, included private respondents
name.

On the other hand, Dean Paz also wrote a letter to private respondent, dated April 21,
1993, that she would not be granted an academic clearance unless she substantiated
the accusations contained in her letter dated April 17, 1993.

On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor for
Academic Affairs, requesting the exclusion of private respondents name from the list
of candidates for graduation, pending clarification of the problems regarding her
dissertation. Her letter reads:[8]
Abril 21, 1993
Dr. Milagros Ibe
Vice Chancellor for Academic Affairs
Unibersidad ng Pilipinas
Quezon Hall, Diliman, Q.C.
Mahal na Dr. Ibe,

Dekano
Apparently, however, Dean Pazs letter did not reach the Board of Regents on time,
because the next day, April 22, 1993, the Board approved the University Councils
recommendation for the graduation of qualified students, including private
respondent. Two days later, on April 24, 1993, private respondent graduated with the
degree of Doctor of Philosophy in Anthropology.

In her letter, dated April 27, 1993, private respondent claimed that Dr. Medinas
unfavorable attitude towards her dissertation was a reaction to her failure to include
him and Dr. Francisco in the list of panel members; that she made the revisions
proposed by Drs. Medina and Teodoro in the revised draft of her dissertation; and
that Dr. Diokno was guilty of harassment.
In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally charged
private respondent with plagiarism and recommended that the doctorate granted to
her be withdrawn.[9]
On May 13, 1993, Dean Paz formed an ad hoc committee, composed of faculty
members from various disciplines and chaired by Dr. Eva Duka-Ventura, to
investigate the plagiarism charge against private respondent. Meanwhile, she
recommended to U.P. Diliman Chancellor, Dr. Emerlinda Roman, that the Ph.D.
degree conferred on private respondent be withdrawn.[10]
In a letter, dated June 7, 1993, Dean Paz informed private respondent of the charges
against her.[11]

Mahigpit ko pong hinihiling na hwag munang isama ang pangalan ni Ms.


Arokiaswam[y] William Margaret Celine sa listahan ng mga bibigyan ng degri na
Ph.D. (Anthropology) ngayon[g] semester, dahil sa mga malubhang bintang nya sa
ilang myembro ng panel para sa oral defense ng disertasyon nya at sa mga akusasyon
ng ilan sa mga ito sa kanya.

On June 15, 1993, the Ventura Committee submitted a report to Dean Paz, finding at
least ninety (90) instances or portions in private respondents thesis which were lifted
from sources without proper or due acknowledgment.

Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago makonfer ang
degri kay Ms. Arokiaswam[y]. Kelangan po ito para mapangalagaan ang istandard ng
pinakamataas na degree ng Unibersidad.

On July 28, 1993, the CSSP College Assembly unanimously approved the
recommendation to withdraw private respondents doctorate degree and forwarded its
recommendation to the University Council. The University Council, in turn,
approved and endorsed the same recommendation to the Board of Regents on August
16, 1993.

(Sgd.)

74

On September 6, 1993, the Board of Regents deferred action on the recommendation


to study the legal implications of its approval.[12]
Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor
Emerlinda Roman summoned private respondent to a meeting on the same day and
asked her to submit her written explanation to the charges against her.
During the meeting, Chancellor Roman informed private respondent of the charges
and provided her a copy of the findings of the investigating committee.[13] Private
respondent, on the other hand, submitted her written explanation in a letter dated
September 25, 1993.
Another meeting was held on October 8, 1993 between Chancellor Roman and
private respondent to discuss her answer to the charges. A third meeting was
scheduled on October 27, 1993 but private respondent did not attend it, alleging that
the Board of Regents had already decided her case before she could be fully heard.
On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P. President,
alleging that some members of the U.P. administration were playing politics in her
case.[14] She sent another letter, dated December 14, 1993, to Dr. Armand Fabella,
Chairman of the Board of Regents, complaining that she had not been afforded due
process and claiming that U.P. could no longer withdraw her degree since her
dissertation had already been accepted by the CSSP.[15]
Meanwhile, the U.P. Office of Legal Services justified the position of the University
Council in its report to the Board of Regents. The Board of Regents, in its February
1, 1994 and March 24, 1994 meetings, further deferred action thereon.
On July 11, 1994, private respondent sent a letter to the Board of Regents requesting
a re-investigation of her case. She stressed that under the Rules and Regulations on
Student Conduct and Discipline, it was the student disciplinary tribunal which had
jurisdiction to decide cases of dishonesty and that the withdrawal of a degree already
conferred was not one of the authorized penalties which the student disciplinary
tribunal could impose.
On July 28, 1994, the Board of Regents decided to release private respondents
transcript of grades without annotation although it showed that private respondent
passed her dissertation with 12 units of credit.
On August 17, 1994, Chancellor Roger Posadas issued Administrative Order No. 9494 constituting a special committee composed of senior faculty members from the
U.P. units outside Diliman to review the University Councils recommendation to
withdraw private respondents degree. With the approval of the Board of Regents and
the U.P. Diliman Executive Committee, Posadas created a five-man committee,

chaired by Dr. Paulino B. Zafaralla, with members selected from a list of nominees
screened by Dr. Emerenciana Arcellana, then a member of the Board of Regents. On
August 31, 1994, the members of the Zafaralla committee and private respondent
met at U.P. Los Baos.
Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to private
respondent a copy of her transcript of grades and certificate of graduation.
In a letter to Chancellor Posadas, dated September 1, 1994, private respondent
requested that the Zafaralla committee be provided with copies of the U.P. Charter
(Act No. 1870), the U.P. Rules and Regulations on Student Conduct and Discipline,
her letter-response to Chancellor Roman, dated September 25, 1993, as well as all
her other communications.
On September 19, 1994, Chancellor Posadas obtained the Zafaralla Committees
report, signed by its chairman, recommending the withdrawal of private respondents
doctorate degree. The report stated:[16]
After going through all the pertinent documents of the case and interviewing Ms.
Arokiaswamy William, the following facts were established:
1. There is overwhelming evidence of massive lifting from a published source word
for word and, at times, paragraph by paragraph without any acknowledgment of the
source, even by a mere quotation mark. At least 22 counts of such documented
liftings were identified by the Committee. These form part of the approximately
ninety (90) instances found by the Committee created by the Dean of the College and
subsequently verified as correct by the Special Committee. These instances involved
the following forms of intellectual dishonesty: direct lifting/copying without
acknowledgment, full/partial lifting with improper documentation and substitution of
terms or words (e.g., Tamil in place of Sanskrit, Tamilization in place of
Indianization) from an acknowledged source in support of her thesis (attached
herewith is a copy of the documents for reference); and
2. Ms. Arokiaswamy William herself admits of being guilty of the allegation of
plagiarism. Fact is, she informed the Special Committee that she had been admitting
having lifted several portions in her dissertation from various sources since the
beginning.
In view of the overwhelming proof of massive lifting and also on the admission of
Ms. Arokiaswamy William that she indeed plagiarized, the Committee strongly
supports the recommendation of the U.P. Diliman Council to withdraw the doctoral
degree of Ms. Margaret Celine Arokiaswamy William.

75

On the basis of the report, the University Council, on September 24, 1994,
recommended to the Board of Regents that private respondent be barred in the future
from admission to the University either as a student or as an employee.
On January 4, 1995, the secretary of the Board of Regents sent private respondent
the following letter:[17]
4 January 1995
Ms. Margaret Celine Arokiaswamy William
Department of Anthropology
College of Social Sciences and Philosophy

On January 18, 1995, private respondent wrote a letter to Commissioner Sedfrey


Ordoez, Chairman of the Commission on Human Rights, asking the commissions
intervention.[18] In a letter, dated February 14, 1995, to Secretary Ricardo Gloria,
Chairman of the Board of Regents, she asked for a reinvestigation of her case. She
also sought an audience with the Board of Regents and/or the U.P. President, which
request was denied by President Javier, in a letter dated June 2, 1995.
On August 10, 1995, private respondent then filed a petition for mandamus with a
prayer for a writ of preliminary mandatory injunction and damages, which was
docketed as Civil Case No. Q-95-24690 and assigned to Branch 81 of the Regional
Trial Court of Quezon City.[19] She alleged that petitioners had unlawfully
withdrawn her degree without justification and without affording her procedural due
process. She prayed that petitioners be ordered to restore her degree and to pay her
P500,000.00 as moral and exemplary damages and P1,500,000.00 as compensation
for lost earnings.

U.P. Diliman, Quezon City


Dear Ms. Arokiaswamy William:
This is to officially inform you about the action taken by the Board of Regents at its
1081st and 1082nd meetings held last 17 November and 16 December 1994
regarding your case, the excerpts from the minutes of which are attached herewith.
Please be informed that the members present at the 1081st BOR meeting on 17
November 1994 resolved, by a majority decision, to withdraw your Ph.D. degree as
recommended by the U.P. Diliman University Council and as concurred with by the
External Review Panel composed of senior faculty from U.P. Los Baos and U.P.
Manila. These faculty members were chosen by lot from names submitted by the
University Councils of U.P. Los Baos and U.P. Manila.
In reply to your 14 December 1994 letter requesting that you be given a good lawyer
by the Board, the Board, at its 1082nd meeting on 16 December 1994, suggested that
you direct your request to the Office of Legal Aid, College of Law, U.P. Diliman.

On August 6, 1996, the trial court, Branch 227, rendered a decision dismissing the
petition for mandamus for lack of merit.[20] Private respondent appealed to the
Court of Appeals, which on December 16, 1997, reversed the lower court. The
dispositive portion of the appellate courts decision reads:[21]
WHEREFORE, the decision of the court a quo is hereby reversed and set aside.
Respondents are ordered to restore to petitioner her degree of Ph.D. in Anthropology.
No pronouncement as to costs.
SO ORDERED.
Hence, this petition. Petitioners contend:
I

Sincerely yours,

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING


THE WRIT OF MANDAMUS AND ORDERING PETITIONERS TO RESTORE
RESPONDENTS DOCTORAL DEGREE.

(Sgd.)

II

VIVENCIO R. JOSE

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING


THAT THE DOCTORAL DEGREE GIVEN RESPONDENT BY U.P. CANNOT BE
RECALLED WITHOUT VIOLATING HER RIGHT TO ENJOYMENT OF
INTELLECTUAL PROPERTY AND TO JUSTICE AND EQUITY.

Secretary of the University


and of the Board of Regents

III

76

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING


PETITIONERS OF THEIR RIGHT TO SUBSTANTIVE DUE PROCESS.[22]
Petitioners argue that private respondent failed to show that she had been unlawfully
excluded from the use and enjoyment of a right or office to which she is entitled so
as to justify the issuance of the writ of mandamus. They also contend that she failed
to prove that the restoration of her degree is a ministerial duty of U.P. or that the
withdrawal of the degree violated her right to the enjoyment of intellectual property.
On the other hand, private respondent, unassisted by counsel, argue that petitioners
acted arbitrarily and with grave abuse of discretion in withdrawing her degree even
prior to verifying the truth of the plagiarism charge against her; and that as her
answer to the charges had not been forwarded to the members of the investigating
committees, she was deprived of the opportunity to comment or refute their findings.
In addition, private respondent maintains that petitioners are estopped from
withdrawing her doctorate degree; that petitioners acted contrary to 9 of the U.P.
Charter and the U.P. Rules and Regulations on Student Conduct and Discipline of the
University, which according to her, does not authorize the withdrawal of a degree as
a penalty for erring students; and that only the college committee or the student
disciplinary tribunal may decide disciplinary cases, whose report must be signed by a
majority of its members.
We find petitioners contention to be meritorious.
Mandamus is a writ commanding a tribunal, corporation, board or person to do the
act required to be done when it or he unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, there being no other plain, speedy, and adequate remedy
in the ordinary course of law.[23] In University of the Philippines Board of Regents
v. Ligot-Telan,[24] this Court ruled that the writ was not available to restrain U.P.
from the exercise of its academic freedom. In that case, a student who was found
guilty of dishonesty and ordered suspended for one year by the Board of Regents,
filed a petition for mandamus and obtained from the lower court a temporary
restraining order stopping U.P. from carrying out the order of suspension. In setting
aside the TRO and ordering the lower court to dismiss the students petition, this
Court said:
[T]he lower court gravely abused its discretion in issuing the writ of preliminary
injunction of May 29, 1993. The issuance of the said writ was based on the lower
courts finding that the implementation of the disciplinary sanction of suspension on
Nadal would work injustice to the petitioner as it would delay him in finishing his

course, and consequently, in getting a decent and good paying job. Sadly, such a
ruling considers only the situation of Nadal without taking into account the
circumstances, clearly of his own making, which led him into such a predicament.
More importantly, it has completely disregarded the overriding issue of academic
freedom which provides more than ample justification for the imposition of a
disciplinary sanction upon an erring student of an institution of higher learning.
From the foregoing arguments, it is clear that the lower court should have restrained
itself from assuming jurisdiction over the petition filed by Nadal. Mandamus is never
issued in doubtful cases, a showing of a clear and certain right on the part of the
petitioner being required. It is of no avail against an official or government agency
whose duty requires the exercise of discretion or judgment.[25]
In this case, the trial court dismissed private respondents petition precisely on
grounds of academic freedom but the Court of Appeals reversed holding that private
respondent was denied due process. It said:
It is worthy to note that during the proceedings taken by the College Assembly
culminating in its recommendation to the University Council for the withdrawal of
petitioners Ph.D. degree, petitioner was not given the chance to be heard until after
the withdrawal of the degree was consummated. Petitioners subsequent letters to the
U.P. President proved unavailing.[26]
As the foregoing narration of facts in this case shows, however, various committees
had been formed to investigate the charge that private respondent had committed
plagiarism and, in all the investigations held, she was heard in her defense. Indeed, if
any criticism may be made of the university proceedings before private respondent
was finally stripped of her degree, it is that there were too many committee and
individual investigations conducted, although all resulted in a finding that private
respondent committed dishonesty in submitting her doctoral dissertation on the basis
of which she was conferred the Ph.D. degree.
Indeed, in administrative proceedings, the essence of due process is simply the
opportunity to explain ones side of a controversy or a chance to seek reconsideration
of the action or ruling complained of.[27] A party who has availed of the opportunity
to present his position cannot tenably claim to have been denied due process.[28]
In this case, private respondent was informed in writing of the charges against
her[29] and afforded opportunities to refute them. She was asked to submit her
written explanation, which she forwarded on September 25, 1993.[30] Private
respondent then met with the U.P. chancellor and the members of the Zafaralla
committee to discuss her case. In addition, she sent several letters to the U.P.
authorities explaining her position.[31]

77

It is not tenable for private respondent to argue that she was entitled to have an
audience before the Board of Regents. Due process in an administrative context does
not require trial-type proceedings similar to those in the courts of justice.[32] It is
noteworthy that the U.P. Rules do not require the attendance of persons whose cases
are included as items on the agenda of the Board of Regents.[33]
Nor indeed was private respondent entitled to be furnished a copy of the report of the
Zafaralla committee as part of her right to due process. In Ateneo de Manila
University v. Capulong,[34] we held:
Respondent students may not use the argument that since they were not accorded the
opportunity to see and examine the written statements which became the basis of
petitioners February 14, 1991 order, they were denied procedural due process.
Granting that they were denied such opportunity, the same may not be said to detract
from the observance of due process, for disciplinary cases involving students need
not necessarily include the right to cross examination. An administrative proceeding
conducted to investigate students participation in a hazing activity need not be
clothed with the attributes of a judicial proceeding. . .
In this case, in granting the writ of mandamus, the Court of Appeals held:
First. Petitioner graduated from the U.P. with a doctorate degree in Anthropology.
After graduation, the contact between U.P. and petitioner ceased. Petitioner is no
longer within the ambit of the disciplinary powers of the U.P. As a graduate, she is
entitled to the right and enjoyment of the degree she has earned. To recall the degree,
after conferment, is not only arbitrary, unreasonable, and an act of abuse, but a
flagrant violation of petitioners right of enjoyment to intellectual property.
Second. Respondents aver that petitioners graduation was a mistake.
Unfortunately this mistake was arrived at after almost a year after graduation.
Considering that the members of the thesis panel, the College Faculty Assembly, and
the U.P. Council are all men and women of the highest intellectual acumen and
integrity, as respondents themselves aver, suspicion is aroused that the alleged
mistake might not be the cause of withdrawal but some other hidden agenda which
respondents do not wish to reveal.
At any rate, We cannot countenance the plight the petitioner finds herself enmeshed
in as a consequence of the acts complained of. Justice and equity demand that this be
rectified by restoring the degree conferred to her after her compliance with the
academic and other related requirements.
Art. XIV, 5 (2) of the Constitution provides that [a]cademic freedom shall be enjoyed
in all institutions of higher learning. This is nothing new. The 1935 Constitution[35]

and the 1973 Constitution[36] likewise provided for the academic freedom or, more
precisely, for the institutional autonomy of universities and institutions of higher
learning. As pointed out by this Court in Garcia v. Faculty Admission Committee,
Loyola School of Theology,[37] it is a freedom granted to institutions of higher
learning which is thus given a wide sphere of authority certainly extending to the
choice of students. If such institution of higher learning can decide who can and who
cannot study in it, it certainly can also determine on whom it can confer the honor
and distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was obtained
through fraud, a university has the right to revoke or withdraw the honor or
distinction it has thus conferred. This freedom of a university does not terminate
upon the graduation of a student, as the Court of Appeals held. For it is precisely the
graduation of such a student that is in question. It is noteworthy that the investigation
of private respondents case began before her graduation. If she was able to join the
graduation ceremonies on April 24, 1993, it was because of too many investigations
conducted before the Board of Regents finally decided she should not have been
allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher learning, for
the constitutional grant of academic freedom, to quote again from Garcia v. Faculty
Admission Committee, Loyola School of Theology, is not to be construed in a
niggardly manner or in a grudging fashion.
Under the U.P. Charter, the Board of Regents is the highest governing body of the
University of the Philippines.[38] It has the power to confer degrees upon the
recommendation of the University Council.[39] It follows that if the conferment of a
degree is founded on error or fraud, the Board of Regents is also empowered, subject
to the observance of due process, to withdraw what it has granted without violating a
students rights. An institution of higher learning cannot be powerless if it discovers
that an academic degree it has conferred is not rightfully deserved. Nothing can be
more objectionable than bestowing a universitys highest academic degree upon an
individual who has obtained the same through fraud or deceit. The pursuit of
academic excellence is the universitys concern. It should be empowered, as an act of
self-defense, to take measures to protect itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their education, the
USC as an educational institution is also entitled to pursue its academic freedom and
in the process has the concomitant right to see to it that this freedom is not
jeopardized.[40]
In the case at bar, the Board of Regents determined, after due investigation
conducted by a committee composed of faculty members from different U.P. units,
that private respondent committed no less than ninety (90) instances of intellectual

78

dishonesty in her dissertation. The Board of Regents decision to withdraw private


respondents doctorate was based on documents on record including her admission
that she committed the offense.[41]
On the other hand, private respondent was afforded the opportunity to be heard and
explain her side but failed to refute the charges of plagiarism against her. Her only
claim is that her responses to the charges against her were not considered by the
Board of Regents before it rendered its decision. However, this claim was not
proven. Accordingly, we must presume regularity in the performance of official
duties in the absence of proof to the contrary.[42]
Very much the opposite of the position of the Court of Appeals that, since private
respondent was no longer a student of the U.P., the latter was no longer within the
ambit of disciplinary powers of the U.P., is private respondents contention that it is
the Student Disciplinary Tribunal which had jurisdiction over her case because the
charge is dishonesty. Private respondent invokes 5 of the U.P. Rules and Regulations
on Student Conduct and Discipline which provides:

Provided, that regional units of the University shall have original jurisdiction over all
cases involving students of such units.
Private respondent argues that under 25 (a) of the said Rules and Regulations,
dishonesty in relation to ones studies (i.e., plagiarism) may be punished only with
suspension for at least one (1) year.
As the above-quoted provision of 5 of the Rules and Regulations indicates, the
jurisdiction of the student disciplinary tribunal extends only to disciplinary actions.
In this case, U.P. does not seek to discipline private respondent. Indeed, as the
appellate court observed, private respondent is no longer within the ambit of
disciplinary powers of the U.P. Private respondent cannot even be punished since, as
she claims, the penalty for acts of dishonesty in administrative disciplinary
proceedings is suspension from the University for at least one year. What U.P.,
through the Board of Regents, seeks to do is to protect its academic integrity by
withdrawing from private respondent an academic degree she obtained through
fraud.

Jurisdiction. All cases involving discipline of students under these rules shall be
subject to the jurisdiction of the student disciplinary tribunal, except the following
cases which shall fall under the jurisdiction of the appropriate college or unit;

WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the
petition for mandamus is hereby DISMISSED.

(a) Violation of college or unit rules and regulations by students of the college, or

SO ORDERED.

(b) Misconduct committed by students of the college or unit within its classrooms or
premises or in the course of an official activity;
Supreme Court

Bellosillo, (Chairman), Quisumbing, and Buena, JJ., concur.


Petitioner,

Manila

FIRST DIVISION

JOSE R. CATACUTAN,

G.R. No. 175991

79

DEL CASTILLO, and


Present:

VILLARAMA, JR., JJ.

CORONA, C.J., Chairperson,

PEOPLE OF THE PHILIPPINES,

- versus -

Promulgated:
LEONARDO-DE CASTRO,

Respondent.

August 31, 2011


BERSAMIN,

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

80

DECISION

and that he would not implement them despite written orders from CHED[7] and the
CSC, Caraga Regional Office.[8] Thus, on August 2, 1997, private complainants
lodged a formal complaint against petitioner for grave abuse of authority and
disrespect of lawful orders before the Office of the Ombudsman for Mindanao.[9]

DEL CASTILLO, J.:

It is well within the Courts discretion to reject the presentation of evidence which it
judiciously believes irrelevant and impertinent to the proceeding on hand.

Before us is a Petition for Review on Certiorari filed by petitioner Jose R. Catacutan


seeking to set aside and reverse the Decision[1] dated December 7, 2006 of the
Sandiganbayan which affirmed the Decision[2] dated July 25, 2005 of the Regional
Trial Court (RTC), Branch 30, Surigao City convicting him of the crime of violation
of Section 3(e) of Republic Act (RA) No. 3019 otherwise known as the Anti-Graft
and Corrupt Practices Act.

Factual Antecedents

The antecedent facts are clear and undisputed.


Private complainant Georgito Posesano was an Instructor II with Salary Grade 13
while private complainant Magdalena Divinagracia was an Education Program
Specialist II with Salary Grade 16, both at the Surigao del Norte School of Arts and
Trades (SNSAT).[3]

On June 2, 1997, the Commission on Higher Education (CHED) Caraga


Administrative Region, appointed and promoted private complainants as Vocational
Instruction Supervisor III with Salary Grade 18 at SNSAT.[4] These promotional
appointments were duly approved and attested as permanent by the Civil Service
Commission (CSC) on June 3, 1997.[5] Being then the Officer-In-Charge of SNSAT,
the approved appointments were formally transmitted to the petitioner on June 6,
1997,[6] copy furnished the concerned appointees. Despite receipt of the
appointment letter, the private complainants were not able to assume their new
position since petitioner made known that he strongly opposed their appointments

In an Information dated February 27, 1998, petitioner was charged before the RTC of
Surigao City with violation of Section 3(e) of RA 3019 as amended, committed in
the following manner, to wit:

That in June 1997 or sometime thereafter, in Surigao City, Philippines and within the
jurisdiction of this Honorable Court, the accused JOSE R. CATACUTAN, OIC
Principal of Surigao del Norte School of Arts and Trades (SNSAT), Surigao City,
with salary grade below 27, while in the performance of his official duties, thus
committing the act in relation to his office, willfully, feloniously and unlawfully did
then and there, with grave abuse of authority and evident bad faith, refuse to
implement the promotion/appointments of Georgito Posesano and Magdalena A.
Divinagracia as Vocational Supervisors III notwithstanding the issuance of the valid
appointments by the appointing authority and despite the directive of the Regional
Director of the Commission on Higher Education and the Civil Service Commission
in the region, thereby causing undue injury to complainants who were supposed to
receive a higher compensation for their promotion, as well as [to] the school and the
students who were deprived of the better services which could have been rendered by
Georgito Posesano and Magdalena A. Divinagracia as Vocational Instruction
Supervisors [III].

CONTRARY TO LAW.[10]

During arraignment on September 22, 1998, petitioner pleaded not guilty.

For his defense, petitioner admitted that he did not implement the promotional
appointments of the private complainants because of some procedural lapses or
infirmities attending the preparation of the appointment papers. According to him,

81

the appointment papers were prepared by SNSAT Administrative Officer, Crispin


Noguera, using blank forms bearing the letterhead of SNSAT and not of the CHED
Regional Office who made the appointments. He also averred that the appointment
papers cited the entire plantilla[11] (1996 Plantilla-OSEC-DECSB-VOCIS3-19,
Pages 1-16) instead of only the particular page on which the vacant item occurs. He
likewise claimed that he received only the duplicate copies of the appointments
contrary to the usual procedure where the original appointment papers and other
supporting documents are returned to his office. Finally, he asserted that the
transmittal letter from the CHED did not specify the date of effectivity of the
appointments. These alleged infirmities, he contended, were formally brought to the
attention of the CHED Regional Director on June 20, 1997[12] who, however,
informed him that the subject appointments were regular and valid and directed him
to implement the same. Still not satisfied, petitioner sought the intercession of CHED
Chairman Angel C. Alcala in the settlement of this administrative problem[13] but
the latter did not respond. Petitioner alleged that his refusal to implement the
appointments of the private complainants was not motivated by bad faith but he just
wanted to protect the interest of the government by following strict compliance in the
preparation of appointment papers.

him the penalty of imprisonment [of] SIX (6) YEARS and ONE (1) MONTH and
PERPETUAL DISQUALIFICATION FROM PUBLIC OFFICE, and to pay the
costs.

The aforementioned accused is hereby ordered to pay private complainants Georgito


Posesano and Magdalena Divinagracia the sum of Fifty Thousand Pesos
(P50,000.00) each, for moral damages.

SO ORDERED.[15]

Petitioner moved for reconsideration[16] but it was denied in an Order[17] dated


October 13, 2005.

Ruling of the Regional Trial Court


Ruling of the Sandiganbayan
On July 25, 2005, the RTC rendered its Decision[14] holding that the act of the
petitioner in defying the orders of the CHED and the CSC to implement the subject
promotional appointments despite the rejection of his opposition, demonstrates his
palpable and patent fraudulent and dishonest purpose to do moral obliquity or
conscious wrongdoing for some perverse motive or ill will. The trial court ruled that
petitioners refusal to implement the appointments of the private complainants had
caused undue injury to them. Thus, it held petitioner guilty of the crime charged and
accordingly sentenced him to suffer the penalty of imprisonment of six (6) years and
one (1) month and perpetual disqualification from public office.

On appeal, petitioners conviction was affirmed in toto by the Sandiganbayan.[18]


The appellate court ruled that the Decision of the trial court, being supported by
evidence and firmly anchored in law and jurisprudence, is correct. It held that
petitioner failed to show that the trial court committed any reversible error in
judgment.

Hence, this petition.


The RTC disposed of the case as follows:

WHEREFORE, finding the accused JOSE R. CATACUTAN guilty beyond


reasonable doubt [of] VIOLATION OF SECTION 3(e) of R.A. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, this Court hereby imposes upon

In the Courts Resolution[19] dated February 26, 2007, the Office of the Solicitor
General (OSG) was required to file its Comment. The OSG filed its Comment[20] on
June 5, 2007 while the Office of the Special Prosecutor filed the Comment[21] for
respondent People of the Philippines on February 22, 2008.

82

Issue

Due process simply demands an opportunity to be heard.[24] Due process is satisfied


when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy.[25] Where an opportunity to be heard either
through oral arguments or through pleadings is accorded, there is no denial of
procedural due process.[26]

The sole issue for consideration in this present petition is:

Whether the [petitioners] constitutional right[s] to due process x x x and x x x equal


protection of [the] law x x x were violated x x x [when he was denied] the
opportunity to present [in] evidence [the Court of Appeals] Decision dated April 18,
2001 x x x in CA-G.R. SP No. 51795 entitled Jose R. Catacutan, petitioner, versus
Office of the Ombudsman for Mindanao, et al., respondents.[22]

Invoking the constitutional provision on due process,[23] petitioner argues that the
Decision rendered by the trial court is flawed and is grossly violative of his right to
be heard and to present evidence. He contends that he was not able to controvert the
findings of the trial court since he was not able to present the Court of Appeals (CAs)
Decision in CA-G.R. SP No. 51795 which denied the administrative case filed
against him and declared that his intention in refusing to implement the promotions
of the private complainants falls short of malice or wrongful intent.

Our Ruling

The petition lacks of merit.

Guided by these established jurisprudential pronouncements, petitioner can hardly


claim denial of his fundamental right to due process. Records show that petitioner
was able to confront and cross-examine the witnesses against him, argue his case
vigorously, and explain the merits of his defense. To reiterate, as long as a party was
given the opportunity to defend his interests in due course, he cannot be said to have
been denied due process of law for the opportunity to be heard is the better accepted
norm of procedural due process.

There is also no denial of due process when the trial court did not allow petitioner to
introduce as evidence the CA Decision in CA-G.R. SP No. 51795. It is well within
the courts discretion to reject the presentation of evidence which it judiciously
believes irrelevant and impertinent to the proceeding on hand. This is specially true
when the evidence sought to be presented in a criminal proceeding as in this case,
concerns an administrative matter. As the Sandiganbayan aptly remarked:

The RTC committed no error in judgment when it did not allow the Accusedappellant to present the Decision of the Court of Appeals in CA-G.R. SP No. 51795
(Jose R. Catacutan vs. Office of the Ombudsman). The findings in administrative
cases are not binding upon the court trying a criminal case, even if the criminal
proceedings are based on the same facts and incidents which gave rise to the
administrative matter. The dismissal of a criminal case does not foreclose
administrative action or necessarily gives the accused a clean bill of health in all
respects. In the same way, the dismissal of an administrative case does not operate to
terminate a criminal proceeding with the same subject matter. x x x[27]

Petitioner was not deprived of his right to due process.

This action undertaken by the trial court and sustained by the appellate court was not
without legal precedent. In Paredes v. Court of Appeals,[28] this Court ruled:

83

immaterial, or incompetent evidence, or testimony of an incompetent witness. It is


not an error to refuse evidence which although admissible for certain purposes, is not
admissible for the purpose which counsel states as the ground for offering it.[30]
It is indeed a fundamental principle of administrative law that administrative cases
are independent from criminal actions for the same act or omission. Thus, an
absolution from a criminal charge is not a bar to an administrative prosecution, or
vice versa. One thing is administrative liability; quite another thing is the criminal
liability for the same act.

At any rate, even assuming that the trial court erroneously rejected the introduction
as evidence of the CA Decision, petitioner is not left without legal recourse.
Petitioner could have availed of the remedy provided in Section 40, Rule 132 of the
Rules of Court which provides:

xxxx

Thus, considering the difference in the quantum of evidence, as well as the procedure
followed and the sanctions imposed in criminal and administrative proceedings, the
findings and conclusions in one should not necessarily be binding on the other.
Notably, the evidence presented in the administrative case may not necessarily be the
same evidence to be presented in the criminal cases. x x x

In Nicolas v. Sandiganbayan,[29] the Court reiterated:

Section 40. Tender of excluded evidence. If documents or things offered in evidence


are excluded by the court, the offeror may have the same attached to or made part of
the record. If the evidence excluded is oral, the offeror may state for the record the
name and other personal circumstances of the witness and the substance of the
proposed testimony.

As observed by the appellate court, if the petitioner is keen on having the RTC admit
the CAs Decision for whatever it may be worth, he could have included the same in
his offer of exhibits. If an exhibit sought to be presented in evidence is rejected, the
party producing it should ask the courts permission to have the exhibit attached to
the record.

This Court is not unmindful of its rulings that the dismissal of an administrative case
does not bar the filing of a criminal prosecution for the same or similar acts subject
of the administrative complaint and that the disposition in one case does not
inevitably govern the resolution of the other case/s and vice versa. x x x

As things stand, the CA Decision does not form part of the records of the case, thus it
has no probative weight. Any evidence that a party desires to submit for the
consideration of the court must be formally offered by him otherwise it is excluded
and rejected and cannot even be taken cognizance of on appeal. The rules of
procedure and jurisprudence do not sanction the grant of evidentiary value to
evidence which was not formally offered.

On the basis of the afore-mentioned precedents, the Court has no option but to
declare that the courts below correctly disallowed the introduction in evidence of the
CA Decision. Due process of law is not denied by the exclusion of irrelevant,

Section 3(e) of RA 3019, as amended, provides:

84

Section 3. Corrupt practices of public officers. In addition to acts or omissions of


public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful.

xxxx

(e) Causing any undue injury to any party, including the Government or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.

Under said provision of law, three essential elements must thus be satisfied, viz:

1.
The accused must be a public officer discharging administrative, judicial
or official functions;

All the above enumerated elements of the offense charged have been successfully
proven by the prosecution.

First, petitioner could not have committed the acts imputed against him during the
time material to this case were it not for his being a public officer, that is, as the
Officer-In-Charge (Principal) of SNSAT. As such public officer, he exercised official
duties and functions, which include the exercise of administrative supervision over
the school such as taking charge of personnel management and finances, as well as
implementing instruction as far as appointment of teachers.[32]

Second, petitioner acted with evident bad faith in refusing to implement the
appointments of private complainants. As the Sandiganbayan aptly remarked:

The records clearly indicate that the refusal of Catacutan to implement the subject
promotion was no longer anchored on any law or civil service rule as early [as] the
July 14, 1997 letter of the CHED Regional Director addressing the four issues raised
by the Accused-appellant in the latters protest letter. x x x In light of the undisputed
evidence presented to the trial court that Catacutans reason for not implementing the
appointments was a personal dislike or ill feelings towards Posesano, this Court
believes that Catacutans refusal was impelled by an ill motive or dishonest purpose
characteristic of bad faith. x x x

xxxx
2.
He must have acted with manifest partiality, evident bad faith or
inexcusable negligence; and

3.
His action caused any undue injury to any party, including the government
or gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions.[31]

In the August 1, 1997 [m]emorandum issued by the CHED Regional Director,


Catacutan was once again directed, in strong words, to cease and desist from further
questioning what has been lawfully acted upon by competent authorities. Catacutan
deliberately ignored the memorandum and even challenged the private complainants
to file a case against him. Such arrogance is indicative of the bad faith of the
accused-appellant.

85

Yet again, the [CSC] Regional Director wrote the Accused-appellant on September 5,
1997, clarifying with finality the validity of the appointment. Still, Accused-appellant
failed to implement the subject promotions. This stubborn refusal to implement the
clear and repeated directive of competent authorities established the evident bad faith
of Catacutan and belies any of his claims to the contrary.[33]

While petitioner may have laudable objectives in refusing the implementation of


private complainants valid appointments, the Court fails to see how he can still claim
good faith when no less than the higher authorities have already sustained the
validity of the subject appointments and have ordered him to proceed with the
implementation. It is well to remember that good intentions do not win cases,
evidence does.[34]

Third, undue injury to the private complainants was duly proven to the point of
moral certainty. Here, the private complainants suffered undue injury when they
were not able to assume their official duties as Vocational Supervisors III despite the
issuance of their valid appointments. As borne out by the records, they were able to
assume their new positions only on November 19, 1997. So in the interregnum from
June to November 1997, private complainants failed to enjoy the benefits of an
SUPREME COURT
Manila
EN BANC
G.R. No. 167011

April 30, 2008

SPOUSES CARLOS S. ROMUALDEZ and ERLINDA R. ROMUALDEZ,


petitioners,
vs.
COMMISSION ON ELECTIONS and DENNIS GARAY, respondents.
DECISION

increased salary corresponding to their newly appointed positions. Likewise


established is that as a result of petitioners unjustified and inordinate refusal to
implement their valid appointments notwithstanding clear and mandatory directives
from his superiors, the private complainants suffered mental anguish, sleepless
nights, serious anxiety warranting the award of moral damages under Article 2217 of
the New Civil Code.

At this point, the Court just needs to stress that the foregoing are factual matters that
were threshed out and decided upon by the trial court which were subsequently
affirmed by the Sandiganbayan. Where the factual findings of both the trial court and
the appellate court coincide, the same are binding on this Court. In any event, apart
from these factual findings of the lower courts, this Court in its own assessment and
review of the records considers the findings in order.

WHEREFORE, the petition is DENIED and the assailed Decision of the


Sandiganbayan promulgated on December 7, 2006 is AFFIRMED.
SO ORDERED.
of 11 June 2004, the COMELEC En Banc directed the Law Department to file the
appropriate Information with the proper court against petitioners Carlos S.
Romualdez and Erlinda Romualdez for violation of Section 10(g) and (j)3 in relation
to Section 45(j)4 of Republic Act No. 8189, otherwise known as The Voters
Registration Act of 1996.5 Petitioners Motion for Reconsideration thereon was
denied.
The factual antecedents leading to the instant Petition are presented hereunder:
On 12 July 2000, private respondent Dennis Garay, along with Angelino Apostol6
filed a Complaint-Affidavit7 with the COMELEC thru the Office of the Election
Officer in Burauen, Leyte, charging petitioners with violation of Section 261(y)(2)8
and Section 261(y)(5)9 of the Omnibus Election Code, similarly referred to as Batas
Pambansa Blg. 881; and Section 1210 of Republic Act No. 8189.

CHICO-NAZARIO, J.:
This treats of the Petition for Review on Certiorari with a prayer for the issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction filed by
petitioners Spouses Carlos S. Romualdez and Erlinda R. Romualdez seeking to annul
and set aside the Resolutions, dated 11 June 20041 and 27 January 20052 of the
Commission on Elections (COMELEC) in E.O. Case No. 2000-36. In the Resolution

Private respondent deposed, inter alia, that: petitioners are of legal ages and residents
of 113 Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City;
on 9 May 2000 and 11 May 2000, petitioners Carlos S. Romualdez and Erlinda R.
Romualdez, applied for registration as new voters with the Office of the Election
Officer of Burauen, Leyte, as evidenced by Voter Registration Record Nos.
42454095 and 07902952, respectively; in their sworn applications, petitioners made

86

false and untruthful representations in violation of Section 1011 of Republic Act


Nos. 8189, by indicating therein that they are residents of 935 San Jose Street,
Burauen, Leyte, when in truth and in fact, they were and still are residents of 113
Mariposa Loop, Mariposa Street, Bagong Lipunan ng Crame, Quezon City, and
registered voters of Barangay Bagong Lipunan ng Crame, District IV, Quezon City,
Precinct No. 4419-A, as evidenced by Voter Registration Record Nos. 26195824 and
26195823; and that petitioners, knowing fully well said truth, intentionally and
willfully, did not fill the blank spaces in said applications corresponding to the length
of time which they have resided in Burauen, Leyte. In fine, private respondent
charged petitioners, to wit:
Respondent-spouses, Carlos Sison Romualdez and Erlinda Reyes Romualdez
committed and consummated election offenses in violation of our election laws,
specifically, Sec. 261, paragraph (y), subparagraph (2), for knowingly making any
false or untruthful statements relative to any data or information required in the
application for registration, and of Sec. 261, paragraph (y), subparagraph (5),
committed by any person who, being a registered voter, registers anew without filing
an application for cancellation of his previous registration, both of the Omnibus
Election Code (BP Blg. 881), and of Sec. 12, RA 8189 (Voter Registration Act) for
failure to apply for transfer of registration records due to change of residence to
another city or municipality."12
The Complaint-Affidavit contained a prayer that a preliminary investigation be
conducted by the COMELEC, and if the evidence so warrants, the corresponding
Information against petitioners be filed before the Regional Trial Court (RTC) for the
prosecution of the same.
Petitioners filed a Joint Counter-Affidavit with Motion to Dismiss13 dated 2 April
2001. They contended therein that they did not make any false or untruthful
statements in their application for registration. They avowed that they intended to
reside in Burauen, Leyte, since the year 1989. On 9 May 2000, they took actual
residence in Burauen, Leyte, by leasing for five (5) years, the house of Juanito and
Fe Renomeron at No. 935, San Jose Street in Burauen, Leyte. On even date, the
Barangay District III Council of Burauen passed a Resolution of Welcome,
expressing therein its gratitude and appreciation to petitioner Carlos S. Romualdez
for choosing the Barangay as his official residence.14

Romualdez before the proper Regional Trial Court for violation of Section 10 (g) and
(j) in relation to Section 45 (j) of Republic Act 8189 and to authorize the Director IV
of the Law Department to designate a Comelec Prosecutor to handle the prosecution
of the case with the duty to submit periodic report after every hearing of the case.15
On 11 June 2004, the COMELEC En Banc found no reason to depart from the
recommendatory Resolution of 28 November 2003, and ordered, viz:
WHEREFORE, premises considered, the Law Department is hereby directed to file
the appropriate information with the proper court against respondents CARLOS S.
ROMUALDEZ AND ERLINDA ROMUALDEZ for violation of Section 10 (g) and
(j) in relation to Section 45 (j) of the Republic Act No. 8189.16
Petitioners filed a Motion for Reconsideration thereon.
Acting on the Motion, the COMELEC found no cogent reason to disturb the assailed
En Banc Resolution of 11 June 2004,17 rationalizing, thus:
However, perusal of the records reveal (sic) that the arguments and issues raised in
the Motion for Reconsideration are merely a rehash of the arguments advanced by
the Respondents in [their] Memorandum received by the Law Department on 17
April 2001, the same [w]as already considered by the Investigating Officer and was
discussed in her recommendation which eventually was made as the basis for the En
Bancs resolution.
As aptly observed by the Investigating Officer, the filing of request for the
cancellation and transfer of Voting Registration Record does not automatically cancel
the registration records. The fact remains that at the time of application for
registration as new voter of the herein Respondents on May 9 and 11, 2001 in the
Office of Election Officer of Burauen, Leyte their registration in Barangay 4419-A,
Barangay Bagong Lipunan ng Crame Quezon City was still valid and subsisting.18

On 28 November 2003, Atty. Maria Norina S. Tangaro-Casingal, COMELEC


Investigating Officer, issued a Resolution, recommending to the COMELEC Law
Department (Investigation and Prosecution Division), the filing of the appropriate
Information against petitioners, disposing, thus:

On 12 January 2006, Alioden D. Dalaig, Director IV, Law Department of the


COMELEC filed with the RTC, Burauen, Leyte, separate Informations against
petitioner Carlos S. Romualdez19 for violation of Section 10(g), in relation to
Section 45(j) of Republic Act No. 8189, and against petitioner Erlinda R.
Romualdez20 for violation of Section 10(g), in relation to Section 45(j) of Republic
Act No. 8189, subsequently docketed as Crim. Case No. BN-06-03-4185 and Crim.
Case No. BN-06-03-4183, respectively. Moreover, separate Informations for
violation of Section 10(j), in relation to Section 45(j) of Republic Act No. 8189 were
filed against petitioners.21

PREMISES CONSIDERED, the Law Department (Investigation and Prosecution


Division), RECOMMENDS to file the necessary information against Carlos Sison

Hence, petitioners come to us via the instant Petition, submitting the following
arguments:

87

I
RESPONDENT COMMISSION ON ELECTIONS GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF ITS
JURISDICTION; and
II
COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT PREMISED ITS
RESOLUTION ON A MISAPPREHENSION OF FACTS AND FAILED TO
CONSIDER CERTAIN RELEVANT FACTS THAT WOULD JUSTIFY A
DIFFERENT CONCLUSION.22
On 4 May 2006, petitioners filed a Motion Reiterating Prayer for Issuance of Writ of
Preliminary Injunction and to Cite for Indirect Contempt,23 alleging that two
separate Informations, both dated 12 January 2006, were filed with the RTC by the
COMELEC against petitioner Carlos S. Romualdez for violation of Section 10(j), in
relation to Section 45(j) of Republic Act No. 8189, in Criminal Case No. BN-06-039184; and for violation of Section 10(g), in relation to Section 45(j) of Republic Act
No. 8189, in Criminal Case No. BN-06-03-9185. Similarly, the Motion alleged that
the COMELEC filed with the RTC, two separate Informations, both dated 12
January 2006, against petitioner Erlinda R. Romualdez, charging her with the same
offenses as those charged against petitioner Carlos S. Romualdez, and thereafter,
docketed as Criminal Case No. BN-06-03-9182, and No. BN-06-03-9183.

would constitute an election offense; hence, it runs contrary to Section 14(1)25 and
Section 14(2),26 Article III of the 1987 Constitution.
We are not persuaded.
First. The Complaint-Affidavit filed by private respondent with the COMELEC is
couched in a language which embraces the allegations necessary to support the
charge for violation of Section 10(g) and (j), in relation to Section 45(j) of Republic
Act No. 8189.
A reading of the relevant laws is in order, thus:
Section 10(g) and Section 10(j) of Republic Act No. 8189, provide as follows:
SEC. 10 Registration of Voters. - A qualified voter shall be registered in the
permanent list of voters in a precinct of the city or municipality wherein he resides to
be able to vote in any election. To register as a voter, he shall personally accomplish
an application form for registration as prescribed by the Commission in three (3)
copies before the Election Officer on any date during office hours after having
acquired the qualifications of a voter.
The application shall contain the following data:
xxxx
(g) Periods of residence in the Philippines and in the place of registration;

On 20 June 2006, this Court issued a Resolution24 denying for lack of merit
petitioners Motion Reiterating Prayer for Issuance of Writ of Preliminary Injunction
and to Cite for Indirect Contempt.

xxxx
(j) A statement that the application is not a registered voter of any precinct;

We shall now resolve, in seriatim, the arguments raised by petitioners.


Petitioners contend that the election offenses for which they are charged by private
respondent are entirely different from those which they stand to be accused of before
the RTC by the COMELEC. According to petitioners, private respondents complaint
charged them for allegedly violating, to wit: 1) Section 261(y)(2) and Section 261(y)
(5) of the Omnibus Election Code, and 2) Section 12 of the Voters Registration Act;
however, the COMELEC En Banc directed in the assailed Resolutions, that they be
charged for violations of Section 10(g) and (j), in relation to Section 45(j) of the
Voters Registration Act. Essentially, petitioners are of the view that they were not
accorded due process of law. Specifically, their right to refute or submit documentary
evidence against the new charges which COMELEC ordered to be filed against
them. Moreover, petitioners insist that Section 45(j) of the Voters Registration Act is
vague as it does not refer to a definite provision of the law, the violation of which

The application for registration shall contain three (3) specimen signatures of the
applicant, clear and legible rolled prints of his left and right thumbprints, with four
identification size copies of his latest photograph, attached thereto, to be taken at the
expense of the Commission.
Before the applicant accomplishes his application for registration, the Election
Officer shall inform him of the qualifications and disqualifications prescribed by law
for a voter, and thereafter, see to it that the accomplished application contains all the
data therein required and that the applicants specimen signatures, fingerprints, and
photographs are properly affixed in all copies of the voters application.
Moreover, Section 45(j) of the same Act, recites, thus:

88

SEC. 45. Election Offense. The following shall be considered election offenses
under this Act:
xxxx
(j) Violation of any of the provisions of this Act.
Significantly, the allegations in the Complaint-Affidavit which was filed with the
Law Department of the COMELEC, support the charge directed by the COMELEC
En Banc to be filed against petitioners with the RTC. Even a mere perusal of the
Complaint-Affidavit would readily show that Section 10 of Republic Act No. 8189
was specifically mentioned therein. On the matter of the acts covered by Section
10(g) and (j), the Complaint-Affidavit, spells out the following allegations, to wit:
5. Respondent-spouses made false and untruthful representations in their applications
(Annexes "B" and "C") in violation of the requirements of Section 10, RA 8189 (The
Voters Registration Act):
5.1 Respondent-spouses, in their sworn applications (Annexes "B" and "C", claimed
to be residents of 935 San Jose [S]treet, Burauen, Leyte, when in truth and in fact,
they were and still are residents of 113 Mariposa Loop, Mariposa [S]treet, Bagong
Lipunan ng Crame, Quezon City and registered voters of Barangay Bagong Lipunan
ng Crame, District IV, Quezon City, Precinct No. 4419-A, a copy of the Certification
issued by Hon. Emmanuel V. Gozon, Punong Barangay, Bagong Lipunan ng Crame,
Quezon City is hereto attached and made an integral part hereof, as Annex "D";
5.2 Respondent-spouses knowing fully well said truth, intentionally and willfully, did
not fill the blank spaces in their applications (Annexes "B" and "C") corresponding
to the length of time they have resided in Burauen, Leyte;
6. Respondent-spouses, in (sic) all intents and purposes, were and still are residents
and registered voters of Quezon City, as evidenced by Voter Registration Record
Nos. 26195824 and 26195823, respectively; photocopies of which are hereto
attached as Annexes "E" and "F"[.] Likewise, attached is a "Certification" (Annex
"G") of Ms. Evelyn B. Bautista, Officer-in-Charge of the Office of the Election
Officer, Fourth District, Quezon City, dated May 31, 2000, together with a certified
copy of the computer print-out of the list of voters of Precinct No. 4419-A (Annex
"G-1" ) containing the names of voters Carlos Romualdez and Erlinda Reyes
Romualdez. The Certification reads as follows:
"THIS IS TO CERTIFY that as per office record MR. CARLOS ROMUALDEZ and
MS. ERLINDA REYES ROMUALDEZ are registered voters of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City, Precinct Number 4419A with voters
affidavit serial nos. 26195824 and 26195823, respectively.

This certification is issued for whatever legal purpose it may serve."


7. Respondent-spouses, registered as new voters of the Municipality of Burauen,
Leyte, [in spite of] the fact that they were and still are, registered voters of Quezon
City as early as June 22, 1997;
7.1 That, Double Registration is an election offense.
A person qualified as a voter is only allowed to register once.
If a person registers anew as a voter in spite of a subsisting registration, the new
application for registration will be disapproved. The registrant is also liable not only
for an election offense of double registration, but also for another election offense of
knowingly making any false or untruthful statement relative to any data or
information required in the application for registration.
In fact, when a person applies for registration as a voter, he or she fills up a Voter
Registration Record form in his or her own handwriting, which contains a
Certification which reads:
"I do solemnly swear that the above statements regarding my person are true and
correct; that I possess all the qualifications and none of the disqualifications of a
voter; that the thumbprints, specimen signatures and photographs appearing herein
are mine; and that I am not registered as a voter in any other precinct."27
Petitioners cannot be said to have been denied due process on the claim that the
election offenses charged against them by private respondent are entirely different
from those for which they stand to be accused of before the RTC, as charged by the
COMELEC. In the first place, there appears to be no incongruity between the
charges as contained in the Complaint-Affidavit and the Informations filed before the
RTC, notwithstanding the denomination by private respondent of the alleged
violations to be covered by Section 261(y)(2) and Section 261(y)(5) of the Omnibus
Election Code and Section 12 of Republic Act No. 8189. Evidently, the Informations
directed to be filed by the COMELEC against petitioners, and which were, in fact,
filed with the RTC, were based on the same set of facts as originally alleged in the
private respondents Complaint-Affidavit.
Petitioners buttress their claim of lack of due process by relying on the case of
Lacson v. Executive Secretary.28 Citing Lacson, petitioners argue that the real nature
of the criminal charge is determined by the actual recital of facts in the Complaint or
Information; and that the object of such written accusations was to furnish the
accused with such a description of the charge against him, as will enable him to
make his defense. Let it be said that, in Lacson, this court resolved the issue of

89

whether under the allegations in the subject Informations therein, it is the


Sandiganbayan or the Regional Trial Court which has jurisdiction over the multiple
murder case against therein petitioner and intervenors. In Lacson, we underscored
the elementary rule that the jurisdiction of a court is determined by the allegations in
the Complaint or Information, and not by the evidence presented by the parties at the
trial.29 Indeed, in Lacson, we articulated that the real nature of the criminal charge is
determined not from the caption or preamble of the Information nor from the
specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the Complaint or
Information.30
Petitioners reliance on Lacson, however, does not support their claim of lack of due
process because, as we have said, the charges contained in private respondents
Complaint-Affidavit and the charges as directed by the COMELEC to be filed are
based on the same set of facts. In fact, the nature of the criminal charges in private
respondents Complaint-Affidavit and that of the charges contained in the
Informations filed with the RTC, pursuant to the COMELEC Resolution En Banc are
the same, such that, petitioners cannot claim that they were not able to refute or
submit documentary evidence against the charges that the COMELEC filed with the
RTC. Petitioners were afforded due process because they were granted the
opportunity to refute the allegations in private respondents Complaint-Affidavit. On
2 April 2001, in opposition to the Complaint-Affidavit, petitioners filed a Joint
Counter-Affidavit with Motion to Dismiss with the Law Department of the
COMELEC. They similarly filed a Memorandum before the said body. Finding that
due process was not dispensed with under the circumstances in the case at bar, we
agree with the stance of the Office of the Solicitor General that petitioners were
reasonably apprised of the nature and description of the charges against them. It
likewise bears stressing that preliminary investigations were conducted whereby
petitioners were informed of the complaint and of the evidence submitted against
them. They were given the opportunity to adduce controverting evidence for their
defense. In all these stages, petitioners actively participated.
The instant case calls to our minds Orquinaza v. People,31 wherein the concerned
police officer therein designated the offense charged as sexual harassment; but, the
prosecutor found that there was no transgression of the anti-sexual harassment law,
and instead, filed an Information charging therein petitioner with acts of
lasciviousness. On a claim that there was deprivation of due process, therein
petitioner argued that the Information for acts of lasciviousness was void as the
preliminary investigation conducted was for sexual harassment. The court held that
the designation by the police officer of the offense is not conclusive as it is within the
competence of the prosecutor to assess the evidence submitted and determine
therefrom the appropriate offense to be charged.

Accordingly, the court pronounced that the complaint contained all the allegations to
support the charge of acts of lasciviousness under the Revised Penal Code; hence, the
conduct of another preliminary investigation for the offense of acts of lasciviousness
would be a futile exercise because the complainant would only be presenting the
same facts and evidence which have already been studied by the prosecutor.32 The
court frowns upon such superfluity which only serves to delay the prosecution and
disposition of the criminal complaint.33
Second. Petitioners would have this court declare Section 45(j) of Republic Act No.
8189 vague, on the ground that it contravenes the fair notice requirement of the 1987
Constitution, in particular, Section 14(1) and Section 14(2), Article III of thereof.
Petitioners submit that Section 45(j) of Republic Act No. 8189 makes no reference to
a definite provision of the law, the violation of which would constitute an election
offense.
We are not convinced.
The void-for-vagueness doctrine holds that a law is facially invalid if men of
common intelligence must necessarily guess at its meaning and differ as to its
application.34 However, this Court has imposed certain limitations by which a
criminal statute, as in the challenged law at bar, may be scrutinized. This Court has
declared that facial invalidation35 or an "on-its-face" invalidation of criminal statutes
is not appropriate.36 We have so enunciated in no uncertain terms in Romualdez v.
Sandiganbayan, 37 thus:
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that 'one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional.' As has been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'" (underscoring supplied)
"To this date, the Court has not declared any penal law unconstitutional on the
ground of ambiguity." While mentioned in passing in some cases, the void-forvagueness concept has yet to find direct application in our jurisdiction. In Yu Cong
Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it violated
the equal protection clause, not because it was vague. Adiong v. Comelec decreed as
void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that

90

a portion of RA 6735 was unconstitutional because of undue delegation of legislative


powers, not because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass
acquittal of parties whose cases may not have even reached the courts. Such
invalidation would constitute a departure from the usual requirement of "actual case
and controversy" and permit decisions to be made in a sterile abstract context having
no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the
U.S. Supreme Court in these words:
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is rarely
if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-byline analysis of detailed statutes, x x x ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes,
described as a "manifestly strong medicine" to be employed "sparingly and only as a
last resort." In determining the constitutionality of a statute, therefore, its provisions
that have allegedly been violated must be examined in the light of the conduct with
which the defendant has been charged. (Emphasis supplied.)
At the outset, we declare that under these terms, the opinions of the dissent which
seek to bring to the fore the purported ambiguities of a long list of provisions in
Republic Act No. 8189 can be deemed as a facial challenge. An appropriate "as
applied" challenge in the instant Petition should be limited only to Section 45 (j) in
relation to Sections 10 (g) and (j) of Republic Act No. 8189the provisions upon
which petitioners are charged. An expanded examination of the law covering
provisions which are alien to petitioners case would be antagonistic to the rudiment
that for judicial review to be exercised, there must be an existing case or controversy
that is appropriate or ripe for determination, and not conjectural or anticipatory.
We further quote the relevant ruling in David v. Arroyo on the proscription anent a
facial challenge:38
Moreover, the overbreadth doctrine is not intended for testing the validity of a law
that "reflects legitimate state interest in maintaining comprehensive control over
harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence,
insurrection and rebellion are considered "harmful" and "constitutionally unprotected
conduct." In Broadrick v. Oklahoma, it was held:

It remains a matter of no little difficulty to determine when a law may properly be


held void on its face and when such summary action is inappropriate. But the plain
import of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the
outset, attenuates as the otherwise unprotected behavior that it forbids the State to
sanction moves from pure speech toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which,
by their terms, seek to regulate only "spoken words" and again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong medicine," to
be used "sparingly and only as a last resort," and is "generally disfavored;" The
reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. A writer and
scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. Moreover, challengers
to a law are not permitted to raise the rights of third parties and can only assert their
own interests. In overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law becomes unenforceable
until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad laws "very existence may
cause others not before the court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that deterrent effect on the
speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its

91

actual operation to petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from constitutionally
protected speech or expression.
Xxx xxx xxx
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can be
no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.
This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which
holds that "a law is facially invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application." It is subject to the same
principles governing overbreadth doctrine. For one, it is also an analytical tool for
testing "on their faces" statutes in free speech cases. And like overbreadth, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible
applications.
Be that as it may, the test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practice.39 This
Court has similarly stressed that the vagueness doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude.40
As structured, Section 4541 of Republic Act No. 8189 makes a recital of election
offenses under the same Act. Section 45(j) is, without doubt, crystal in its
specification that a violation of any of the provisions of Republic Act No. 8189 is an
election offense. The language of Section 45(j) is precise. The challenged provision
renders itself to no other interpretation. A reading of the challenged provision
involves no guesswork. We do not see herein an uncertainty that makes the same
vague.
Notably, herein petitioners do not cite a word in the challenged provision, the import
or meaning of which they do not understand. This is in stark contrast to the case of
Estrada v. Sandiganbayan42 where therein petitioner sought for statutory definition
of particular words in the challenged statute. Even then, the Court in Estrada rejected
the argument.
This Court reasoned:

The rationalization seems to us to be pure sophistry. A statute is not rendered


uncertain and void merely because general terms are used therein, or because of the
employment of terms without defining them; much less do we have to define every
word we use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so define the
words employed in a statute will not necessarily result in the vagueness or ambiguity
of the law so long as the legislative will is clear, or at least, can be gathered from the
whole act, which is distinctly expressed in the Plunder Law."
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute
will be interpreted in their natural, plain and ordinary acceptation and signification,
unless it is evident that the legislature intended a technical or special legal meaning
to those words. The intention of the lawmakers who are, ordinarily, untrained
philologists and lexicographers to use statutory phraseology in such a manner is
always presumed.
Perforce, this Court has underlined that an act will not be held invalid merely
because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.43
The evident intent of the legislature in including in the catena of election offenses the
violation of any of the provisions of Republic Act No. 8189, is to subsume as
punishable, not only the commission of proscribed acts, but also the omission of acts
enjoined to be observed. On this score, the declared policy of Republic Act No. 8189
is illuminating. The law articulates the policy of the State to systematize the present
method of registration in order to establish a clean, complete, permanent and updated
list of voters. A reading of Section 45 (j) conjointly with the provisions upon which
petitioners are charged, i.e., Sections 10 (g) and (j) would reveal that the matters that
are required to be set forth under the aforesaid sections are crucial to the
achievement of a clean, complete, permanent and updated list of voters. The factual
information required by the law is sought not for mere embellishment.
There is a definitive governmental purpose when the law requires that such facts
should be set forth in the application. The periods of residence in the Philippines and
in the place of registration delve into the matter of residency, a requisite which a
voter must satisfy to be deemed a qualified voter and registered in the permanent list
of voters in a precinct of the city or municipality wherein he resides. Of even
rationality exists in the case of the requirement in Section 10 (j), mandating that the
applicant should state that he/she is not a registered voter of any precinct. Multiple
voting by so-called flying voters are glaring anomalies which this country strives to
defeat. The requirement that such facts as required by Section 10 (g) and Section 10

92

(j) be stated in the voters application form for registration is directly relevant to the
right of suffrage, which the State has the right to regulate.
It is the opportune time to allude to the case of People v. Gatchalian44 where the
therein assailed law contains a similar provision as herein assailed before us.
Republic Act No. 602 also penalizes any person who willfully violates any of the
provisions of the Act. The Court dismissed the challenged, and declared the
provision constitutional. The Court in Gatchalian read the challenged provision, "any
of the provisions of this [A]ct" conjointly with Section 3 thereof which was the
pertinent portion of the law upon which therein accused was prosecuted. Gatchalian
considered the terms as all-embracing; hence, the same must include what is
enjoined in Section 3 thereof which embodies the very fundamental purpose for
which the law has been adopted. This Court ruled that the law by legislative fiat
intends to punish not only those expressly declared unlawful but even those not so
declared but are clearly enjoined to be observed to carry out the fundamental purpose
of the law.45 Gatchalian remains good law, and stands unchallenged.
It also does not escape the mind of this Court that the phraseology in Section 45(j) is
employed by Congress in a number of our laws.46 These provisions have not been
declared unconstitutional.
Moreover, every statute has in its favor the presumption of validity.47 To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, and
not one that is doubtful, speculative or argumentative.48 We hold that petitioners
failed to overcome the heavy presumption in favor of the law. Its constitutionality
must be upheld in the absence of substantial grounds for overthrowing the same.
A salient point. Courts will refrain from touching upon the issue of constitutionality
unless it is truly unavoidable and is the very lis mota. In the case at bar, the lis mota
is the alleged grave abuse of discretion of the COMELEC in finding probable cause
for the filing of criminal charges against petitioners.
Third. Petitioners maintain that the COMELEC En Banc, premised its finding on a
misapprehension of facts, and committed grave abuse of discretion in directing the
filing of Informations against them with the RTC.
We are once again unimpressed.
The constitutional grant of prosecutorial power in the COMELEC finds statutory
expression under Section 26549 of Batas Pambansa Blg. 881, otherwise known as
the Omnibus Election Code.50 The task of the COMELEC whenever any election
offense charge is filed before it is to conduct the preliminary investigation of the
case, and make a determination of probable cause. Under Section 8(b), Rule 34 of
the COMELEC Rules of Procedure, the investigating officer makes a determination

of whether there is a reasonable ground to believe that a crime has been


committed.51 In Baytan v. COMELEC,52 this Court, sufficiently elucidated on the
matter of probable cause in the prosecution of election offenses, viz:
It is also well-settled that the finding of probable cause in the prosecution of election
offenses rests in the COMELEC's sound discretion. The COMELEC exercises the
constitutional authority to investigate and, where appropriate, prosecute cases for
violation of election laws, including acts or omissions constituting election frauds,
offense and malpractices. Generally, the Court will not interfere with such finding of
the COMELEC absent a clear showing of grave abuse of discretion. This principle
emanates from the COMELEC's exclusive power to conduct preliminary
investigation of all election offenses punishable under the election laws and to
prosecute the same, except as may otherwise be provided by law.53
It is succinct that courts will not substitute the finding of probable cause by the
COMELEC in the absence of grave abuse of discretion. The abuse of discretion must
be so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary and despotic manner by reason of
passion or hostility.54
According to the COMELEC En Banc, the investigating officer, in the case at bar,
held that there was sufficient cause for the filing of criminal charges against
petitioners, and found no reason to depart therefrom. Without question, on May 9
and 11 of 2001, petitioners applied for registration as new voters with the Office of
the Election Officer of Burauen, Leyte, notwithstanding the existence of petitioners
registration records as registered voters of Precinct No. 4419-A of Barangay Bagong
Lipunan ng Crame, District IV, Quezon City. The directive by the COMELEC which
affirmed the Resolution55 of 28 November 2000 of Investigating Officer Atty.
Tangaro-Casingal does not appear to be wanting in factual basis, such that a
reasonably prudent man would conclude that there exists probable cause to hold
petitioners for trial. Thus, in the aforesaid Resolution, the Investigating Officer,
found:
A violation therefore of Section 10 of Republic Act No. 8189 is an election offense.
In the instant case, when respondents Carlos Romualdez and Erlinda Romualdez
filed their respective applications for registration as new voters with the Office of the
Election Officer of Burauen, Leyte on May 9 and 11, 2001, respectively, they stated
under oath that they are not registered voters in other precinct (VRR Nos. 42454095
and 07902941). However, contrary to their statements, records show they are still
registered voters of Precinct No. 4419-A, barangay Bagong Lipunan ng Crame,
District IV, Quezon City, as per VRR Nos. 26195825 and 26195823. In other words,
respondents registration records in Quezon City is (sic) still in existence.

93

While it may be true that respondents had written the City Election Officer of
District IV, Quezon City for cancellation of their voters registration record as voters
(sic) therein, they cannot presume that the same will be favorably acted upon.
Besides, RA 8189 provides for the procedure in cases of transfer of residence to
another city/municipality which must be complied with, to wit:
"Section 12. Change of Residence to Another City or Municipality. Any registered
voter who has transferred residence to another city or municipality may apply with
the Election Officer of his new residence for the transfer of his registration records.
The application for transfer of registration shall be subject to the requirements of
notice and hearing and the approval of the Election Registration Board, in
accordance with this Act. Upon approval, of the application for transfer, and after
notice of such approval to the Election Officer of their former residence of the voter,
said Election Officer shall transmit by registered mail the voters registration record
to the Election Officer of the voters new residence."
They cannot claim ignorance of the abovestated provision on the procedure for
transfer of registration records by reason of transferred new residence to another
municipality. Based on the affidavit executed by one Eufemia S. Cotoner, she alleged
that the refusal of the Assistant Election Officer Ms. Estrella Perez to accept the
letter of respondents was due to improper procedure because respondents should
have filed the required request for transfer with the Election Officer of Burauen,
Leyte. Despite this knowledge, however, they proceeded to register as new voters of
Burauen, Leyte, notwithstanding the existence of their previous registrations in
Quezon City.
In their subsequent affidavit of Transfer of Voters Registration under Section 12 of
Republic Act 8189, respondents admitted that they erroneously filed an application
as a new voter (sic) with the office of the Election Officer of Burauen, Leyte, by
reason of an honest mistake, which they now desire to correct. (underscoring ours).
Respondents lose sight of the fact that a statutory offense, such as violation of
election law, is mala prohibita. Proof of criminal intent is not necessary. Good faith,
ignorance or lack of malice is beside the point. Commission of the act is sufficient. It
is the act itself that is punished.
xxxx
In view of the foregoing, the Law Department respectfully submits that there is
probable cause to hold respondents Carlos Romualdez and Erlinda Romualdez for
trial in violation of Section 10(g) and (j) in relation to Section 45(j) of Republic Act

No. 8189. There is no doubt that they applied for registration as new voters of
Burauen, Leyte consciously, freely and voluntarily.56
We take occasion to reiterate that the Constitution grants to the COMELEC the
power to prosecute cases or violations of election laws. Article IX (C), Section 2 (6)
of the 1987 Constitution, provides:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and where appropriate, prosecute cases
or violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices.
This power to prosecute necessarily involves the power to determine who shall be
prosecuted, and the corollary right to decide whom not to prosecute.57 Evidently,
must this power to prosecute also include the right to determine under which laws
prosecution will be pursued. The courts cannot dictate the prosecution nor usurp its
discretionary powers. As a rule, courts cannot interfere with the prosecutors
discretion and control of the criminal prosecution.58 Its rationale cannot be doubted.
For the business of a court of justice is to be an impartial tribunal, and not to get
involved with the success or failure of the prosecution to prosecute.59 Every now
and then, the prosecution may err in the selection of its strategies, but such errors are
not for neutral courts to rectify, any more than courts should correct the blunders of
the defense.60
Fourth. In People v. Delgado,61 this Court said that when the COMELEC, through
its duly authorized law officer, conducts the preliminary investigation of an election
offense and upon a prima facie finding of a probable cause, files the Information in
the proper court, said court thereby acquires jurisdiction over the case. Consequently,
all the subsequent disposition of said case must be subject to the approval of the
court. The records show that Informations charging petitioners with violation of
Section 10(g) and (j), in relation to Section 45(j) of Republic Act No. 8189 had been
filed with the RTC. The case must, thus, be allowed to take its due course.
It may be recalled that petitioners prayed for the issuance of a Temporary Restraining
Order or Writ of Preliminary Injunction before this Court to restrain the COMELEC
from executing its Resolutions of 11 June 2004 and 27 January 2005. In a Resolution
dated 20 June 2006, this Court En Banc denied for lack of merit petitioners Motion
Reiterating Prayer for Issuance of Writ of Preliminary Injunction and to Cite for
Indirect Contempt. Logically, the normal course of trial is expected to have
continued in the proceedings a quo.
WHEREFORE, the Petition is DENIED. The assailed Resolutions, dated 11 June
2004 and 27 January 2005 of the COMELEC En Banc are AFFIRMED. Costs
against petitioners.

94

SO ORDERED.
City Fiscal Diaz for respondents.
Villavicencio
Facts:

MALCOLM, J.:

Justo Lukban as Manila Mayor together with the police officer, took custody of 170
women at the night of October 25 beyond the latter's consent and knowledge and
thereafter were shipped to Davao City where they were signed as laborers.
A writ of habeas corpus was filed against the mayor on behalf of those women. The
court granted the writ, but the mayor was not able to bring any of the women before
the court on the stipulated date.
Issue:
Whether or not the act of mayor has a legal basis.
Held:
The supreme court said that the mayor's acts were not legal. His intent of
exterminating vice was commendable, but there was no law saying that he could
force filipino women to change their domicile from manila to nother place. The
women, said the court, although in a sense "lepers of society" were still filipino
citizens and such they were entitled to the constitutional enjoyed by all other filipino
citizens. The right to freedom of domicile was such a fundamental right that its
suppression could considered tantamount to slavery.
The supreme court upheld the right of filipino citizens to freedom of domicile or the
Liberty of abode."Ours is a government of laws and not of men."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639

March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,


vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.

The annals of juridical history fail to reveal a case quite as remarkable as the one
which this application for habeas corpus submits for decision. While hardly to be
expected to be met with in this modern epoch of triumphant democracy, yet, after all,
the cause presents no great difficulty if there is kept in the forefront of our minds the
basic principles of popular government, and if we give expression to the paramount
purpose for which the courts, as an independent power of such a government, were
constituted. The primary question is Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which
might prove profitable reading for other departments of the government, the facts are
these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill repute, which had
been permitted for a number of years in the city of Manila, closed. Between October
16 and October 25, 1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city authorities quietly
perfected arrangements with the Bureau of Labor for sending the women to Davao,
Mindanao, as laborers; with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At
any rate, about midnight of October 25, the police, acting pursuant to orders from the
chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into patrol wagons, and
placed them aboard the steamers that awaited their arrival. The women were given
no opportunity to collect their belongings, and apparently were under the impression
that they were being taken to a police station for an investigation. They had no
knowledge that they were destined for a life in Mindanao. They had not been asked if
they wished to depart from that region and had neither directly nor indirectly given
their consent to the deportation. The involuntary guests were received on board the
steamers by a representative of the Bureau of Labor and a detachment of
Constabulary soldiers. The two steamers with their unwilling passengers sailed for
Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were
landed and receipted for as laborers by Francisco Sales, provincial governor of
Davao, and by Feliciano Yigo and Rafael Castillo. The governor and the hacendero
Yigo, who appear as parties in the case, had no previous notification that the
women were prostitutes who had been expelled from the city of Manila. The further
happenings to these women and the serious charges growing out of alleged illtreatment are of public interest, but are not essential to the disposition of this case.

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Suffice it to say, generally, that some of the women married, others assumed more or
less clandestine relations with men, others went to work in different capacities,
others assumed a life unknown and disappeared, and a goodly portion found means
to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable
number of the deportees presented an application for habeas corpus to a member of
the Supreme Court. Subsequently, the application, through stipulation of the parties,
was made to include all of the women who were sent away from Manila to Davao
and, as the same questions concerned them all, the application will be considered as
including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by
Justo Lukban, Mayor of the city of 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 Hohmann,
admitted certain facts relative to sequestration and deportation, and prayed that the
writ should not be granted because the petitioners were not proper parties, because
the action should have been begun in the Court of First Instance for Davao,
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 city of Manila. According to an exhibit attached to the
answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yigo and Governor Sales. In open court, the fiscal admitted, in
answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November
4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the province of Davao, and
Feliciano Yigo, an hacendero of Davao, to bring before the court the persons
therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the
clerk of the Supreme Court sitting as commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose behalf the writ was issued were
produced in court by the respondents. It has been shown that three of those who had
been able to come back to Manila through their own efforts, were notified by the
police and the secret service to appear before the court. The fiscal appeared, repeated
the facts more comprehensively, reiterated the stand taken by him when pleading to
the original petition copied a telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had passed
between the Director of Labor and the attorney for that Bureau then in Davao, and
offered certain affidavits showing that the women were contained with their life in
Mindanao and did not wish to return to Manila. Respondents Sales answered alleging

that it was not possible to fulfill the order of the Supreme Court because the women
had never been under his control, because they were at liberty in the Province of
Davao, and because they had married or signed contracts as laborers. Respondent
Yigo answered alleging that he did not have any of the women under his control
and that therefore it was impossible for him to obey the mandate. The court, after due
deliberation, on December 10, 1918, promulgated a second order, which related that
the respondents had not complied with the original order to the satisfaction of the
court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann,
Sales, and Yigo on January 13, 1919, unless the women should, in written
statements voluntarily made before the judge of first instance of Davao or the clerk
of that court, renounce the right, or unless the respondents should demonstrate some
other legal motives that made compliance impossible. It was further stated that the
question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the women,
of certain detectives and policemen, and of the provincial governor of Davao, was
taken before the clerk of the Supreme Court sitting as commissioner and the clerk of
the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had
returned to the city through their own efforts and eight others who had been brought
to Manila by the respondents. Attorneys for the respondents, by their returns, once
again recounted the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the respondents,
through their representatives and agents, had succeeded in bringing from Davao with
their consent eight women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila, transportation fee, renounced
the right through sworn statements; that fifty-nine had already returned to Manila by
other means, and that despite all efforts to find them twenty-six could not be located.
Both counsel for petitioners and the city fiscal were permitted to submit memoranda.
The first formally asked the court to find Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando
Ordax, members of the police force of the city of Manila, Feliciano Yigo, an
hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal
requested that the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of
habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and seventy
women were isolated from society, and then at night, without their consent and

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without any opportunity to consult with friends or to defend their rights, were
forcibly hustled on board steamers for transportation to regions unknown. Despite
the feeble attempt to prove that the women left voluntarily and gladly, that such was
not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the
shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible
to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By authority
of what law did the Mayor and the Chief of Police presume to act in deporting by
duress these persons from Manila to another distant locality within the Philippine
Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an
Act of congress. The Governor-General can order the eviction of undesirable aliens
after a hearing from the Islands. Act No. 519 of the Philippine Commission and
section 733 of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who is a common
prostitute. Act No. 899 authorizes the return of any citizen of the United States, who
may have been convicted of vagrancy, to the homeland. New York and other States
have 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 quarantine, or place a leprous person in
the Culion leper colony, it 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 the Mayor of
the city of Manila or the chief of police of that city to force citizens of the Philippine
Islands and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens to change their domicile from Manila to another
locality. On the contrary, Philippine penal law specifically punishes any public
officer who, not being expressly authorized by law or regulation, compels any person
to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so
important as to be found in the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of 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 Islands, even
the President of the United States, who has often been said to exercise more power
than any king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts within a
sphere of delegated powers. If the mayor and the chief of police could, at their mere
behest or even for the most praiseworthy of motives, render the liberty of the citizen
so insecure, then the presidents and chiefs of police of one thousand other

municipalities of the Philippines have the same privilege. If these officials can take
to themselves such power, then any other official can do the same. And if any official
can exercise the power, then all persons would have just as much right to do so. And
if a prostitute could be sent against her wishes and under no law from one locality to
another within the country, then officialdom can hold the same club over the head of
any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman shall
be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs,
or be outlawed, or 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 the land. We
will sell to no man, we will not deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, 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. "The law," said
Justice Miller, delivering the opinion of the Supreme Court of the United States, "is
the only supreme power in our system of government, and every man who by
accepting office participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.)
"The very idea," said Justice Matthews of the same high tribunal in another case,
"that one man may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will of another, seems to
be intolerable in any country where freedom prevails, as being the essence of slavery
itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts should permit a
government of men or a government of laws to be established in the Philippine
Islands.
What are the remedies of the unhappy victims of official oppression? The remedies
of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may
recoup money damages. It may still rest with the parties in interest to pursue such an
action, but it was never intended effectively and promptly to meet any such situation
as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:
Any public officer not thereunto authorized by law or by regulations of a general
character in force in the Philippines who shall banish any person to a place more than
two hundred kilometers distant from his domicile, except it be by virtue of the

97

judgment of a court, shall be punished by a fine of not less than three hundred and
twenty-five and not more than three thousand two hundred and fifty pesetas.
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 suffer the penalty of destierro and a fine of not less
than six hundred and twenty-five and not more than six thousand two hundred and
fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting
officers find that any public officer has violated this provision of law, these
prosecutors will institute and press a criminal prosecution just as vigorously as they
have defended the same official in this action. Nevertheless, that the act may be a
crime and that the persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case which will later be
referred to "It would be a monstrous anomaly in the law if to an application by
one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer
that the confinement was a crime, and therefore might be continued indefinitely until
the guilty party was tried and punished therefor by the slow process of criminal
procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas
corpus was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal
freedom. Any further rights of the parties are left untouched by decision on the writ,
whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three
specific objections to its issuance in this instance. The fiscal has argued (l) that there
is a defect in parties petitioners, (2) that the Supreme Court should not a assume
jurisdiction, and (3) that the person in question are not restrained of their liberty by
respondents. It was finally suggested that the jurisdiction of the Mayor and the chief
of police of the city of Manila only extends to the city limits and that perforce they
could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were
relatives and friends of the deportees. The way the expulsion was conducted by the
city officials made it impossible for the women to sign a petition for habeas corpus.
It was consequently proper for the writ to be submitted by persons in their behalf.
(Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law,
in its zealous regard for personal liberty, even makes it the duty of a court or judge to
grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in
court.

The fiscal next contended that the writ should have been asked for in the Court of
First Instance of Davao or should have been made returnable before that court. It is a
general rule of good practice 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 of habeas corpus may be
granted by the Supreme Court or any judge thereof enforcible anywhere in the
Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or
before an inferior court rests in the discretion of the Supreme Court and is dependent
on the particular circumstances. In this instance it was not shown that the Court of
First Instance of Davao was in session, or that the women had any means by which
to advance their plea before that court. On the other hand, it was shown that the
petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts
of the Islands; it was shown that the women might still be imprisoned or restrained of
their liberty; and it was shown that if the writ was to accomplish its purpose, it must
be taken cognizance of and decided immediately by the appellate court. The failure
of the superior court to consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult 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 is claimed, were free in Davao, and the jurisdiction
of the mayor and the chief of police did not extend beyond the city limits. At first
blush, this is a tenable position. On closer examination, acceptance of such dictum is
found to be perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of
liberty. The essential object and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who
deposited them in a distant region, deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned. Placed in Davao without either
money or personal belongings, they were prevented from exercising the liberty of
going when and where they pleased. The restraint of liberty which began in Manila
continued until the aggrieved parties were returned to Manila and released or until
they freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The
chief executive of any municipality in the Philippines could forcibly and illegally
take a private citizen and place him beyond the boundaries of the municipality, and
then, when called upon to defend his official action, could calmly fold his hands and

98

claim that the person was under no restraint and that he, the official, had no
jurisdiction over this other municipality. We believe the true principle should be that,
if the respondent is within the jurisdiction of the court and has it in his power to obey
the order 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 application for the writ is no reason
why the writ should not issue. If the mayor and the chief of police, acting under no
authority of law, could deport these women from the city of Manila to Davao, the
same officials must necessarily have the same means to return them from Davao to
Manila. The respondents, within the reach of process, may not be permitted to
restrain a fellow citizen of her liberty by forcing her to change her domicile and to
avow the act with impunity in the courts, while the person who has lost her birthright
of liberty has no effective recourse. The great writ of liberty may not thus be easily
evaded.
It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities
fails to reveal any analogous case. Certain decisions of respectable courts are
however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date
as to whether or not a writ of habeas corpus would issue from the Supreme Court to a
person within the jurisdiction of the State to bring into the State a minor child under
guardianship in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time was notable. It
was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided. Campbell, J., with
whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one
of the most distinguished American judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell
was predicated to a large extent on his conception of the English decisions, and
since, as will hereafter appear, the English courts have taken a contrary view, only
the following eloquent passages from the opinion of Justice Cooley are quoted:
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 us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and
a half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech
on the petition of right that "Magna Charta was such a fellow that he will have no
sovereign," and after the extension of its benefits and securities by the petition of
right, bill of rights and habeas corpus acts, it should now be discovered that evasion
of that great clause for the protection of personal liberty, which is the life and soul of

the whole instrument, is so easy as is claimed here. If it is so, it is important that it be


determined without delay, that the legislature may apply the proper remedy, as I can
not doubt they would, on the subject being brought to their notice. . . .
The second proposition that the statutory provisions are confined to the case of
imprisonment within the state seems to me to be based upon a misconception as
to the source of our jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this writ from the statute.
Statutes were not passed to give the right, but to compel the observance of rights
which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ
is, that it is directed to and served upon, not the person confined, but his jailor. It
does not reach the former except through the latter. The officer or person who serves
it does not unbar the prison doors, and set the prisoner free, but the court relieves
him by compelling the oppressor to release his constraint. The whole force of the
writ is spent upon the respondent, and if he fails to obey it, the means to be resorted
to for the purposes of compulsion are fine and imprisonment. This is the ordinary
mode of affording relief, and if any other means are resorted to, they are only
auxiliary to those which are usual. The place of confinement is, therefore, not
important to the relief, if the guilty party is within 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
state, except as greater distance may affect it. The important question is, where the
power of control exercised? And I am aware of no other remedy. (In the matter of
Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other
courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo.,
117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a child had
been taken out of English by the respondent. A writ of habeas corpus was issued by
the Queen's Bench Division upon the application of the mother and her husband
directing the defendant to produce the child. The judge at chambers gave defendant
until a certain date to produce the child, but he did not do so. His return stated that
the child before the issuance of the 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, through Lord
Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That
writ commanded the defendant to have the body of the child before a judge in
chambers at the Royal Courts of Justice immediately after the receipt of the writ,

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together with the cause of her being taken and detained. That is a command to bring
the child before the judge and must be obeyed, unless some lawful reason can be
shown to excuse the nonproduction of the child. If it could be shown that by reason
of his having lawfully parted with the possession of the child before the issuing of
the writ, the defendant had no longer power to produce the child, that might be an
answer; but in the absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not obeying the writ without
lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was done at
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 issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See
also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N.
S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was
directed to the defendant to have before the circuit court of the District of Columbia
three colored persons, with 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 District of
Columbia before the service of the writ of habeas corpus, and that they were then
beyond his control and out of his custody. The evidence tended to show that Davis
had removed the negroes because he suspected they would apply for a writ of habeas
corpus. The court held the return to be evasive and insufficient, and that Davis was
bound to produce the negroes, and Davis being present in court, and refusing to
produce them, ordered that he be committed to the custody of the marshall until he
should produce the negroes, or be otherwise discharged in due course of law. The
court afterwards ordered that Davis be released upon the production of two of the
negroes, for one of the negroes had run away and been lodged in jail in Maryland.
Davis produced the two negroes on the last day of the term. (United States vs. Davis
[1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly
[1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered
by the respondents constituted a legitimate bar to the granting of the writ of habeas
corpus.
There remains to be considered whether the respondent complied with the two orders
of the Supreme Court awarding the writ of habeas corpus, and if it be found that they
did not, whether the contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco
Sales, and Feliciano Yigo to present the persons named in the writ before the court

on December 2, 1918. The order was dated November 4, 1918. The respondents
were thus 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 provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief,
there were then in Davao women who desired to return to Manila, but who should
not be permitted to do so because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought before the court on
the day named.
For the respondents to have fulfilled the court's order, three 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 infirmity those persons could not safely be brought before the court; or
(3) they could have presented affidavits to show that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They
did not produce the bodies of the persons in whose behalf the writ was granted; they
did not show impossibility of performance; and they did not present writings that
waived the right to be present by those interested. Instead a few stereotyped
affidavits purporting to show that the women were contended with their life in
Davao, some of which have since been repudiated by the signers, were appended to
the return. That through ordinary diligence a considerable number of the women, at
least sixty, could have been brought back to Manila is demonstrated to be found in
the municipality of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the nonproduction of the persons were far from sufficient. The, authorities cited herein
pertaining to 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 Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the
consequences; and we said that he was bound to use every effort to get the child
back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court would only
accept clear proof of an absolute impossibility by way of excuse." In other words, the
return did not show that every possible effort to produce the women was made by the
respondents. That the court forebore at this time to take drastic action was because it
did not wish to see presented to the public gaze the spectacle of a clash between
executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.

100

In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding
up the women, and a steamer with free transportation to Manila was provided. While
charges and counter-charges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with
our mandate, we come to conclude that there is a substantial compliance with it. Our
finding to this effect may be influenced somewhat by our sincere desire to see this
unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it
should receive an executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of separate habeas corpus
proceedings.
Since the writ has already been granted, and since we find a substantial compliance
with it, nothing further in this connection remains to be done.
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 Ordax, members of the police force of the city of
Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yigo, an
hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on 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 Yigo appears to have been drawn into the case through a misconstruction
by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
Case Digest: People vs Nazario
Facts:

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 countermotion 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 ordered the police to accomplish the same, who
made arrangements for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the return of the unfortunate women
to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard
for the writ of habeas corpus issued by the court was only tardily and reluctantly
acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil
Procedure, which relates to the penalty for disobeying the writ, and in pursuance
thereof to require respondent Lukban to 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 as for a contempt. Some members of the court are inclined to this stern
view. It would also be possible to find that since respondent Lukban did comply
substantially with the second order of the court, he has purged his contempt of the
first order. Some members of the court are inclined to this merciful view. Between
the two extremes appears to lie the correct finding. The failure of respondent Lukban
to obey the first mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be considered
only as extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive such an amount is P100.
In resume as before stated, no further action on the writ of habeas corpus is
necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz
are found not to be in contempt of court. Respondent Lukban is found in contempt of
court and shall pay into the office of the clerk of the Supreme Court within five days
the sum of one hundred pesos (P100). The motion 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.
In concluding this tedious and disagreeable task, may we not be permitted to express
the hope that this decision may serve to bulwark the fortifications of an orderly
government of laws and to protect individual liberty from illegal encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.

101

Eusebio Nazario was charged in violation of refusal and failure to pay his municipal
taxes amounting to Php 362.62 because of his fishpond operation provided under
Ordinance 4, Series of 1955, as amended. He is a resident of Sta. Mesa Manila and
just leases a fishpond located at Pagbilao, Quezon with the Philippine Fisheries
Commission. The years in question of failure to pay was for 1964, 1965, and 1966.
Nazario did not pay because he was not sure if he was covered under the ordinance.
He was found guilty thus this petition.
Issues:
1. Whether or not Ordinance 4, Series of 1955, as amended null and void for being
ambiguous and uncertain
2. Whether or not the ordinance was unconstitutional for being ex post facto
SUPREME COURT
Manila
EN BANC
G.R. No. L-44143 August 31, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
EUSEBIO NAZARIO, accused-appellant.

Held:
1. No, the coverage of the ordinance covers him as the actual operator of the
fishpond thus he comes with the term Manager. He was the one who spent money
in developing and maintaining it, so despite only leasing it from the national
government, the latter does not get any profit as it goes only to Nazario. The dates of
payment are also clearly stated Beginnin and taking effect from 1964 if the fishpond
started operating in 1964.
2. No, it is not ex post facto. Ordinance 4 was enacted in 1955 so it cant be that the
amendment under Ordinance 12 is being made to apply retroactively. Also, the act of
non-payment has been made punishable since 1955 so it means Ordinance 12 is not
imposing a retroactive penalty
The appeal is DISMISSED with cost against the appellant.
That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the owner and operator of a fishpond situated in the
barrio of Pinagbayanan, of said municipality, did then and there willfully, unlawfully
and feloniously refuse and fail to pay the municipal taxes in the total amount of
THREE HUNDRED SIXTY TWO PESOS AND SIXTY TWO CENTAVOS
(P362.62), required of him as fishpond operator as provided for under Ordinance No.
4, series of 1955, as amended, inspite of repeated demands made upon him by the
Municipal Treasurer of Pagbilao, Quezon, to pay the same.
Contrary to law.

The Solicitor General for plaintiff-appellee.


For the prosecution the following witnesses testified in substance as follows;
Teofilo Ragodon for accused-appellant.
MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez,
Quezon
SARMIENTO, J.:
The petitioner was charged with violation of certain municipal ordinances of the
municipal council of Pagbilao, in Quezon province. By way of confession and
avoidance, the petitioner would admit having committed the acts charged but would
claim that the ordinances are unconstitutional, or, assuming their constitutionality,
that they do not apply to him in any event.
The facts are not disputed:
This defendant is charged of the crime of Violation of Municipal Ordinance in an
information filed by the provincial Fiscal, dated October 9, 1968, as follows:

In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused as


I worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at
Pinagbayanan, Pagbilao, Quezon. I worked in the clearing of the fishpond, the
construction of the dikes and the catching of fish.
On cross-examination, this witness declared:
I worked with the accused up to March 1964.
NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of
Pinagbayanan, Pagbilao, Quezon

102

I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know the
accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao, Quezon.
He still operates the fishpond up to the present and I know this fact as I am the barrio
captain of Pinagbayanan.
On cross-examination, this witness declared:
I came to know the accused when he first operated his fishpond since 1959.
On re-direct examination, this witness declared:
I was present during the catching of fish in 1967 and the accused was there.
On re-cross examination, this witness declared:
I do not remember the month in 1962 when the accused caught fish.
RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon,
married
As Municipal Treasurer I am in charge of tax collection. I know the accused even
before I was Municipal Treasurer of Pagbilao. I have written the accused a letter
asking him to pay his taxes (Exhibit B). Said letter was received by the accused as
per registry return receipt, Exhibit B-1. The letter demanded for payment of P362.00,
more or less, by way of taxes which he did not pay up to the present. The former
Treasurer, Ceferino Caparros, also wrote a letter of demand to the accused (Exhibit
C). On June 28, 1967, I sent a letter to the Fishery Commission (Exhibit D),
requesting information if accused paid taxes with that office. The Commission sent
me a certificate (Exhibits D-1, D-2 & D-3). The accused had a fishpond lease
agreement. The taxes unpaid were for the years 1964, 1965 and 1966.
On cross-examination, this witness declared:
I have demanded the taxes for 38.10 hectares.

For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner
and general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old
Sta. Mesa, Sampaloc, Manila, declared in substance as follows:
I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at
Manila or at San Juan. In 1964, 1965 and 1966, I was living in Manila and my
business is in Manila and my family lives at Manila. I never resided at Pagbilao,
Quezon. I do not own a house at Pagbilao. I am a lessee of a fishpond located at
Pagbilao, Quezon, and I have a lease agreement to that effect with the Philippine
Fisheries Commission marked as Exhibit 1. In 1964, 1965 and 1966, the contract of
lease, Exhibit 1, was still existing and enforceable. The Ordinances Nos. 4, 15 and
12, series of 1955, 1965 and 1966, were translated into English by the Institute of
National Language to better understand the ordinances. There were exchange of
letters between me and the Municipal Treasurer of Pagbilao regarding the payment
of the taxes on my leased fishpond situated at Pagbilao. There was a letter of demand
for the payment of the taxes by the treasurer (Exhibit 3) which I received by mail at
my residence at Manila. I answered the letter of demand, Exhibit 3, with Exhibit 3A. I requested an inspection of my fishpond to determine its condition as it was not
then in operation. The Municipal Treasurer Alvarez went there once in 1967 and he
found that it was destroyed by the typhoon and there were pictures taken marked as
Exhibits 4, 4-A, 4-B and 4C. I received another letter of demand, Exhibit 5, and I
answered the same (Exhibit 5-A). I copied my reference quoted in Exhibit 5-A from
Administrative Order No. 6, Exhibit 6. I received another letter of demand from
Tomas Ornedo, Acting Municipal Treasurer of Pagbilao, dated February 16, 1966,
Exhibit 7, and I answered the same with the letter marked as Exhibit 7-A, dated
February 26, 1966. I received another letter of demand from Treasurer Alvarez of
Pagbilao, Exhibit 8, and I answered the same (Exhibit 8-A). In 1964, I went to
Treasurer Caparros to ask for an application for license tax and he said none and he
told me just to pay my taxes. I did not pay because up to now I do not know whether
I am covered by the Ordinance or not. The letters of demand asked me to pay
different amounts for taxes for the fishpond. Because under Sec. 2309 of the Revised
Administrative Code, municipal taxes lapse if not paid and they are collecting on a
lapsed ordinance. Because under the Tax Code, fishermen are exempted from
percentage tax and privilege tax. There is no law empowering the municipality to
pass ordinance taxing fishpond operators.

On question of the court, this witness declared:


What I was collecting from the accused is the fee on fishpond operation, not rental.
The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C,
D, D-1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except Exhibits
D, D-1, D-2 and D-3 which were not admitted for being immaterial.

The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4C, 5, 5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted by the
court.
From their evidence the prosecution would want to show to the court that the
accused, as lessee or operator of a fishpond in the municipality of Pagbilao, refused,
and still refuses, to pay the municipal taxes for the years 1964, 1965 and 1966, in
violation of Municipal Ordinance No. 4, series of 1955, as amended by Municipal

103

Ordinance No. 15, series of 1965, and finally amended by Municipal Ordinance No.
12, series of 1966.
On the other hand, the accused, by his evidence, tends to show to the court that the
taxes sought to be collected have already lapsed and that there is no law empowering
municipalities to pass ordinances taxing fishpond operators. The defense, by their
evidence, tried to show further that, as lessee of a forest land to be converted into a
fishpond, he is not covered by said municipal ordinances; and finally that the
accused should not be taxed as fishpond operator because there is no fishpond yet
being operated by him, considering that the supposed fishpond was under
construction during the period covered by the taxes sought to be collected.
Finally, the defendant claims that the ordinance in question is ultra vires as it is
outside of the power of the municipal council of Pagbilao, Quezon, to enact; and that
the defendant claims that the ordinance in question is ambiguous and uncertain.
There is no question from the evidences presented that the accused is a lessee of a
parcel of forest land, with an area of 27.1998 hectares, for fishpond purposes, under
Fishpond Lease Agreement No. 1066, entered into by the accused and the
government, through the Secretary of Agriculture and Natural Resources on August
21, 1959.
There is no question from the evidences presented that the 27.1998 hectares of land
leased by the defendant from the government for fishpond purposes was actually
converted into fishpond and used as such, and therefore defendant is an operator of a
fishpond within the purview of the ordinance in question. 1
The trial Court 2 returned a verdict of guilty and disposed as follows:
VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused
guilty beyond reasonable doubt of the crime of violation of Municipal Ordinance No.
4, series of 1955, as amended by Ordinance No. 15, series of 1965 and further
amended by Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao,
Quezon; and hereby sentences him to pay a fine of P50.00, with subsidiary
imprisonment in case of insolvency at the rate of P8.00 a day, and to pay the costs of
this proceeding.
SO ORDERED. 3
In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges
that:

THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO.


4, SERIES OF 1955, AS AMENDED BY ORDINANCE NO. 15, SERIES OF 1965,
AND AS FURTHER AMENDED BY ORDINANCE NO. 12, SERIES OF 1966, OF
THE MUNICIPALITY OF PAGBILAO, QUEZON, IS NULL AND VOID FOR
BEING AMBIGUOUS AND UNCERTAIN.
II.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN
QUESTION, AS AMENDED, IS UNCONSTITUTIONAL FOR BEING EX POST
FACTO.
III.
THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN
QUESTION COVERS ONLY OWNERS OR OVERSEER OF FISHPONDS OF
PRIVATE OWNERSHIP AND NOT TO LESSEES OF PUBLIC LANDS.
IV.
THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED
ORDINANCE, EVEN IF VALID, CANNOT BE ENFORCED BEYOND THE
TERRITORIAL LIMITS OF PAGBILAO AND DOES NOT COVER NONRESIDENTS. 4
The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15,
series of 1965, and Ordinance No. 12, series of 1966, of the Municipal Council of
Pagbilao. Insofar as pertinent to this appeal, the salient portions thereof are
hereinbelow quoted:
Section 1. Any owner or manager of fishponds in places within the territorial limits
of Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per hectare of
fishpond on part thereof per annum. 5
xxx xxx xxx
Sec. l (a). For the convenience of those who have or owners or managers of
fishponds within the territorial limits of this municipality, the date of payment of
municipal tax relative thereto, shall begin after the lapse of three (3) years starting
from the date said fishpond is approved by the Bureau of Fisheries. 6
xxx xxx xxx

I.

104

Section 1. Any owner or manager of fishponds in places within the territorial limits
of Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any
fraction thereof per annum beginning and taking effect from the year 1964, if the
fishpond started operating before the year 1964. 7
The first objection refers to the ordinances being allegedly "ambiguous and
uncertain." 8 The petitioner contends that being a mere lessee of the fishpond, he is
not covered since the said ordinances speak of "owner or manager." He likewise
maintains that they are vague insofar as they reckon the date of payment: Whereas
Ordinance No. 4 provides that parties shall commence payment "after the lapse of
three (3) years starting from the date said fishpond is approved by the Bureau of
Fisheries." 9 Ordinance No. 12 states that liability for the tax accrues "beginning and
taking effect from the year 1964 if the fishpond started operating before the year
1964." 10
As a rule, a statute or act may be said to be vague when it lacks comprehensible
standards that men "of common intelligence must necessarily guess at its meaning
and differ as to its application." 11 It is repugnant to the Constitution in two respects:
(1) it violates due process for failure to accord persons, especially the parties
targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.
But the act must be utterly vague on its face, that is to say, it cannot be clarified by
either a saving clause or by construction. Thus, in Coates v. City of Cincinnati, 12
the U.S. Supreme Court struck down an ordinance that had made it illegal for "three
or more persons to assemble on any sidewalk and there conduct themselves in a
manner annoying to persons passing by." 13 Clearly, the ordinance imposed no
standard at all "because one may never know in advance what 'annoys some people
but does not annoy others.' " 14
Coates highlights what has been referred to as a "perfectly vague" 15 act whose
obscurity is evident on its face. It is to be distinguished, however, from legislation
couched in imprecise language but which nonetheless specifies a standard though
defectively phrased in which case, it may be "saved" by proper construction.
It must further be distinguished from statutes that are apparently ambiguous yet
fairly applicable to certain types of activities. In that event, such statutes may not be
challenged whenever directed against such activities. In Parker v. Levy, 16 a
prosecution originally under the U.S. Uniform Code of Military Justice (prohibiting,
specifically, "conduct unbecoming an officer and gentleman"), the defendant, an
army officer who had urged his men not to go to Vietnam and called the Special
Forces trained to fight there thieves and murderers, was not allowed to invoke the
void for vagueness doctrine on the premise that accepted military interpretation and

practice had provided enough standards, and consequently, a fair notice that his
conduct was impermissible.
It is interesting that in Gonzales v. Commission on Elections, 17 a divided Court
sustained an act of Congress (Republic Act No. 4880 penalizing "the too early
nomination of candidates" 18 limiting the election campaign period, and prohibiting
"partisan political activities"), amid challenges of vagueness and overbreadth on the
ground that the law had included an "enumeration of the acts deemed included in the
terms 'election campaign' or 'partisan political activity" 19 that would supply the
standards. "As thus limited, the objection that may be raised as to vagueness has
been minimized, if not totally set at rest." 20 In his opinion, however, Justice
Sanchez would stress that the conduct sought to be prohibited "is not clearly defined
at all." 21 "As worded in R.A 4880, prohibited discussion could cover the entire
spectrum of expression relating to candidates and political parties." 22 He was
unimpressed with the "restrictions" Fernando's opinion had relied on: " 'Simple
expressions of opinions and thoughts concerning the election' and expression of
'views on current political problems or issues' leave the reader conjecture, to
guesswork, upon the extent of protection offered, be it as to the nature of the
utterance ('simple expressions of opinion and thoughts') or the subject of the
utterance ('current political problems or issues')." 23
The Court likewise had occasion to apply the "balancing-of-interests" test, 24 insofar
as the statute's ban on early nomination of candidates was concerned: "The rational
connection between the prohibition of Section 50-A and its object, the indirect and
modest scope of its restriction on the rights of speech and assembly, and the
embracing public interest which Congress has found in the moderation of partisan
political activity, lead us to the conclusion that the statute may stand consistently
with and does not offend the Constitution." 25 In that case, Castro would have the
balance achieved in favor of State authority at the "expense" of individual liberties.
In the United States, which had ample impact on Castro's separate opinion, the
balancing test finds a close kin, referred to as the "less restrictive alternative " 26
doctrine, under which the court searches for alternatives available to the Government
outside of statutory limits, or for "less drastic means" 27 open to the State, that
would render the statute unnecessary. In United States v. Robel, 28 legislation was
assailed, banning members of the (American) Communist Party from working in any
defense facility. The U.S. Supreme Court, in nullifying the statute, held that it
impaired the right of association, and that in any case, a screening process was
available to the State that would have enabled it to Identify dangerous elements
holding defense positions. 29 In that event, the balance would have been struck in
favor of individual liberties.
It should be noted that it is in free expression cases that the result is usually close. It
is said, however, that the choice of the courts is usually narrowed where the

105

controversy involves say, economic rights, 30 or as in the Levy case, military affairs,
in which less precision in analysis is required and in which the competence of the
legislature is presumed.
In no way may the ordinances at bar be said to be tainted with the vice of vagueness.
It is unmistakable from their very provisions that the appellant falls within its
coverage. As the actual operator of the fishponds, he comes within the term "
manager." He does not deny the fact that he financed the construction of the
fishponds, introduced fish fries into the fishponds, and had employed laborers to
maintain them. 31 While it appears that it is the National Government which owns
them, 32 the Government never shared in the profits they had generated. It is
therefore only logical that he shoulders the burden of tax under the said ordinances.
We agree with the trial court that the ordinances are in the character of revenue
measures 33 designed to assist the coffers of the municipality of Pagbilao. And
obviously, it cannot be the owner, the Government, on whom liability should attach,
for one thing, upon the ancient principle that the Government is immune from taxes
and for another, since it is not the Government that had been making money from the
venture.
Suffice it to say that as the actual operator of the fishponds in question, and as the
recipient of profits brought about by the business, the appellant is clearly liable for
the municipal taxes in question. He cannot say that he did not have a fair notice of
such a liability to make such ordinances vague.
Neither are the said ordinances vague as to dates of payment. There is no merit to the
claim that "the imposition of tax has to depend upon an uncertain date yet to be
determined (three years after the 'approval of the fishpond' by the Bureau of
Fisheries, and upon an uncertain event (if the fishpond started operating before
1964), also to be determined by an uncertain individual or individuals." 34
Ordinance No. 15, in making the tax payable "after the lapse of three (3) years
starting from the date said fishpond is approved by the Bureau of Fisheries," 35 is
unequivocal about the date of payment, and its amendment by Ordinance No. 12,
reckoning liability thereunder "beginning and taking effect from the year 1964 if the
fishpond started operating before the year 1964 ," 36 does not give rise to any
ambiguity. In either case, the dates of payment have been definitely established. The
fact that the appellant has been allegedly uncertain about the reckoning dates as
far as his liability for the years 1964, 1965, and 1966 is concerned presents a mere
problem in computation, but it does not make the ordinances vague. In addition, the
same would have been at most a difficult piece of legislation, which is not unfamiliar
in this jurisdiction, but hardly a vague law.
As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in
operation prior thereto (Ordinance No. 12), and for new fishponds, three years after

their approval by the Bureau of Fisheries (Ordinance No. 15). This is so since the
amendatory act (Ordinance No. 12) merely granted amnesty unto old, delinquent
fishpond operators. It did not repeal its mother ordinances (Nos. 4 and 15). With
respect to new operators, Ordinance No. 15 should still prevail.
To the Court, the ordinances in question set forth enough standards that clarify
imagined ambiguities. While such standards are not apparent from the face thereof,
they are visible from the intent of the said ordinances.
The next inquiry is whether or not they can be said to be ex post facto measures. The
appellant argues that they are: "Amendment No. 12 passed on September 19, 1966,
clearly provides that the payment of the imposed tax shall "beginning and taking
effect from the year 1964, if the fishpond started operating before the year 1964.' In
other words, it penalizes acts or events occurring before its passage, that is to say,
1964 and even prior thereto." 37
The Court finds no merit in this contention. As the Solicitor General notes,
"Municipal Ordinance No. 4 was passed on May 14, 1955. 38 Hence, it cannot be
said that the amendment (under Ordinance No. 12) is being made to apply
retroactively (to 1964) since the reckoning period is 1955 (date of enactment).
Essentially, Ordinances Nos. 12 and 15 are in the nature of curative measures
intended to facilitate and enhance the collection of revenues the originally act,
Ordinance No. 4, had prescribed. 39 Moreover, the act (of non-payment of the tax),
had been, since 1955, made punishable, and it cannot be said that Ordinance No. 12
imposes a retroactive penalty. As we have noted, it operates to grant amnesty to
operators who had been delinquent between 1955 and 1964. It does not mete out a
penalty, much less, a retrospective one.
The appellant assails, finally, the power of the municipal council of Pagbilao to tax
"public forest land." 40 In Golden Ribbon Lumber Co., Inc. v. City of Butuan 41 we
held that local governments' taxing power does not extend to forest products or
concessions under Republic Act No. 2264, the Local Autonomy Act then in force.
(Republic Act No. 2264 likewise prohibited municipalities from imposing percentage
taxes on sales.)
First of all, the tax in question is not a tax on property, although the rate thereof is
based on the area of fishponds ("P3.00 per hectare" 42). Secondly, fishponds are not
forest lands, although we have held them to the agricultural lands. 43 By definition,
"forest" is "a large tract of land covered with a natural growth of trees and
underbush; a large wood." 44 (Accordingly, even if the challenged taxes were
directed on the fishponds, they would not have been taxes on forest products.)
They are, more accurately, privilege taxes on the business of fishpond maintenance.
They are not charged against sales, which would have offended the doctrine

106

enshrined by Golden Ribbon Lumber, 45 but rather on occupation, which is allowed


under Republic Act No. 2264. 46 They are what have been classified as fixed annual
taxes and this is obvious from the ordinances themselves.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Cortes,
Grio-Aquino and Medialdea, JJ., concur.

There is, then, no merit in the last objection.

Melencio-Herrera, and Regalado, J., took no part.

WHEREFORE, the appeal is DISMISSED. Costs against the appellant.


City of Manila vs. Laguio

Gancayco, J., is on leave.


W/N there was a denial of equal protection under the law

G.R. No. 118127, April 12, 2005

HELD:

Due Process
Equal Protection
Requisites of a Valid Exercise of Police Power by LGU
FACTS:
The private respondent, Malate Tourist Development Corporation (MTOC) is a
corporation engaged in the business of operating hotels, motels, hostels, and lodgin
houses. It built and opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the Department of Tourism as a hotel.
March 30, 1993 - City Mayor Alfredo S. Lim approved an ordinance enacted which
prohibited certain forms of amusement, entertainment, services and facilities where
women are used as tools in entertainment and which tend to disturb the community,
annoy the inhabitants, and adversely affect the social and moral welfare of the
community. The Ordinance also provided that in case of violation and conviction, the
premises of the erring establishment shall be closed and padlocked permanently.
June 28, 1993 - MTOC filed a Petition with the lower court, praying that the
Ordinance, insofar as it included motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional for several reasons but
mainly because it is not a valid exercise of police power and it constitutes a denial of
equal protection under the law.
Judge Laguio ruled for the petitioners. The case was elevated to the Supreme Court.
ISSUES:
W/N the City of Manila validly exercised police power
[G.R. No. 118127. April 12, 2005]

The Ordinance infringes the due process clause since the requisites for a valid
exercise of police power are not met. The prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of
the community; it will not in itself eradicate the alluded social ills fo prostitution,
adultery, fornication nor will it arrest the spread of sexual diseases in Manila. It is
baseless and insupportable to bring within that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns. These are lawful pursuits which are not per se offensive
to the moral welfare of the community.
Sexual immorality, being a human frailty, may take place in the most innocent
places.... Every house, building, park, curb, street, or even vehicles for that matter
will not be exempt from the prohibition. Simply because there are no "pure" places
where there are impure men.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men.
The Ordinance violates equal protection clause and is repugnant to general laws; it is
ultra vires. The Local Government Code merely empowers local government units to
regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
All considered, the Ordinance invades fundamental personal and property rights adn
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes
statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently
detailed and explicit that abuses may attend the enforcement of its sanctions. And not
to be forgotten, the City Council unde the Code had no power to enact the Ordinance
and is therefore ultra vires null and void.
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila,
HON. JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila

107

and Presiding Officer of the City Council of Manila, HON. ERNESTO A. NIEVA,
HON. GONZALO P. GONZALES, HON. AVELINO S. CAILIAN, HON.
ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U.
LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S.
MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO,
HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON.
MANUEL M. ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C.
ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO,
HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR.,
HON. ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A.
TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D. HIZON, HON.
FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO P.
DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R.
CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE,
JR., HON. MA. LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON.
ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON. JOCELYN B.
DAWIS, in their capacity as councilors of the City of Manila, petitioners, vs. HON.
PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE
TOURIST DEVELOPMENT CORPORATION, respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is
less immoral than if performed by someone else, who would be well-intentioned in
his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Courts commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to make the
hammer fall, and heavily in the words of Justice Laurel, and uphold the

constitutional guarantees when faced with laws that, though not lacking in zeal to
promote morality, nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition[1] under Rule 45 (then Rule 42) of the Revised
Rules on Civil Procedure seeking the reversal of the Decision[2] in Civil Case No.
93-66511 of the Regional Trial Court (RTC) of Manila, Branch 18 (lower court),[3]
is the validity of Ordinance No. 7783 (the Ordinance) of the City of Manila.[4]
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and lodging
houses.[5] It built and opened Victoria Court in Malate which was licensed as a
motel although duly accredited with the Department of Tourism as a hotel.[6] On 28
June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order[7] (RTC Petition) with
the lower court impleading as defendants, herein petitioners City of Manila, Hon.
Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council
of Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes
motels and inns as among its prohibited establishments, be declared invalid and
unconstitutional.[8]
Enacted by the City Council[9] on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993, the said Ordinance is entitled
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE
AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR
OTHER PURPOSES.[10]
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary
notwithstanding, no person, partnership, corporation or entity shall, in the ErmitaMalate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in
the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to
P.D. 499 be allowed or authorized to contract and engage in, any business providing
certain forms of amusement, entertainment, services and facilities where women are
used as tools in entertainment and which tend to disturb the community, annoy the
inhabitants, and adversely affect the social and moral welfare of the community, such
as but not limited to:
1. Sauna Parlors

108

6. Restaurants
2. Massage Parlors
7. Coffee shops
3. Karaoke Bars
8. Flower shops
4. Beerhouses
5. Night Clubs
6. Day Clubs

9. Music lounge and sing-along restaurants, with well-defined activities for


wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of
cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.

7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said
officials are prohibited from issuing permits, temporary or otherwise, or from
granting licenses and accepting payments for the operation of business enumerated in
the preceding section.

11. Businesses allowable within the law and medium intensity districts as provided
for in the zoning ordinances for Metropolitan Manila, except new warehouse or
open-storage depot, dock or yard, motor repair shop, gasoline service station, light
industry with any machinery, or funeral establishments.
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction,
be punished by imprisonment of one (1) year or fine of FIVE THOUSAND
(P5,000.00) PESOS, or both, at the discretion of the Court, PROVIDED, that in case
of juridical person, the President, the General Manager, or person-in-charge of
operation shall be liable thereof; PROVIDED FURTHER, that in case of subsequent
violation and conviction, the premises of the erring establishment shall be closed and
padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from
the date of approval of this ordinance within which to wind up business operations or
to transfer to any place outside of the Ermita-Malate area or convert said businesses
to other kinds of business allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops

Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly
included in its enumeration of prohibited establishments, motels and inns such as
MTDCs Victoria Court considering that these were not establishments for
amusement or entertainment and they were not services or facilities for
entertainment, nor did they use women as tools for entertainment, and neither did
they disturb the community, annoy the inhabitants or adversely affect the social and
moral welfare of the community.[11]

3. Handicrafts display centers


4. Art galleries
5. Records and music shops

MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of
motels as Section 458 (a) 4 (iv)[12] of the Local Government Code of 1991 (the
Code) grants to the City Council only the power to regulate the establishment,
operation and maintenance of hotels, motels, inns, pension houses, lodging houses

109

and other similar establishments; (2) The Ordinance is void as it is violative of


Presidential Decree (P.D.) No. 499[13] which specifically declared portions of the
Ermita-Malate area as a commercial zone with certain restrictions; (3) The
Ordinance does not constitute a proper exercise of police power as the compulsory
closure of the motel business has no reasonable relation to the legitimate municipal
interests sought to be protected; (4) The Ordinance constitutes an ex post facto law
by punishing the operation of Victoria Court which was a legitimate business prior to
its enactment; (5) The Ordinance violates MTDCs constitutional rights in that: (a) it
is confiscatory and constitutes an invasion of plaintiffs property rights; (b) the City
Council has no power to find as a fact that a particular thing is a nuisance per se nor
does it have the power to extrajudicially destroy it; and (6) The Ordinance constitutes
a denial of equal protection under the law as no reasonable basis exists for
prohibiting the operation of motels and inns, but not pension houses, hotels, lodging
houses or other similar establishments, and for prohibiting said business in the
Ermita-Malate area but not outside of this area.[14]

Citing Kwong Sing v. City of Manila,[17] petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to control, to
govern and to restrain places of exhibition and amusement.[18]

In their Answer[15] dated 23 July 1993, petitioners City of Manila and Lim
maintained that the City Council had the power to prohibit certain forms of
entertainment in order to protect the social and moral welfare of the community as
provided for in Section 458 (a) 4 (vii) of the Local Government Code,[16] which
reads, thus:

Section 18. Legislative powers. The Municipal Board shall have the following
legislative powers:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:

Petitioners likewise asserted that the Ordinance was enacted by the City Council of
Manila to protect the social and moral welfare of the community in conjunction with
its police power as found in Article III, Section 18(kk) of Republic Act No. 409,[19]
otherwise known as the Revised Charter of the City of Manila (Revised Charter of
Manila)[20] which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
...

...
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace,
good order, comfort, convenience, and general welfare of the city and its inhabitants,
and such others as may be necessary to carry into effect and discharge the powers
and duties conferred by this chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment, for a single offense.

....
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.

Further, the petitioners noted, the Ordinance had the presumption of validity; hence,
private respondent had the burden to prove its illegality or unconstitutionality.[21]
Petitioners also maintained that there was no inconsistency between P.D. 499 and the
Ordinance as the latter simply disauthorized certain forms of businesses and allowed
the Ermita-Malate area to remain a commercial zone.[22] The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective
in operation.[23] The Ordinance also did not infringe the equal protection clause and
cannot be denounced as class legislation as there existed substantial and real
differences between the Ermita-Malate area and other places in the City of Manila.
[24]
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued
an ex-parte temporary restraining order against the enforcement of the Ordinance.

110

[25] And on 16 July 1993, again in an intrepid gesture, he granted the writ of
preliminary injunction prayed for by MTDC.[26]
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion
of said Decision reads:[27]
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series
of 1993, of the City of Manila null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court against the defendant. No
costs.
SO ORDERED.[28]
Petitioners filed with the lower court a Notice of Appeal[29] on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law.[30]
On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling: (1) It erred in concluding that
the subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive
exercise of police power; (2) It erred in holding that the questioned Ordinance
contravenes P.D. 499[31] which allows operators of all kinds of commercial
establishments, except those specified therein; and (3) It erred in declaring the
Ordinance void and unconstitutional.[32]
In the Petition and in its Memorandum,[33] petitioners in essence repeat the
assertions they made before the lower court. They contend that the assailed
Ordinance was enacted in the exercise of the inherent and plenary power of the State
and the general welfare clause exercised by local government units provided for in
Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section 458
(a) 4 (vii) of the Code.[34] They allege that the Ordinance is a valid exercise of
police power; it does not contravene P.D. 499; and that it enjoys the presumption of
validity.[35]
In its Memorandum[36] dated 27 May 1996, private respondent maintains that the
Ordinance is ultra vires and that it is void for being repugnant to the general law. It
reiterates that the questioned Ordinance is not a valid exercise of police power; that it
is violative of due process, confiscatory and amounts to an arbitrary interference with
its lawful business; that it is violative of the equal protection clause; and that it
confers on petitioner City Mayor or any officer unregulated discretion in the
execution of the Ordinance absent rules to guide and control his actions.

This is an opportune time to express the Courts deep sentiment and tenderness for
the Ermita-Malate area being its home for several decades. A long-time resident, the
Court witnessed the areas many turn of events. It relished its glory days and endured
its days of infamy. Much as the Court harks back to the resplendent era of the Old
Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not the
fitting means to that end. The Court is of the opinion, and so holds, that the lower
court did not err in declaring the Ordinance, as it did, ultra vires and therefore null
and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence
thereof violates a constitutional provision. The prohibitions and sanctions therein
transgress the cardinal rights of persons enshrined by the Constitution. The Court is
called upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held
that for an ordinance to be valid, it must not only be within the corporate powers of
the local government unit to enact and must be passed according to the procedure
prescribed by law, it must also conform to the following substantive requirements:
(1) must not contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.[37]
Anent the first criterion, ordinances shall only be valid when they are not contrary to
the Constitution and to the laws.[38] The Ordinance must satisfy two requirements: it
must pass muster under the test of constitutionality and the test of consistency with
the prevailing laws. That ordinances should be constitutional uphold the principle of
the supremacy of the Constitution. The requirement that the enactment must not
violate existing law gives stress to the precept that local government units are able to
legislate only by virtue of their derivative legislative power, a delegation of
legislative power from the national legislature. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter.[39]
This relationship between the national legislature and the local government units has
not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. The national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.[40]
The Ordinance was passed by the City Council in the exercise of its police power, an
enactment of the City Council acting as agent of Congress. Local government units,
as agencies of the State, are endowed with police power in order to effectively
accomplish and carry out the declared objects of their creation.[41] This delegated
police power is found in Section 16 of the Code, known as the general welfare
clause, viz:

111

SECTION 16. General Welfare.Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative
bodies; in this case, the sangguniang panlungsod or the city council. The Code
empowers the legislative bodies to enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the
corporate powers of the province/city/ municipality provided under the Code.[42]
The inquiry in this Petition is concerned with the validity of the exercise of such
delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the limitation
that its exercise must be reasonable and for the public good.[43] In the case at bar,
the enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.[44]
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure
the fundamental equality before the law of women and men.[45]
SEC. 1. No person shall be deprived of life, liberty or property without due process
of law, nor shall any person be denied the equal protection of laws.[46]

Sec. 9. Private property shall not be taken for public use without just compensation.
[47]
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o person shall
be deprived of life, liberty or property without due process of law. . . .[48]
There is no controlling and precise definition of due process. It furnishes though a
standard to which governmental action should conform in order that deprivation of
life, liberty or property, in each appropriate case, be valid. This standard is aptly
described as a responsiveness to the supremacy of reason, obedience to the dictates
of justice,[49] and as such it is a limitation upon the exercise of the police power.[50]
The purpose of the guaranty is to prevent governmental encroachment against the
life, liberty and property of individuals; to secure the individual from the arbitrary
exercise of the powers of the government, unrestrained by the established principles
of private rights and distributive justice; to protect property from confiscation by
legislative enactments, from seizure, forfeiture, and destruction without a trial and
conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law.[51]
The guaranty serves as a protection against arbitrary regulation, and private
corporations and partnerships are persons within the scope of the guaranty insofar as
their property is concerned.[52]
This clause has been interpreted as imposing two separate limits on government,
usually called procedural due process and substantive due process.
Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with what kind of notice and
what form of hearing the government must provide when it takes a particular action.
[53]
Substantive due process, as that phrase connotes, asks whether the government has
an adequate reason for taking away a persons life, liberty, or property. In other
words, substantive due process looks to whether there is a sufficient justification for
the governments action.[54] Case law in the United States (U.S.) tells us that
whether there is such a justification depends very much on the level of scrutiny used.
[55] For example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a legitimate

112

government purpose. But if it is an area where strict scrutiny is used, such as for
protecting fundamental rights, then the government will meet substantive due
process only if it can prove that the law is necessary to achieve a compelling
government purpose.[56]
The police power granted to local government units must always be exercised with
utmost observance of the rights of the people to due process and equal protection of
the law. Such power cannot be exercised whimsically, arbitrarily or despotically[57]
as its exercise is subject to a qualification, limitation or restriction demanded by the
respect and regard due to the prescription of the fundamental law, particularly those
forming part of the Bill of Rights. Individual rights, it bears emphasis, may be
adversely affected only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare.[58] Due process requires the intrinsic
validity of the law in interfering with the rights of the person to his life, liberty and
property.[59]
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of constitutional
infirmity, not only must it appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon individuals.[60] It must be evident
that no other alternative for the accomplishment of the purpose less intrusive of
private rights can work. A reasonable relation must exist between the purposes of the
police measure and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.[61]
Lacking a concurrence of these two requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights[62] a violation of the due process
clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned
by the establishments in the Ermita-Malate area which are allegedly operated under
the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke
bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even
the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc.
v. City Mayor of Manila[63] had already taken judicial notice of the alarming
increase in the rate of prostitution, adultery and fornication in Manila traceable in
great part to existence of motels, which provide a necessary atmosphere for

clandestine entry, presence and exit and thus become the ideal haven for prostitutes
and thrill-seekers.[64]
The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of the Ordinance are within the scope of the City Councils police powers,
the means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication
of the communitys social ills can be achieved through means less restrictive of
private rights; it can be attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or their conversion into
businesses allowed under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of
the community; it will not in itself eradicate the alluded social ills of prostitution,
adultery, fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully prohibit,[65] it is
baseless and insupportable to bring within that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns. This is not warranted under the accepted definitions of
these terms. The enumerated establishments are lawful pursuits which are not per se
offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to
further the illegal prostitution is of no moment. We lay stress on the acrid truth that
sexual immorality, being a human frailty, may take place in the most innocent of
places that it may even take place in the substitute establishments enumerated under
Section 3 of the Ordinance. If the flawed logic of the Ordinance were to be followed,
in the remote instance that an immoral sexual act transpires in a church cloister or a
court chamber, we would behold the spectacle of the City of Manila ordering the
closure of the church or court concerned. Every house, building, park, curb, street or
even vehicles for that matter will not be exempt from the prohibition. Simply
because there are no pure places where there are impure men. Indeed, even the
Scripture and the Tradition of Christians churches continually recall the presence and
universality of sin in mans history.[66]
The problem, it needs to be pointed out, is not the establishment, which by its nature
cannot be said to be injurious to the health or comfort of the community and which

113

in itself is amoral, but the deplorable human activity that may occur within its
premises. While a motel may be used as a venue for immoral sexual activity, it
cannot for that reason alone be punished. It cannot be classified as a house of illrepute or as a nuisance per se on a mere likelihood or a naked assumption. If that
were so and if that were allowed, then the Ermita-Malate area would not only be
purged of its supposed social ills, it would be extinguished of its soul as well as
every human activity, reprehensible or not, in its every nook and cranny would be
laid bare to the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion
that it can make a moral man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of
liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those individuals desirous of
owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City of
Manila so desires to put an end to prostitution, fornication and other social ills, it can
instead impose reasonable regulations such as daily inspections of the establishments
for any violation of the conditions of their licenses or permits; it may exercise its
authority to suspend or revoke their licenses for these violations;[67] and it may even
impose increased license fees. In other words, there are other means to reasonably
accomplish the desired end.
Means employed are

It is readily apparent that the means employed by the Ordinance for the achievement
of its purposes, the governmental interference itself, infringes on the constitutional
guarantees of a persons fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include
the right to exist and the right to be free from arbitrary restraint or servitude. The
term cannot be dwarfed into mere freedom from physical restraint of the person of
the citizen, but is deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare.[68] In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he
will; to earn his livelihood by any lawful calling; and to pursue any avocation are all
deemed embraced in the concept of liberty.[69]
The U.S. Supreme Court in the case of Roth v. Board of Regents,[70] sought to
clarify the meaning of liberty. It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed
[by the Fifth and Fourteenth Amendments], the term denotes not merely freedom
from bodily restraint but also the right of the individual to contract, to engage in any
of the common occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognizedas essential to the
orderly pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of liberty must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause
includes personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, the U.S. Supreme
Court explained:

constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance
halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or
operators of the enumerated establishments are given three (3) months from the date
of approval of the Ordinance within which to wind up business operations or to
transfer to any place outside the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area. Further, it states in Section 4 that
in cases of subsequent violations of the provisions of the Ordinance, the premises of
the erring establishment shall be closed and padlocked permanently.

These matters, involving the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to
define ones own concept of existence, of meaning, of universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of personhood
where they formed under compulsion of the State.[71]
Persons desirous to own, operate and patronize the enumerated establishments under
Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motels premisesbe it

114

stressed that their consensual sexual behavior does not contravene any fundamental
state policy as contained in the Constitution.[72] Adults have a right to choose to
forge such relationships with others in the confines of their own private lives and still
retain their dignity as free persons. The liberty protected by the Constitution allows
persons the right to make this choice.[73] Their right to liberty under the due process
clause gives them the full right to engage in their conduct without intervention of the
government, as long as they do not run afoul of the law. Liberty should be the rule
and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of all freedomit is the most
comprehensive of rights and the right most valued by civilized men.[74]
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,[75] borrowing the
words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness,
his isolation, are indefeasible; indeed, they are so fundamental that they are the basis
on which his civic obligations are built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his experience is private, and the will
built out of that experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any real sense
free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the
invasion of which should be justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its identification with liberty; in
itself it is fully deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen.[76]
There is a great temptation to have an extended discussion on these civil liberties but
the Court chooses to exercise restraint and restrict itself to the issues presented when
it should. The previous pronouncements of the Court are not to be interpreted as a
license for adults to engage in criminal conduct. The reprehensibility of such conduct
is not diminished. The Court only reaffirms and guarantees their right to make this
choice. Should they be prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is their choice.
Modality employed is

In addition, the Ordinance is unreasonable and oppressive as it substantially divests


the respondent of the beneficial use of its property.[77] The Ordinance in Section 1
thereof forbids the running of the enumerated businesses in the Ermita-Malate area
and in Section 3 instructs its owners/operators to wind up business operations or to
transfer outside the area or convert said businesses into allowed businesses. An
ordinance which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as a taking
of the property without just compensation.[78] It is intrusive and violative of the
private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that private property
shall not be taken for public use without just compensation. The provision is the
most important protection of property rights in the Constitution. This is a restriction
on the general power of the government to take property. The constitutional
provision is about ensuring that the government does not confiscate the property of
some to give it to others. In part too, it is about loss spreading. If the government
takes away a persons property to benefit society, then society should pay. The
principal purpose of the guarantee is to bar the Government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.[79]
There are two different types of taking that can be identified. A possessory taking
occurs when the government confiscates or physically occupies property. A
regulatory taking occurs when the governments regulation leaves no reasonable
economically viable use of the property.[80]
In the landmark case of Pennsylvania Coal v. Mahon,[81] it was held that a taking
also could be found if government regulation of the use of property went too far.
When regulation reaches a certain magnitude, in most if not in all cases there must
be an exercise of eminent domain and compensation to support the act. While
property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.[82]
No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was
a question of degree and therefore cannot be disposed of by general propositions. On
many other occasions as well, the U.S. Supreme Court has said that the issue of
when regulation constitutes a taking is a matter of considering the facts in each case.
The Court asks whether justice and fairness require that the economic loss caused by
public action must be compensated by the government and thus borne by the public
as a whole, or whether the loss should remain concentrated on those few persons
subject to the public action.[83]

unlawful taking

115

What is crucial in judicial consideration of regulatory takings is that government


regulation is a taking if it leaves no reasonable economically viable use of property
in a manner that interferes with reasonable expectations for use.[84] A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owners point of view, equivalent to a taking unless principles of nuisance or property
law that existed when the owner acquired the land make the use prohibitable.[85]
When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.[86]

The second option instructs the owners to abandon their property and build another
one outside the Ermita-Malate area. In every sense, it qualifies as a taking without
just compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to
the problem, it merely relocates it. Not only is this impractical, it is unreasonable,
onerous and oppressive. The conversion into allowed enterprises is just as ridiculous.
How may the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property? This is a taking
of private property without due process of law, nay, even without compensation.

A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places limitations
on land that fall short of eliminating all economically beneficial use, a taking
nonetheless may have occurred, depending on a complex of factors including the
regulations economic effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings clause
which is to prevent the government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole.
[87]

The penalty of closure likewise constitutes unlawful taking that should be


compensated by the government. The burden on the owner to convert or transfer his
business, otherwise it will be closed permanently after a subsequent violation should
be borne by the public as this end benefits them as a whole.

A restriction on use of property may also constitute a taking if not reasonably


necessary to the effectuation of a substantial public purpose or if it has an unduly
harsh impact on the distinct investment-backed expectations of the owner.[88]
The Ordinance gives the owners and operators of the prohibited establishments three
(3) months from its approval within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area. The directive to wind up business
operations amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his establishment
to accommodate an allowed business, the structure which housed the previous
business will be left empty and gathering dust. Suppose he transfers it to another
area, he will likewise leave the entire establishment idle. Consideration must be
given to the substantial amount of money invested to build the edifices which the
owner reasonably expects to be returned within a period of time. It is apparent that
the Ordinance leaves no reasonable economically viable use of property in a manner
that interferes with reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businessesare confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of the
Ordinance is also equivalent to a taking of private property.

Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A


zoning ordinance, although a valid exercise of police power, which limits a
wholesome property to a use which can not reasonably be made of it constitutes the
taking of such property without just compensation. Private property which is not
noxious nor intended for noxious purposes may not, by zoning, be destroyed without
compensation. Such principle finds no support in the principles of justice as we
know them. The police powers of local government units which have always
received broad and liberal interpretation cannot be stretched to cover this particular
taking.
Distinction should be made between destruction from necessity and eminent domain.
It needs restating that the property taken in the exercise of police power is destroyed
because it is noxious or intended for a noxious purpose while the property taken
under the power of eminent domain is intended for a public use or purpose and is
therefore wholesome.[89] If it be of public benefit that a wholesome property remain
unused or relegated to a particular purpose, then certainly the public should bear the
cost of reasonable compensation for the condemnation of private property for public
use.[90]
Further, the Ordinance fails to set up any standard to guide or limit the petitioners
actions. It in no way controls or guides the discretion vested in them. It provides no
definition of the establishments covered by it and it fails to set forth the conditions
when the establishments come within its ambit of prohibition. The Ordinance confers
upon the mayor arbitrary and unrestricted power to close down establishments.
Ordinances such as this, which make possible abuses in its execution, depending
upon no conditions or qualifications whatsoever other than the unregulated arbitrary
will of the city authorities as the touchstone by which its validity is to be tested, are
unreasonable and invalid. The Ordinance should have established a rule by which its
impartial enforcement could be secured.[91]

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Ordinances placing restrictions upon the lawful use of property must, in order to be
valid and constitutional, specify the rules and conditions to be observed and conduct
to avoid; and must not admit of the exercise, or of an opportunity for the exercise, of
unbridled discretion by the law enforcers in carrying out its provisions.[92]
Thus, in Coates v. City of Cincinnati,[93] as cited in People v. Nazario,[94] the U.S.
Supreme Court struck down an ordinance that had made it illegal for three or more
persons to assemble on any sidewalk and there conduct themselves in a manner
annoying to persons passing by. The ordinance was nullified as it imposed no
standard at all because one may never know in advance what annoys some people
but does not annoy others.
Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and adversely
affect the social and moral welfare of the community. The cited case supports the
nullification of the Ordinance for lack of comprehensible standards to guide the law
enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments
without infringing the due process clause. These lawful establishments may be
regulated, but not prevented from carrying on their business. This is a sweeping
exercise of police power that is a result of a lack of imagination on the part of the
City Council and which amounts to an interference into personal and private rights
which the Court will not countenance. In this regard, we take a resolute stand to
uphold the constitutional guarantee of the right to liberty and property.

hours should be included within the licensing scheme. As regards the second point,
the Court held that limiting motel room rentals to ten (10) hours will have no
discernible effect on personal bonds as those bonds that are formed from the use of a
motel room for fewer than ten (10) hours are not those that have played a critical role
in the culture and traditions of the nation by cultivating and transmitting shared
ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila,[96] it needs pointing out, is also different from this case in that
what was involved therein was a measure which regulated the mode in which motels
may conduct business in order to put an end to practices which could encourage vice
and immorality. Necessarily, there was no valid objection on due process or equal
protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power to
prohibit.[97]
The foregoing premises show that the Ordinance is an unwarranted and unlawful
curtailment of property and personal rights of citizens. For being unreasonable and
an undue restraint of trade, it cannot, even under the guise of exercising police
power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause

Worthy of note is an example derived from the U.S. of a reasonable regulation which
is a far cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,[95] the city of Dallas adopted a comprehensive
ordinance regulating sexually oriented businesses, which are defined to include adult
arcades, bookstores, video stores, cabarets, motels, and theaters as well as escort
agencies, nude model studio and sexual encounter centers. Among other things, the
ordinance required that such businesses be licensed. A group of motel owners were
among the three groups of businesses that filed separate suits challenging the
ordinance. The motel owners asserted that the city violated the due process clause by
failing to produce adequate support for its supposition that renting room for fewer
than ten (10) hours resulted in increased crime and other secondary effects. They
likewise argued than the ten (10)-hour limitation on the rental of motel rooms placed
an unconstitutional burden on the right to freedom of association. Anent the first
contention, the U.S. Supreme Court held that the reasonableness of the legislative
judgment combined with a study which the city considered, was adequate to support
the citys determination that motels permitting room rentals for fewer than ten (10 )

Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar
subjects, in other words, should not be treated differently, so as to give undue favor
to some and unjustly discriminate against others.[98] The guarantee means that no
person or class of persons shall be denied the same protection of laws which is
enjoyed by other persons or other classes in like circumstances.[99] The equal
protection of the laws is a pledge of the protection of equal laws.[100] It limits
governmental discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.[101]
The Court has explained the scope of the equal protection clause in this wise:
What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: The ideal situation is for the laws benefits to be available to all, that
none be placed outside the sphere of its coverage. Only thus could chance and favor
be excluded and the affairs of men governed by that serene and impartial uniformity,

117

which is of the very essence of the idea of law. There is recognition, however, in the
opinion that what in fact exists cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the realities of the
situation. The constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the general welfare be
promoted, which is the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such circumstances invoke
the equal protection clause only if they can show that the governmental act assailed,
far from being inspired by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no support in reason.
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities
imposed. Favoritism and undue preference cannot be allowed. For the principle is
that equal protection and security shall be given to every person under circumstances
which, if not identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest.[102]

The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious
establishment does not become any less noxious if located outside the area.

Legislative bodies are allowed to classify the subjects of legislation. If the


classification is reasonable, the law may operate only on some and not all of the
people without violating the equal protection clause.[103] The classification must, as
an indispensable requisite, not be arbitrary. To be valid, it must conform to the
following requirements:

The Ordinance is in contravention of the Code as the latter merely empowers local
government units to regulate, and not prohibit, the establishments enumerated in
Section 1 thereof.

1) It must be based on substantial distinctions.


2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]
In the Courts view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition,
all are commercial establishments providing lodging and usually meals and other
services for the public. No reason exists for prohibiting motels and inns but not
pension houses, hotels, lodging houses or other similar establishments. The
classification in the instant case is invalid as similar subjects are not similarly
treated, both as to rights conferred and obligations imposed. It is arbitrary as it does
not rest on substantial distinctions bearing a just and fair relation to the purpose of
the Ordinance.

The standard where women are used as tools for entertainment is also discriminatory
as prostitutionone of the hinted ills the Ordinance aims to banishis not a profession
exclusive to women. Both men and women have an equal propensity to engage in
prostitution. It is not any less grave a sin when men engage in it. And why would the
assumption that there is an ongoing immoral activity apply only when women are
employed and be inapposite when men are in harness? This discrimination based on
gender violates equal protection as it is not substantially related to important
government objectives.[105] Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires

The power of the City Council to regulate by ordinances the establishment,


operation, and maintenance of motels, hotels and other similar establishments is
found in Section 458 (a) 4 (iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
...
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
...
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,
beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .

118

While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or
entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
...
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
...
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments, the only power of the City
Council to legislate relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress and prohibit
altogether the establishment, operation and maintenance of such establishments. It is
well to recall the rulings of the Court in Kwong Sing v. City of Manila[106] that:
The word regulate, as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
regulate should not be construed as synonymous with suppress or prohibit.
Consequently, under the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the employment or business
shall be exercised.[107]
And in People v. Esguerra,[108] wherein the Court nullified an ordinance of the
Municipality of Tacloban which prohibited the selling, giving and dispensing of

liquor ratiocinating that the municipality is empowered only to regulate the same and
not prohibit. The Court therein declared that:
(A)s a general rule when a municipal corporation is specifically given authority or
power to regulate or to license and regulate the liquor traffic, power to prohibit is
impliedly withheld.[109]
These doctrines still hold contrary to petitioners assertion[110] that they were
modified by the Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for entertainment
or amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to
regulate, suppress and suspend such other events or activities for amusement or
entertainment, particularly those which tend to disturb the community or annoy the
inhabitants and to prohibit certain forms of amusement or entertainment in order to
protect the social and moral welfare of the community are stated in the second and
third clauses, respectively of the same Section. The several powers of the City
Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to
emphasize, are separated by semi-colons (;), the use of which indicates that the
clauses in which these powers are set forth are independent of each other albeit
closely related to justify being put together in a single enumeration or paragraph.
[111] These powers, therefore, should not be confused, commingled or consolidated
as to create a conglomerated and unified power of regulation, suppression and
prohibition.[112]
The Congress unequivocably specified the establishments and forms of amusement
or entertainment subject to regulation among which are beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments (Section 458
(a) 4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors,
and other places for entertainment or amusement (Section 458 (a) 4 (vii)). This
enumeration therefore cannot be included as among other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants or certain forms of amusement or entertainment which the
City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it
and those which are necessarily implied or incidental to the exercise thereof. By
reason of its limited powers and the nature thereof, said powers are to be construed
strictissimi juris and any doubt or ambiguity arising out of the terms used in granting
said powers must be construed against the City Council.[113] Moreover, it is a
general rule in statutory construction that the express mention of one person, thing,
or consequence is tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic and the natural

119

workings of human mind. It is particularly applicable in the construction of such


statutes as create new rights or remedies, impose penalties or punishments, or
otherwise come under the rule of strict construction.[114]
The argument that the City Council is empowered to enact the Ordinance by virtue of
the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila is likewise without merit. On the first point, the ruling of the Court
in People v. Esguerra,[115] is instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by
the other provisions of the same Code, and therefore it can not be applied to
intoxicating liquors, for the power to regulate the selling, giving away and
dispensing thereof is granted specifically by section 2242 (g) to municipal councils.
To hold that, under the general power granted by section 2238, a municipal council
may enact the ordinance in question, notwithstanding the provision of section 2242
(g), would be to make the latter superfluous and nugatory, because the power to
prohibit, includes the power to regulate, the selling, giving away and dispensing of
intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised
Charter of Manila. Legis posteriores priores contrarias abrogant, or later statute
repeals prior ones which are repugnant thereto. As between two laws on the same
subject matter, which are irreconcilably inconsistent, that which is passed later
prevails, since it is the latest expression of legislative will.[116] If there is an
inconsistency or repugnance between two statutes, both relating to the same subject
matter, which cannot be removed by any fair and reasonable method of
interpretation, it is the latest expression of the legislative will which must prevail and
override the earlier.[117]
Implied repeals are those which take place when a subsequently enacted law contains
provisions contrary to those of an existing law but no provisions expressly repealing
them. Such repeals have been divided into two general classes: those which occur
where an act is so inconsistent or irreconcilable with an existing prior act that only
one of the two can remain in force and those which occur when an act covers the
whole subject of an earlier act and is intended to be a substitute therefor. The validity
of such a repeal is sustained on the ground that the latest expression of the legislative
will should prevail.[118]

petitioners interpretation that the Revised Charter of Manila empowers the City
Council to prohibit motels, that portion of the Charter stating such must be
considered repealed by the Code as it is at variance with the latters provisions
granting the City Council mere regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property, health
or comfort of the community. It is a legitimate business. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that purpose. A motel is not
per se a nuisance warranting its summary abatement without judicial intervention.
[119]
Notably, the City Council was conferred powers to prevent and prohibit certain
activities and establishments in another section of the Code which is reproduced as
follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the proper exercise of the
corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
...
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties
for habitual drunkenness in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of houses of ill repute, gambling and other prohibited
games of chance, fraudulent devices and ways to obtain money or property, drug
addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the
printing, distribution or exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the welfare and morals of the
inhabitants of the city;
...

In addition, Section 534(f) of the Code states that All general and special laws, acts,
city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions
of this Code are hereby repealed or modified accordingly. Thus, submitting to

If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have
so declared in uncertain terms by adding them to the list of the matters it may

120

prohibit under the above-quoted Section. The Ordinance now vainly attempts to
lump these establishments with houses of ill-repute and expand the City Councils
powers in the second and third clauses of Section 458 (a) 4 (vii) of the Code in an
effort to overreach its prohibitory powers. It is evident that these establishments may
only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage
clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses as
among the contractors defined in paragraph (h) thereof. The same Section also
defined amusement as a pleasurable diversion and entertainment, synonymous to
relaxation, avocation, pastime or fun; and amusement places to include theaters,
cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances. Thus,
it can be inferred that the Code considers these establishments as legitimate
enterprises and activities. It is well to recall the maxim reddendo singula singulis
which means that words in different parts of a statute must be referred to their
appropriate connection, giving to each in its place, its proper force and effect, and, if
possible, rendering none of them useless or superfluous, even if strict grammatical
construction demands otherwise. Likewise, where words under consideration appear
in different sections or are widely dispersed throughout an act the same principle
applies.[120]
Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already
converted the residential Ermita-Malate area into a commercial area. The decree
allowed the establishment and operation of all kinds of commercial establishments
except warehouse or open storage depot, dump or yard, motor repair shop, gasoline
service station, light industry with any machinery or funeral establishment. The rule
is that for an ordinance to be valid and to have force and effect, it must not only be
within the powers of the council to enact but the same must not be in conflict with or
repugnant to the general law.[121] As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:[122]

the enactment in question, which are merely local in origin cannot prevail against the
decree, which has the force and effect of a statute.[123]
Petitioners contend that the Ordinance enjoys the presumption of validity. While this
may be the rule, it has already been held that although the presumption is always in
favor of the validity or reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness appears on the face
of the ordinance itself or is established by proper evidence. The exercise of police
power by the local government is valid unless it contravenes the fundamental law of
the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common right.
[124]
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and
impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes
statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently
detailed and explicit that abuses may attend the enforcement of its sanctions. And not
to be forgotten, the City Council under the Code had no power to enact the
Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and
shares the concern of the public for the cleansing of the Ermita-Malate area of its
social sins. Police power legislation of such character deserves the full endorsement
of the judiciary we reiterate our support for it. But inspite of its virtuous aims, the
enactment of the Ordinance has no statutory or constitutional authority to stand on.
Local legislative bodies, in this case, the City Council, cannot prohibit the operation
of the enumerated establishments under Section 1 thereof or order their transfer or
conversion without infringing the constitutional guarantees of due process and equal
protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional
Trial Court declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.

The requirement that the enactment must not violate existing law explains itself.
Local political subdivisions are able to legislate only by virtue of a valid delegation
of legislative power from the national legislature (except only that the power to
create their own sources of revenue and to levy taxes is conferred by the Constitution
itself). They are mere agents vested with what is called the power of subordinate
legislation. As delegates of the Congress, the local government units cannot
contravene but must obey at all times the will of their principal. In the case before us,
ESTRADA v. SANDIGANBAYAN [369 SCRA 394 2001)] Issues:

Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez,


Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.

121

1. WON Plunder Law is unconstitutional for being vague No. As long as the law
affords some comprehensible guide or rule that would inform those who are subject
to it what conduct would render them liable to its penalties, its validity will be
sustained. The amended information itself closely tracks the language of law,
indicating w/ reasonable certainty the various elements of the offense w/c the
petitioner is alleged to have committed. We discern nothing in the foregoing that is
vague or ambiguous that will confuse petitioner in his defense.
Petitioner however bewails the failure of the law to provide for the statutory
definition of the terms combination and series in the key phrase a comb
ination or series of overt or criminal acts. These omissions, according to the
petitioner, render the Plunder Law unconstitutional for being impermissibly vague
and overbroad and deny him the right to be informed of the nature and cause of the
accusation against him, hence violative of his fundamental right to due process. A
statute is not rendered uncertain and void merely because general terms are used
herein, or because of the employment of terms without defining them. A statute or
act may be said to be vague when it lacks comprehensible standards that men of
common intelligence most necessarily guess at its meaning and differ in its
application. In such instance, the statute is repugnant to the Constitution in two (2)
respects

it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle. A facial challenge is allowed to be made to vague statute and to
one which is overbroad
because of possible chilling effect upon protected speech.
The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of other may
be deterred and perceived grievances left to fester because of possible inhibitory
effects of overly broad statutes. But in criminal law, the law cannot take chances as
in the area of free speech. 2. WON the Plunder Law requires less evidence for
providing the predicate crimes of plunder and therefore violates the rights of the
accused to due process No. Sec. 4 (Rule of Evidence) states that: For purposes of
establishing the crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy. In a criminal prosecution for plunder, as in all other crimes,
the accused always has in his favor the presumption of innocence guaranteed by the
Bill of Rights, and unless the State succeeds in demonstrating by proof beyond
[G.R. No. 148560. November 19, 2001]

reasonable doubt that culpability lies, the accused is entitled to an acquittal. The
reasonable doubt standard has acquired
such exalted stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except upon proof of
reasonable doubt of every fact necessary to constitute the crime with which he is
charged. Not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every
element of the crime charged

the element of the offense.


Relative to petitioners contentions on the purported defect of Sec. 4 is his
submission that pattern is a very important
element of the crime of plun
der; and that Sec. 4 is two
-pronged, (as) it contains a rule of evidence and a substantive element
of the crime, such that without it the accused cannot be convicted of plunder
We do not subscribe to petitioners stand. Primarily, all the essential e
lements of plunder can be culled and understood from its definition in Sec. 2, in
relation to sec. 1 par. (d). Sec. 4 purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for plunder. Being a purely
procedural measure, Sec. 4 does not define or establish any substantive right in favor
of the accused but only operated in furtherance of a remedy. What is crucial for the
prosecution is to present sufficient evidence to engender that moral certitude exacted
by the fundamental law to prove the guilt of the accused beyond reasonable doubt. 3.
WON Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is
within the power of Congress to so classify it. No. It is malum in se which requires
proof of criminal intent. Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is noteworthy
that the amended information alleges that
the crime of plunder was committed willfully, unlawfully and criminally. It thus
alleges guilty knowledge on the part of
petitioner. In support of his contention In support of his contention that the statute
eliminates the requirement of mens rea and that is the reason he claims the statute is
void, petitioner cites the following remarks of Senator Taada made during the
deliberation on S.B. No.733 Senator Taada was only saying that where the charge is
conspiracy to commit plunder, the prosecution need not prove each and every
criminal act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.
DECISION

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third


Division) and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:

122

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in
defense of the rights of the individual from the vast powers of the State and the
inroads of societal pressure. But even as he draws a sacrosanct line demarcating the
limits on individuality beyond which the State cannot tread - asserting that
"individual spontaneity" must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of rights and liberties is
imbued with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-protection. The
only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to selfpreservation. With the end of maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of laws that would compel
obeisance to its collective wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism
wrought changes in the social order, carrying with it a new formulation of
fundamental rights and duties more attuned to the imperatives of contemporary
socio-political ideologies. In the process, the web of rights and State impositions
became tangled and obscured, enmeshed in threads of multiple shades and colors, the
skein irregular and broken. Antagonism, often outright collision, between the law as
the expression of the will of the State, and the zealous attempts by its members to
preserve their individuality and dignity, inevitably followed. It is when individual
rights are pitted against State authority that judicial conscience is put to its severest
test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted
under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as
amended by RA 7659,[2] wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct line which divides the valid
from the constitutionally infirm. He therefore makes a stringent call for this Court to
subject the Plunder Law to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the
"reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under The Revised Penal Code, all
of which are purportedly clear violations of the fundamental rights of the accused to
due process and to be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have


transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are
reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business,
enterprise or material possession of any person within the purview of Section Two
(2) hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and/or business associates by any combination or series of the
following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds
or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or instrumentalities, or
government owned or controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of mitigating and

123

extenuating circumstances as provided by the Revised Penal Code shall be


considered by the court. The court shall declare any and all ill-gotten wealth and
their interests and other incomes and assets including the properties and shares of
stocks derived from the deposit or investment thereof forfeited in favor of the State
(underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight
(8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of
RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive,
for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019
(Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards
for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183
of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An
Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to
the Ombudsman for preliminary investigation with respect to specification "d" of the
charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c"
to give the accused an opportunity to file counter-affidavits and other documents
necessary to prove lack of probable cause. Noticeably, the grounds raised were only
lack of preliminary investigation, reconsideration/reinvestigation of offenses, and
opportunity to prove lack of probable cause. The purported ambiguity of the charges
and the vagueness of the law under which they are charged were never raised in that
Omnibus Motion thus indicating the explicitness and comprehensibility of the
Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim.
Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to
justify the issuance of warrants for the arrest of the accused." On 25 June 2001
petitioner's motion for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No.
26558 on the ground that the facts alleged therein did not constitute an indictable
offense since the law on which it was based was unconstitutional for vagueness, and
that the Amended Information for Plunder charged more than one (1) offense. On 21

June 2001 the Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9
July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September
2001, the issues for resolution in the instant petition for certiorari are: (a) The
Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less
evidence for proving the predicate crimes of plunder and therefore violates the rights
of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a
malum prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is presumed
to be in harmony with the Constitution.[3] Courts invariably train their sights on this
fundamental rule whenever a legislative act is under a constitutional attack, for it is
the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one branch of
the government to encroach upon the duties and powers of another. Thus it has been
said that the presumption is based on the deference the judicial branch accords to its
coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts
must assume that the legislature is ever conscious of the borders and edges of its
plenary powers, and has passed the law with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of the majority. Hence
in determining whether the acts of the legislature are in tune with the fundamental
law, courts should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the courts in favor of
its constitutionality, invalidity being a measure of last resort. In construing therefore
the provisions of a statute, courts must first ascertain whether an interpretation is
fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as there is
some basis for the decision of the court, the constitutionality of the challenged law
will not be touched and the case will be decided on other available grounds. Yet the
force of the presumption is not sufficient to catapult a fundamentally deficient law
into the safe environs of constitutionality. Of course, where the law clearly and
palpably transgresses the hallowed domain of the organic law, it must be struck down
on sight lest the positive commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party
challenging the validity of the statute. He must demonstrate beyond any tinge of
doubt that there is indeed an infringement of the constitution, for absent such a

124

showing, there can be no finding of unconstitutionality. A doubt, even if wellfounded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to
sustain."[5] And petitioner has miserably failed in the instant case to discharge his
burden and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined
parameters which would enable the accused to determine the nature of his violation.
Section 2 is sufficiently explicit in its description of the acts, conduct and conditions
required or forbidden, and prescribes the elements of the crime with reasonable
certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination
or series of the following overt or criminal acts: (a) through misappropriation,
conversion, misuse, or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift, share, percentage,
kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer; (c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise or
undertaking; (e) by establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or (f) by taking advantage of official position,
authority, relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed,
accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform
those who are subject to it what conduct would render them liable to its penalties, its
validity will be sustained. It must sufficiently guide the judge in its application; the
counsel, in defending one charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of a
public officer in amassing or accumulating ill-gotten wealth of at least

P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par.


(d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which
petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the
Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan
OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada,
THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself
AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR
OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE,
did then and there willfully, unlawfully and criminally amass, accumulate and
acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN
MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY
THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE
EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series
of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as
follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE
MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection
with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration
OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

125

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing


DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit,
public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of the TWO HUNDRED
MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the
province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with
co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos
Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION
ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND
SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50)
AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX
HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE
BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
(P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID
PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS
(P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION
WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS,
IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of
MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING
THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE
EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is
obviously none - that will confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the elements of the crime are easily
understood and provide adequate contrast between the innocent and the prohibited

acts. Upon such unequivocal assertions, petitioner is completely informed of the


accusations against him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory
definition of the terms "combination" and "series" in the key phrase "a combination
or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word
"pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered
uncertain and void merely because general terms are used therein, or because of the
employment of terms without defining them;[6] much less do we have to define
every word we use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so define the
words employed in a statute will not necessarily result in the vagueness or ambiguity
of the law so long as the legislative will is clear, or at least, can be gathered from the
whole act, which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute
will be interpreted in their natural, plain and ordinary acceptation and signification,
[7] unless it is evident that the legislature intended a technical or special legal
meaning to those words.[8] The intention of the lawmakers - who are, ordinarily,
untrained philologists and lexicographers - to use statutory phraseology in such a
manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the
following commonly accepted definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or process of combining.
To combine is to bring into such close relationship as to obscure individual
characters.
Series - a number of things or events of the same class coming one after another in
spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in
their popular meanings is pristinely evident from the legislative deliberations on the
bill which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May
1991

126

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say


THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS
AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination,
we actually mean to say, if there are two or more means, we mean to say that number
one and two or number one and something else are included, how about a series of
the same act? For example, through misappropriation, conversion, misuse, will these
be included also?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I
said, that is a very good suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or series of overt or criminal acts. So
xxxx
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?

REP. GARCIA: Yeah, because we say a series.


REP. GARCIA: Series, oo.
REP. ISIDRO: Series.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Yeah, we include series.
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: But we say we begin with a combination.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Two.
REP. GARCIA: Yes.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means
not twice of one enumeration.

SEN. TANADA: Two different.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Two different acts.

REP. ISIDRO: Not twice?

REP. GARCIA: For example, ha...

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: Now a series, meaning, repetition...

REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two
different acts. It cannot be a repetition of the same act.

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

REP. GARCIA: That be referred to series, yeah.


REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

SENATOR MACEDA: In line with our interpellations that sometimes one or maybe
even two acts may already result in such a big amount, on line 25, would the Sponsor
consider deleting the words a series of overt or, to read, therefore: or conspiracy
COMMITTED by criminal acts such as. Remove the idea of necessitating a series.
Anyway, the criminal acts are in the plural.

REP. GARCIA: A series.


REP. ISIDRO: Thats not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?

SENATOR TANADA: That would mean a combination of two or more of the acts
mentioned in this.
THE PRESIDENT: Probably two or more would be....

127

SENATOR MACEDA: Yes, because a series implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the
particular crime. But when we say acts of plunder there should be, at least, two or
more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr.
President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two
(2) acts falling under different categories of enumeration provided in Sec. 1, par. (d),
e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent
conveyance of assets belonging to the National Government under Sec. 1, par. (d),
subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or
criminal acts falling under the same category of enumeration found in Sec. 1, par.
(d), say, misappropriation, malversation and raids on the public treasury, all of which
fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical
or distinctive meaning for "combination" and "series," it would have taken greater
pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan[9] that this
term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or
series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d).
Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is
directed towards a common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As
commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of
action or method' which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid common goal. In the alternative,
if there is no such overall scheme or where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form part of a conspiracy to attain a
common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and
sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's
reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine
has been formulated in various ways, but is most commonly stated to the effect that a

statute establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what conduct is
prohibited by the statute. It can only be invoked against that specie of legislation that
is utterly vague on its face, i.e., that which cannot be clarified either by a saving
clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ in its
application. In such instance, the statute is repugnant to the Constitution in two (2)
respects - it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.[10] But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which nonetheless
specify a standard though defectively phrased; or to those that are apparently
ambiguous yet fairly applicable to certain types of activities. The first may be
"saved" by proper construction, while no challenge may be mounted as against the
second whenever directed against such activities.[11] With more reason, the doctrine
cannot be invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practice.[12] It must be stressed,
however, that the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld - not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the details in advance as in all
other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V.
Mendoza during the deliberations of the Court that the allegations that the Plunder
Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law."[13] The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."[14]

128

A facial challenge is allowed to be made to a vague statute and to one which is


overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity."[15] The possible
harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly
broad statutes.

invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant."[21] Consequently, there is
no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face
and in its entirety.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all
the speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of
facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid."[18] As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not
be heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional."[20] As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial

Indeed, "on its face" invalidation of statutes results in striking them down entirely on
the ground that they might be applied to parties not before the Court whose activities
are constitutionally protected.[22] It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts.[23] But, as the U.S.
Supreme Court pointed out in Younger v. Harris[24]

For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last
resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case
must be examined in the light of the conduct with which the defendant is charged.
[27]
In light of the foregoing disquisition, it is evident that the purported ambiguity of the
Plunder Law, so tenaciously claimed and argued at length by petitioner, is more
imagined than real. Ambiguity, where none exists, cannot be created by dissecting
parts and words in the statute to furnish support to critics who cavil at the want of
scientific precision in the law. Every provision of the law should be construed in
relation and with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of constitutionality and
validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators who voted for its passage,
petitioner must be aware that the law was extensively deliberated upon by the Senate
and its appropriate committees by reason of which he even registered his affirmative
vote with full knowledge of its legal implications and sound constitutional
anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to
illustrate and emphasize the point that courts are loathed to declare a statute void for

129

uncertainty unless the law itself is so imperfect and deficient in its details, and is
susceptible of no reasonable construction that will support and give it effect. In that
case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners
posited, among others, that the term "unwarranted" is highly imprecise and elastic
with no common law meaning or settled definition by prior judicial or administrative
precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does
not give fair warning or sufficient notice of what it seeks to penalize. Petitioners
further argued that the Information charged them with three (3) distinct offenses, to
wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of
"unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted"
benefits through gross inexcusable negligence while in the discharge of their official
function and that their right to be informed of the nature and cause of the accusation
against them was violated because they were left to guess which of the three (3)
offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act does not suffer from the constitutional defect of vagueness.
The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable
negligence" merely describe the different modes by which the offense penalized in
Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in
the same Information does not mean that the indictment charges three (3) distinct
offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official
support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514);
or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US
Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent
Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a
corrupt practice and make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e],
Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions
penalize is the act of a public officer, in the discharge of his official, administrative
or judicial functions, in giving any private party benefits, advantage or preference
which is unjustified, unauthorized or without justification or adequate reason,
through manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the
use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act, which was understood in its primary and general acceptation.
Consequently, in that case, petitioners' objection thereto was held inadequate to
declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the
Plunder Law circumvents the immutable obligation of the prosecution to prove
beyond reasonable doubt the predicate acts constituting the crime of plunder when it
requires only proof of a pattern of overt or criminal acts showing unlawful scheme or
conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused always has in his
favor the presumption of innocence which is guaranteed by the Bill of Rights, and
unless the State succeeds in demonstrating by proof beyond reasonable doubt that
culpability lies, the accused is entitled to an acquittal.[29] The use of the "reasonable
doubt" standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral force of
criminal law be not diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned. It is also important in our free society
that every individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without convincing a
proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard
has acquired such exalted stature in the realm of constitutional law as it gives life to
the Due Process Clause which protects the accused against conviction except upon
proof beyond reasonable doubt of every fact necessary to constitute the crime with
which he is charged.[30] The following exchanges between Rep. Rodolfo Albano
and Rep. Pablo Garcia on this score during the deliberations in the floor of the House
of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9
October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that
what is alleged in the information must be proven beyond reasonable doubt. If we
will prove only one act and find him guilty of the other acts enumerated in the
information, does that not work against the right of the accused especially so if the

130

amount committed, say, by falsification is less than P100 million, but the totality of
the crime committed is P100 million since there is malversation, bribery, falsification
of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be
proved beyond reasonable doubt. What is required to be proved beyond reasonable
doubt is every element of the crime charged. For example, Mr. Speaker, there is an
enumeration of the things taken by the robber in the information three pairs of pants,
pieces of jewelry. These need not be proved beyond reasonable doubt, but these will
not prevent the conviction of a crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is
required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of
plunder the totality of the amount is very important, I feel that such a series of overt
criminal acts has to be taken singly. For instance, in the act of bribery, he was able to
accumulate only P50,000 and in the crime of extortion, he was only able to
accumulate P1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential
element of the crime, there is a need to prove that element beyond reasonable doubt.
For example, one essential element of the crime is that the amount involved is P100
million. Now, in a series of defalcations and other acts of corruption in the
enumeration the total amount would be P110 or P120 million, but there are certain
acts that could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these transactions,
proved beyond reasonable doubt, is P100 million, then there is a crime of plunder
(underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion
the standard quantum of proof in the crime of plunder. The burden still remains with
the prosecution to prove beyond any iota of doubt every fact or element necessary to
constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the
crime suffers from a dismal misconception of the import of that provision. What the
prosecution needs to prove beyond reasonable doubt is only a number of acts
sufficient to form a combination or series which would constitute a pattern and
involving an amount of at least P50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by the accused in
furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an

Information for plunder with having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient
to prove by pattern at least two (2) of the raids beyond reasonable doubt provided
only that they amounted to at least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion
that "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden
wealth. Stated otherwise, such pattern arises where the prosecution is able to prove
beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is
merely a by-product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for a
combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy
to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not
required to make a deliberate and conscious effort to prove pattern as it necessarily
follows with the establishment of a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his
submission that "pattern" is "a very important element of the crime of plunder;" and
that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive
element of the crime," such that without it the accused cannot be convicted of
plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the
Plunder Law without applying Section 4 on the Rule of Evidence if there is proof
beyond reasonable doubt of the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated
in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved
beyond reasonable doubt without applying Section 4, can you not have a conviction
under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in
convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x

131

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when


there is proof beyond reasonable doubt on the acts charged constituting plunder?

treated independently of each other, especially if by doing so, the objectives of the
statute can best be achieved.

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a
rule of evidence and it contains a substantive element of the crime of plunder. So,
there is no way by which we can avoid Section 4.

As regards the third issue, again we agree with Justice Mendoza that plunder is a
malum in se which requires proof of criminal intent. Thus, he says, in his Concurring
Opinion -

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the
predicate crimes charged are concerned that you do not have to go that far by
applying Section 4?

x x x Precisely because the constitutive crimes are mala in se the element of mens
rea must be proven in a prosecution for plunder. It is noteworthy that the amended
information alleges that the crime of plunder was committed "willfully, unlawfully
and criminally." It thus alleges guilty knowledge on the part of petitioner.

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by the
prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential elements of
plunder can be culled and understood from its definition in Sec. 2, in relation to Sec.
1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening
clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the prosecution of a
criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define
or establish any substantive right in favor of the accused but only operates in
furtherance of a remedy. It is only a means to an end, an aid to substantive law.
Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for
what is crucial for the prosecution is to present sufficient evidence to engender that
moral certitude exacted by the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is
flawed and vitiated for the reasons advanced by petitioner, it may simply be severed
from the rest of the provisions without necessarily resulting in the demise of the law;
after all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application
thereof to any person or circumstance is held invalid, the remaining provisions of
this Act and the application of such provisions to other persons or circumstances
shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared
invalid as a result of the nullity of some of its provisions, assuming that to be the
case although it is not really so, all the provisions thereof should accordingly be

In support of his contention that the statute eliminates the requirement of mens rea
and that is the reason he claims the statute is void, petitioner cites the following
remarks of Senator Taada made during the deliberation on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be required to convict him would
not be evidence for each and every individual criminal act but only evidence
sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33]
However, Senator Taada was discussing 4 as shown by the succeeding portion of the
transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained
in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a
speedier and faster process of attending to this kind of cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is conspiracy to commit
plunder, the prosecution need not prove each and every criminal act done to further
the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a
pattern of overt or ciminal acts indicative of the overall unlawful scheme or
conspiracy. As far as the acts constituting the pattern are concerned, however, the
elements of the crime must be proved and the requisite mens rea must be shown.
Indeed, 2 provides that Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court.

132

The application of mitigating and extenuating circumstances in the Revised Penal


Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens
rea is an element of plunder since the degree of responsibility of the offender is
determined by his criminal intent. It is true that 2 refers to "any person who
participates with the said public officer in the commission of an offense contributing
to the crime of plunder." There is no reason to believe, however, that it does not
apply as well to the public officer as principal in the crime. As Justice Holmes said:
"We agree to all the generalities about not supplying criminal laws with what they
omit, but there is no canon against using common sense in construing laws as saying
what they obviously mean."[35]
Finally, any doubt as to whether the crime of plunder is a malum in se must be
deemed to have been resolved in the affirmative by the decision of Congress in 1993
to include it among the heinous crimes punishable by reclusion perpetua to death.
Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659.
Referring to these groups of heinous crimes, this Court held in People v. Echegaray:
[36]
The evil of a crime may take various forms. There are crimes that are, by their very
nature, despicable, either because life was callously taken or the victim is treated like
an animal and utterly dehumanized as to completely disrupt the normal course of his
or her growth as a human being . . . . Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting in the death
of the victim in the case of other crimes; as well as murder, rape, parricide,
infanticide, kidnapping and serious illegal detention, where the victim is detained for
more than three days or serious physical injuries were inflicted on the victim or
threats to kill him were made or the victim is a minor, robbery with homicide, rape or
intentional mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to be struggling to develop and
provide for its poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndi