En Banc1

EN BANC
SOUTHERN
HEMISPHERE
ENGAGEMENT NETWORK, INC., on
behalf of the South-South Network
(SSN) for Non-State Armed Group
Engagement, and ATTY. SOLIMAN M.
SANTOS, JR.,
Petitioners,
- versus -
ANTI-TERRORISM
COUNCIL,
THE
EXECUTIVE
SECRETARY,
THE
SECRETARY
OF
JUSTICE,
THE
SECRETARY OF FOREIGN AFFAIRS,
THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF FINANCE, THE
NATIONAL SECURITY ADVISER, THE
CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES, AND
THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE,
Respondents.
x ------------------------------- x
KILUSANG
MAYO
UNO
(KMU),
represented by its Chairperson Elmer
Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez
and Secretary General Antonio C.
Pascual, and CENTER FOR TRADE
UNION
AND
HUMAN
RIGHTS,
represented by its Executive Director

Daisy Arago,
Petitioners,
- versus HON. EDUARDO ERMITA, in his

capacity as Executive Secretary,
NORBERTO
GONZALES,
in
his
capacity as Acting Secretary of
National
Defense,
HON.
RAUL
GONZALES, in his capacity as
Secretary of Justice, HON. RONALDO
PUNO, in his capacity as Secretary of
the Interior and Local Government,
GEN. HERMOGENES ESPERON, in his
capacity as AFP Chief of Staff, and
DIRECTOR
GENERAL
OSCAR
CALDERON, in his capacity as PNP
Chief of Staff,
Respondents.
x ------------------------------------ x
BAGONG ALYANSANG MAKABAYAN

(BAYAN),
GENERAL
ALLIANCE
BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP
AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP),
MOVEMENT
OF
CONCERNED
CITIZENS FOR CIVIL LIBERTIES
(MCCCL),
CONFEDERATION
FOR
UNITY,
RECOGNITION
AND
ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), KALIPUNAN
NG
DAMAYANG
MAHIHIRAP
(KADAMAY), SOLIDARITY OF CAVITE
WORKERS, LEAGUE OF FILIPINO

STUDENTS
(LFS),
ANAKBAYAN,
PAMBANSANG LAKAS NG KILUSANG
MAMAMALAKAYA
(PAMALAKAYA),
ALLIANCE
OF
CONCERNED
TEACHERS
(ACT),
MIGRANTE,
HEALTH ALLIANCE FOR DEMOCRACY
(HEAD),
AGHAM,
TEOFISTO
GUINGONA, JR., DR. BIENVENIDO
LUMBERA, RENATO CONSTANTINO,
JR., SISTER MARY JOHN MANANSAN
OSB, DEAN CONSUELO PAZ, ATTY.
JOSEFINA LICHAUCO, COL. GERRY
CUNANAN (ret.), CARLITOS SIGUIONREYNA, DR. CAROLINA PAGADUANARAULLO, RENATO REYES, DANILO
RAMOS, EMERENCIANA DE LESUS,
RITA BAUA, REY CLARO CASAMBRE,
Petitioners,
- versus -
GLORIA MACAPAGAL-ARROYO, in her

capacity as President and Commanderin-Chief, EXECUTIVE SECRETARY
EDUARDO ERMITA, DEPARTMENT OF
JUSTICE
SECRETARY
RAUL
GONZALES,
DEPARTMENT
OF
FOREIGN
AFFAIRS
SECRETARY
ALBERTO ROMULO, DEPARTMENT OF
NATIONAL
DEFENSE
ACTING
SECRETARY NORBERTO GONZALES,
DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT SECRETARY
RONALDO PUNO. DEPARTMENT OF
FINANCE SECRETARY MARGARITO
TEVES,
NATIONAL
SECURITY
ADVISER NORBERTO GONZALES,
THE
NATIONAL
INTELLIGENCE
COORDINATING AGENCY (NICA), THE
NATIONAL
BUREAU
OF
INVESTIGATION (NBI), THE BUREAU
OF IMMIGRATION, THE OFFICE OF
CIVIL DEFENSE, THE INTELLIGENCE
SERVICE OF THE ARMED FORCES OF
THE PHILIPPINES (ISAFP), THE ANTIMONEY
LAUNDERING
COUNCIL
(AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF
OF THE
PHILIPPINE
NATIONAL
POLICE GEN. OSCAR CALDERON, THE
PNP, including its intelligence and
investigative elements, AFP CHIEF
GEN. HERMOGENES ESPERON,
Respondents.
x ------------------------------------ x
KARAPATAN, ALLIANCE FOR THE
ADVANCEMENT OF PEOPLES RIGHTS,
represented herein by Dr. Edelina de la
Paz, and representing the following
organizations: HUSTISYA, represented
by Evangeline Hernandez and also on
her own behalf; DESAPARECIDOS,
represented by Mary Guy Portajada and
also on her own behalf, SAMAHAN NG
MGA EX-DETAINEES LABAN SA
DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato
Continente and also on his own behalf,
ECUMENICAL
MOVEMENT
FOR
JUSTICE
AND
PEACE
(EMJP),
represented by Bishop Elmer M.
Bolocon, UCCP, and PROMOTION OF
CHURCH
PEOPLES
RESPONSE,
represented by Fr. Gilbert Sabado,
OCARM,
Petitioners,
- versus -

capacity as President and Commanderin-Chief, EXECUTIVE SECRETARTY
JUSTICE
SECRETARY
RAUL
GONZALEZ,
DEPARTMENT
OF
FOREIGN
AFFAIRS
SECRETARY
NATIONAL
DEFENSE
ACTING
LOCAL GOVERNMENT SECRETARY
RONALDO PUNO, DEPARTMENT OF
FINANCE SECRETARY MARGARITO
TEVES,
NATIONAL
SECURITY
THE
NATIONAL
INTELLIGENCE
NATIONAL
BUREAU
OF
LAUNDERING
COUNCIL
OF THE
PHILIPPINE
NATIONAL
Respondents.
x------------------------------------ x
THE INTEGRATED BAR OF THE

PHILIPPINES (IBP), represented by
Atty. Feliciano M. Bautista, COUNSELS
FOR
THE
DEFENSE
OF LIBERTY(CODAL), SEN. MA. ANA
CONSUELO A.S. MADRIGAL and
FORMER SENATORS SERGIO OSMEA
III and WIGBERTO E. TAADA,
Petitioners,
- versus -
EXECUTIVE SECRETARY EDUARDO

ERMITA AND THE MEMBERS OF THE
ANTI-TERRORISM COUNCIL (ATC),
Respondents.
x------------------------------------- x
BAGONG ALYANSANG MAKABAYANSOUTHERN TAGALOG (BAYAN-ST),
GABRIELA-ST, KATIPUNAN NG MGA
SAMAHYANG
MAGSASAKA-TIMOG
KATAGALUGAN
(KASAMA-TK),
MOVEMENT
OF
CONCERNED
CITIZENS FOR CIVIL LIBERTIES
(MCCCL),
PEOPLES
MARTYRS,
ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION
FOR
UNITY,
RECOGNITION AND ADVANCEMENT
OF
GOVERNMENT
EMPLOYEES
(COURAGE-ST),
PAGKAKAISAT
UGNAYAN NG MGA MAGBUBUKID SA
LAGUNA (PUMALAG), SAMAHAN NG
MGA MAMAMAYAN SA TABING RILES
(SMTR-ST), LEAGUE OF FILIPINO
STUDENTS (LFS), BAYAN MUNA-ST,
KONGRESO NG MGA MAGBUBUKID
PARA SA REPORMANG AGRARYO

KOMPRA, BIGKIS AT LAKAS NG MGA
KATUTUBO
SA
TIMOG
KATAGALUGAN
(BALATIK),
SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA
TIMOG KATAGALUGAN (SUMAMAKATK), STARTER, LOSOS RURAL POOR
ORGANIZATION FOR PROGRESS &
EQUALITY, CHRISTIAN NIO LAJARA,
TEODORO REYES, FRANCESCA B.
TOLENTINO,
JANNETTE
E.
BARRIENTOS, OSCAR T. LAPIDA, JR.,
DELFIN DE CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE BELTRAN,
Petitioners,

LAUNDERING
COUNCIL
OF THE
PHILIPPINE
NATIONAL
Respondents.
x--------------------------------------------------------------------------x
- versus DECISION
capacity as President and Commanderin-Chief, EXECUTIVE SECRETARY
JUSTICE
SECRETARY
RAUL
GONZALEZ,
DEPARTMENT
OF
FOREIGN
AFFAIRS
SECRETARY
NATIONAL
DEFENSE
ACTING
LOCAL GOVERNMEN T SECRETARY
RONALDO PUNO, DEPARTMENT OF
FINCANCE SECRETARY MARGARITO
TEVES,
NATIONAL
SECURITY
THE
NATIONAL
INTELLIGENCE
NATIONAL
BUREAU
OF
CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of
Republic Act No. 9372 (RA 9372), An Act to Secure the State and
Protect our People from Terrorism, otherwise known as the Human
Security Act of 2007,[1] signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner
Southern Hemisphere Engagement Network, Inc., a non-government
organization, and Atty. Soliman Santos, Jr., a concerned citizen,
taxpayer and lawyer, filed a petition for certiorari and prohibition
on July 16, 2007docketed as G.R. No. 178552. On even date,
petitioners Kilusang Mayo Uno (KMU), National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade
Union and Human Rights (CTUHR), represented by their respective
Justice and Peace (EMJP), and Promotion of Church Peoples
officers[3] who are also bringing the action in their capacity as citizens,
Response (PCPR), which were represented by their respective
filed a petition for certiorari and prohibition docketed as G.R. No.
officers[5] who are also bringing action on their own behalf, filed a
178554.
petition for certiorari and prohibition docketed as G.R. No. 178890.
The following day, July 17, 2007, organizations Bagong Alyansang
On August 29, 2007, the Integrated Bar of the Philippines (IBP),
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Counsels for the Defense of Liberty (CODAL),[6] Senator Ma. Ana
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for
filed a petition for certiorari and prohibition docketed as G.R. No.
Civil Liberties (MCCCL), Confederation for Unity, Recognition and
179157.
Advancement of Government Employees (COURAGE), Kalipunan ng

Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang
regional chapters and organizations mostly based in the Southern
Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of
Tagalog
Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
on September 19, 2007 a petition for certiorari and prohibition
(HEAD), and Agham, represented by their respective officers, [4] and
docketed as G.R. No. 179461that replicates the allegations raised in
joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr.
the BAYAN petition in G.R. No. 178581.
Region,[7]
and
individuals[8]
followed
suit
by
filing
Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John

Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco,
Impleaded as respondents in the various petitions are the Anti-
Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina
Terrorism Council[9] composed of, at the time of the filing of the
Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de
petitions, Executive Secretary Eduardo Ermita as Chairperson,
Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari
Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign
and prohibition docketed as G.R. No. 178581.
Affairs Secretary Alberto Romulo, Acting Defense Secretary and
On August 6, 2007, Karapatan and its alliance member organizations
National Security Adviser Norberto Gonzales, Interior and Local
Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Government Secretary Ronaldo Puno, and Finance Secretary
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Margarito Teves as members. All the petitions, except that of the IBP,
also impleaded Armed Forces of the Philippines (AFP) Chief of Staff

Gen. Hermogenes Esperon and Philippine National Police (PNP)
Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded

President Gloria Macapagal-Arroyo and the support agencies for the
Anti-Terrorism Council like the National Intelligence Coordinating
Agency, National Bureau of Investigation, Bureau of Immigration,
quasi-judicial functions has acted without or in

excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal,
nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying
that judgment be rendered annulling or modifying
the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and
justice may require. (Emphasis and underscoring
supplied)
Office of Civil Defense, Intelligence Service of the AFP, AntiMoney Laundering Center, Philippine Center on Transnational Crime,
and the PNP intelligence and investigative elements.
Parenthetically, petitioners do not even allege with any modicum of
The
particularity how respondents acted without or in excess of their
petitions fail.
respective jurisdictions, or with grave abuse of discretion amounting

to lack or excess of jurisdiction.
Petitioners
resort
certiorari
improper
to
is
The impropriety of certiorari as a remedy aside, the petitions fail just

the same.
In constitutional litigations, the power of judicial review is limited by

Preliminarily, certiorari does not lie against respondents who do not
four exacting requisites, viz: (a) there must be an actual case or
exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the
controversy; (b) petitioners must possess locus standi; (c) the
Rules of Court is clear:
question of constitutionality must be raised at the earliest opportunity;

and (d) the issue of constitutionality must be the lis mota of the case.[10]
Section 1. Petition for certiorari.When any

tribunal, board or officer exercising judicial or
thereby in some indefinite way. It must show that it

has been or is about to be denied some right or
privilege to which it is lawfully entitled or that it is
about to be subjected to some burdens or penalties
by reason of the statute or act complained of.
In the present case, the dismal absence of the first two requisites,
which are the most essential, renders the discussion of the last two
superfluous.
For a concerned party to be allowed to raise a

constitutional question, it must show that (1) it
has personally suffered some actual or
threatened injury as a result of the allegedly illegal
conduct of the government, (2) the injury is fairly
traceable to the challenged action, and (3) the injury
is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
Petitioners lack
locus standi
Locus standi or legal standing requires a personal stake in the

outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.[11]
Petitioner-organizations assert locus standi on the basis of being

suspected communist fronts by the government, especially the
Anak
Mindanao
Party-List
Group
v.
The
Executive
Secretary[12] summarized the rule on locus standi, thus:
military;
whereas
individual
petitioners
invariably
invoke
the
transcendental importance doctrine and their status as citizens and
Locus standi or legal standing has been defined as a

personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as
a result of the governmental act that is being
challenged. The gist of the question on standing is
whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of
issues upon which the court depends for illumination
of difficult constitutional questions.
taxpayers.
[A] party who assails the constitutionality of a statute

must have a direct and personal interest. It must
show not only that the law or any governmental act is
invalid, but also that it sustained or is in immediate
danger of sustaining some direct injury as a result
of its enforcement, and not merely that it suffers
societal interests in the proscription of harmful conduct, as will later be
While Chavez v. PCGG[13] holds that transcendental public importance

dispenses with the requirement that petitioner has experienced or is
in actual danger of suffering direct and personal injury, cases involving
the constitutionality of penal legislation belong to an altogether
different genus of constitutional litigation. Compelling State and
elucidated, necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of

the controversy. None of them faces any charge under RA 9372.
The Court cannot take judicial notice of the alleged tagging of

petitioners.
KARAPATAN,
Hustisya,
Desaparecidos,
SELDA,
EMJP and PCR, petitioners in G.R. No. 178890, allege that they have
been subjected to close security surveillance by state security forces,
their members followed by suspicious persons and vehicles with dark
windshields, and their offices monitored by men with military
build. They likewise claim that they have been branded as enemies of
the [S]tate.[14]
Even conceding such gratuitous allegations, the Office of the Solicitor

General (OSG) correctly points out that petitioners have yet to show
anyconnection
between
the
purported surveillance and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW,

LFS,
Anakbayan,
PAMALAKAYA,
ACT,
Migrante,
HEAD andAgham, petitioner-organizations in G.R. No. 178581,

would
like
the
Court
to
take
judicial
notice
of
respondents alleged action of tagging them as militant organizations

fronting for the Communist Party of the Philippines (CPP) and its
armed wing, the National Peoples Army (NPA). The tagging,
according to petitioners, is tantamount to the effects of proscription
without following the procedure under the law.[15] The petition
ofBAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.
Generally speaking, matters of judicial notice have

three material requisites: (1) the matter must be
one of common and general knowledge; (2) it
must bewell and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to
be within the limits of the jurisdiction of the court. The
principal guide in determining what facts may be
assumed to be judicially known is that of notoriety.
Hence, it can be said that judicial notice is limited to
facts evidenced by public records and facts of general
notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it
iseither: (1) generally known within the territorial
jurisdiction of the trial court; or (2) capable of
accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be
questionable.
Things of common knowledge, of which courts take
judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of
life, or they may be matters which are generally
accepted by mankind as true and are capable of
ready and unquestioned demonstration. Thus, facts
which are universally known, and which may be found
in encyclopedias, dictionaries or other publications,
are judicially noticed, provided, they are of such
universal notoriety and so generally understood that
they may be regarded as forming part of the common
knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety
of particular facts have been judicially noticed as
being matters of common knowledge. But a court
cannot take judicial notice of any fact which, in
part, is dependent on the existence or non-
existence of a fact of which the court has no

constructive
knowledge.[16]
(emphasis
and
underscoring supplied.)
organizations as domestic terrorist or outlawed organizations

under RA 9372. Again, RA 9372 has been in effect for three years
now. From July 2007 up to the present, petitioner-organizations have
No ground was properly established by petitioners for the taking of
conducted their activities fully and freely without any threat of, much
judicial notice. Petitioners apprehension is insufficient to substantiate
less an actual, prosecution or proscription under RA 9372.
their plea.That no specific charge or proscription under RA 9372 has

been filed against them, three years after its effectivity, belies any
Parenthetically, the Fourteenth Congress, in a resolution initiated by
claim of imminence of their perceived threat emanating from the so-
Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael
called tagging.
Mariano and Luzviminda Ilagan,[20] urged the government to resume

peace negotiations with the NDF by removing the impediments
The same is true with petitioners KMU, NAFLU and CTUHR in G.R.
thereto, one of which is the adoption of designation of the CPP and
No. 178554, who merely harp as well on their supposed link to the
NPA by the US and EU as foreign terrorist organizations. Considering
CPP and NPA. They fail to particularize how the implementation of
the policy statement of the Aquino Administration[21] of resuming
specific provisions of RA 9372 would result in direct injury to their
peace talks with the NDF, the government is not imminently disposed
organization and members.
to ask for the judicial proscription of the CPP-NPA consortium and its
allied organizations.
While in our jurisdiction there is still no judicially declared terrorist

organization, the United States of America[17] (US) and the European
More important, there are other parties not before the Court with direct
Union[18] (EU) have both classified the CPP, NPA and Abu
and specific interests in the questions being raised.[22] Of recent
Sayyaf Group as foreign terrorist organizations. The Court takes note
development is the filing of the first case for proscription under
of the joint statement of Executive Secretary Eduardo Ermita and
Section 17[23] of RA 9372 by the Department of Justice before the
Justice Secretary Raul Gonzales that the Arroyo Administration would
Basilan
adopt the US and EU classification of the CPP and NPA as terrorist
Sayyaf Group.[24] Petitioner-organizations do not in the least allege
organizations.[19] Such statement notwithstanding, there is yet to be
any link to the Abu Sayyaf Group.
filed before the courts an application to declare the CPP and NPA
Regional
Trial
Court
against
the
Abu
Some petitioners attempt, in vain though, to show the imminence of a
overemphasized that three years after the enactment of RA 9372,
prosecution under RA 9372 by alluding to past rebellion charges
none of petitioners has been charged.
against them.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim
In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion
of locus standi on their sworn duty to uphold the Constitution. The IBP
charges filed in 2006 against then Party-List Representatives Crispin
zeroes in on Section 21 of RA 9372 directing it to render assistance to
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA,
those arrested or detained under the law.
and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan

Muna. Also named in the dismissed rebellion charges were petitioners
The mere invocation of the duty to preserve the rule of law does not,
Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes,
however, suffice to clothe the IBP or any of its members with
Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of
standing.[27] The IBP failed to sufficiently demonstrate how its mandate
being front organizations for the Communist movement were
under the assailed statute revolts against its constitutional rights and
petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA,
duties. Moreover, both the IBP and CODAL have not pointed to even
KMP, KADAMAY, LFS and COURAGE.[26]
a single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have
The dismissed rebellion charges, however, do not save the day for
been the subject of political surveillance, also lacks locus
petitioners. For one, those charges were filed in 2006, prior to the
standi. Prescinding from the veracity, let alone legal basis, of the claim
enactment of RA 9372, and dismissed by this Court. For another,
of political surveillance, the Court finds that she has not shown even
rebellion is defined and punished under the Revised Penal
the slightest threat of being charged under RA 9372. Similarly lacking
Code. Prosecution for rebellion is not made more imminent by the
in locus standi are former Senator Wigberto Taada and Senator
enactment of RA 9372, nor does the enactment thereof make it easier
Sergio Osmea III, who cite their being respectively a human rights
to charge a person with rebellion, its elements not having been altered.
advocate and an oppositor to the passage of RA 9372. Outside these

gratuitous statements, no concrete injury to them has been pinpointed.
Conversely, previously filed but dismissed rebellion charges bear no

relation to prospective charges under RA 9372. It cannot be
Petitioners Southern Hemisphere Engagement Network and Atty.

Soliman Santos Jr. in G.R. No. 178552 also conveniently state that
the issues they raise are of transcendental importance, which must be

settled early and are of far-reaching implications, without mention of
any specific provision of RA 9372 under which they have been
charged, or may be charged. Mere invocation of human rights
Petitioners fail
to present an
actual case or
controversy
advocacy has nowhere been held sufficient to clothe litigants

with locus standi. Petitioners must show an actual, or immediate
By constitutional fiat, judicial power operates only when there is an
danger of sustaining, direct injury as a result of the laws
actual case or controversy.
enforcement. To rule otherwise would be to corrupt the settled doctrine

of locus standi, as every worthy cause is an interest shared by the
general public.
Neither can locus standi be conferred upon individual petitioners

as taxpayers and citizens. A taxpayer suit is proper only when there is
an exercise of the spending or taxing power of Congress,[28] whereas
citizen standing must rest on direct and personal interest in the
Section 1. The judicial power shall be vested in one

Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.[30] (emphasis
and underscoring supplied.)
proceeding.[29]
As early as Angara v. Electoral Commission,[31] the Court ruled that
RA 9372 is a penal statute and does not even provide for any
the power of judicial review is limited to actual cases or controversies
appropriation from Congress for its implementation, while none of the
to be exercised after full opportunity of argument by the parties. Any
individual petitioner-citizens has alleged any direct and personal
attempt at abstraction could only lead to dialectics and barren legal
interest in the implementation of the law.
questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy
It bears to stress that generalized interests, albeit accompanied by the
that is appropriate or ripe for determination, not conjectural or
assertion of a public right, do not establish locus standi. Evidence of a
anticipatory, lest the decision of the court would amount to an advisory
direct and personal interest is key.
opinion.[32]
Information
Technology
Foundation
of
the
Philippines
v.
COMELEC[33] cannot be more emphatic:
The Court dismissed the petition in Philippine Press Institute v.

Commission on Elections[36] for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed
[C]ourts do not sit to adjudicate mere

academic questions to satisfy scholarly
interest,
however
intellectually
challenging. The controversy must be
justiciabledefinite and concrete, touching on the
legal relations of parties having adverse legal
interests. In other words, the pleadings must
show an active antagonistic assertion of a
legal right, on the one hand, and a denial
thereof on the other hand; that is, it must
concern a real and not merely a theoretical
question or issue. There ought to be an actual
and substantial controversy admitting of
specific relief through a decree conclusive in
nature, as distinguished from an opinion
advising what the law would be upon a
hypothetical state of facts. (Emphasis and
underscoring supplied)
resolution. It refused, in Abbas v. Commission on Elections,[37] to rule

on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of the
Muslim Code and those of the national law, there being no actual
controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or

anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence

of a perceived threat to any constitutional interestsuffices to provide a
basis for mounting a constitutional challenge. This, however, is
qualified by the requirement that there must be sufficient factsto
enable the Court to intelligently adjudicate the issues.[38]
Thus, a petition to declare unconstitutional a law converting

the Municipality of Makati into a Highly Urbanized City was held to be
premature
as
it
was
tacked
on
uncertain,
contingent
events.[34] Similarly, a petition that fails to allege that an application for

a license to operate a radio or television station has been denied or
granted by the authorities does not present a justiciable controversy,
and merely wheedles the Court to rule on a hypothetical problem.[35]
Very recently, the US Supreme Court, in Holder v. Humanitarian Law

Project,[39] allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since plaintiffs faced a credible
threat of prosecution and should not be required to await and undergo
a criminal prosecution as the sole means of seeking relief.[40] The
plaintiffs therein filed an action before a federal court to assail the
constitutionality of the material support statute, 18 U.S.C. 2339B (a)
(1),[41] proscribing the provision of material support to organizations
declared
by
the
Secretary
of
State
as
foreign
terrorist
organizations. They claimed that they intended to provide support for
are merely theorized, lie beyond judicial review for lack of
the humanitarian and political activities of two such organizations.
ripeness.[44]
Prevailing American jurisprudence allows an adjudication on the
The possibility of abuse in the implementation of RA 9372 does not
merits when an anticipatory petition clearly shows that the
avail to take the present petitions out of the realm of the surreal and
challenged prohibition forbids the conduct or activity that a
merely imagined. Such possibility is not peculiar to RA 9372 since the
petitioner seeks to do, as there would then be a justiciable
exercise of any power granted by law may be abused. [45] Allegations
controversy.[42]
of abuse must be anchored on real events before courts may step in

to settle actual controversies involving rights which are legally
Unlike the plaintiffs in Holder, however, herein petitioners have failed

to
show
that
the
challenged
provisions
of
RA
demandable and enforceable.
9372
forbid constitutionally protected conduct or activity that they seek to

do. No demonstrable threat has been established, much less a real
and existing one.
Petitioners obscure allegations of sporadic surveillance and
A facial invalidation of
a statute is allowed
only in free speech
cases, wherein certain
rules of constitutional
litigation are rightly
excepted
supposedly being tagged as communist fronts in no way

approximate a credible threat of prosecution. From these
Petitioners assail for being intrinsically vague and impermissibly
allegations, the Court is being lured to render an advisory
broad the definition of the crime of terrorism [46] under RA 9372 in that
opinion, which is not its function.[43]
terms likewidespread and extraordinary fear and panic among the

populace and coerce the government to give in to an unlawful
Without any justiciable controversy, the petitions have become pleas
demand are nebulous, leaving law enforcement agencies with no
for declaratory relief, over which the Court has no original
standard to measure the prohibited acts.
jurisdiction. Then again, declaratory actions characterized by double

contingency, where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official
Respondents, through the OSG, counter that the doctrines of void-for-
statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness and overbreadth find no application in the present case
vagueness analysis, and concluded that the therein subject election
since these doctrines apply only to free speech cases; and that RA
offense[53] under the Voters Registration Act of 1996, with which the
9372 regulates conduct, not speech.
therein petitioners were charged, is couched in precise language.[54]
For a jurisprudentially guided understanding of these doctrines, it is
The two Romualdez cases rely heavily on the Separate Opinion[55] of
imperative to outline the schools of thought on whether the void-for-
Justice Vicente V. Mendoza in the Estrada case, where the Court
vagueness and overbreadth doctrines are equally applicable grounds
found the Anti-Plunder Law (Republic Act No. 7080) clear and free
to assail a penal statute.
from ambiguity respecting the definition of the crime of plunder.
Respondents interpret recent jurisprudence as slanting toward the

idea of limiting the application of the two doctrines to free speech
The position taken by Justice Mendoza in Estrada relates these two
cases.
doctrines to the concept of a facial invalidation as opposed to an as-
They
particularly
cite
Romualdez
v.
Hon.
Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]
applied challenge. He basically postulated that allegations that a penal
The Court clarifies.
statute is vague and overbroad do not justify a facial review of its

validity. The pertinent portion of the Concurring Opinion of Justice
At issue in Romualdez v. Sandiganbayan was whether the word
Mendoza, which was quoted at length in the main Estrada decision,
intervene in Section 5[49] of the Anti-Graft and Corrupt Practices Act
reads:
was intrinsically vague and impermissibly broad. The Court stated that
the overbreadth and the vagueness doctrines have special application
only to free-speech cases, and are not appropriate for testing the
validity of penal statutes.[50] It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not
vague.[51]
While in the subsequent case of Romualdez v. Commission on

Elections,[52] the Court stated that a facial invalidation of criminal
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." 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.
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.
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." In Broadrick
v. Oklahoma, 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." 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."
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." Consequently, there is no basis for
petitioner's claim that this Court review the AntiPlunder Law on its face and in its entirety.
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. 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. But, as the U.S. Supreme
Court pointed out in Younger v. Harris
[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.
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," and is generally disfavored. 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.[56] (Underscoring
supplied.)
process for failure to accord persons, especially the parties targeted

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.[57] The overbreadth doctrine, meanwhile, decrees that a

governmental purpose to control or prevent activities constitutionally
subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected
freedoms.[58]
As distinguished from the vagueness doctrine, the overbreadth
doctrine assumes that individuals will understand what a statute
prohibits and will accordingly refrain from that behavior, even though
some of it is protected.[59]
The confusion apparently stems from the interlocking relation of

the overbreadth and vagueness doctrines as grounds for a facial or as-
A facial challenge is likewise different from an as-applied challenge.
appliedchallenge against a penal statute (under a claim of violation of

due process of law) or a speech regulation (under a claim of
Distinguished from an as-applied challenge which considers
abridgement of the freedom of speech and cognate rights).
only extant facts affecting real litigants, a facial invalidation is an

examination of theentire law, pinpointing its flaws and defects, not
To be sure, the doctrine of vagueness and the doctrine of overbreadth
only on the basis of its actual operation to the parties, but also on the
do not operate on the same plane.
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
A statute or act suffers from the defect of vagueness when it lacks
activities.[60]
comprehensible standards that men of common intelligence must

necessarily guess at its meaning and differ as to its application. It is
Justice Mendoza accurately phrased the subtitle[61] in his concurring
repugnant to the Constitution in two respects: (1) it violates due
opinion that the vagueness and overbreadth doctrines, as grounds for
a facial challenge, are not applicable to penal laws. A litigant cannot

thus successfully mount a facial challenge against a criminal
statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by

the aim to avert the chilling effect on protected speech, the exercise
of which should not at all times be abridged.[62] As reflected earlier,
this rationale is inapplicable to plain penal statutes that generally bear
against a penal statute is, at best, amorphous and

speculative. It would, essentially, force the court to
consider third parties who are not before it. As I have
said in my opposition to the allowance of a facial
challenge to attack penal statutes, such a test will
impair the States ability to deal with crime. If warranted,
there would be nothing that can hinder an accused from
defeating the States power to prosecute on a mere
showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that the
law is clear as applied to him.[65] (Emphasis and
underscoring supplied)
an in terroremeffect in deterring socially harmful conduct. In fact, the

legislature may even forbid and penalize acts formerly considered
It is settled, on the other hand, that the application of the
innocent and lawful, so long as it refrains from diminishing or
overbreadth doctrine is limited to a facial kind of challenge and,
dissuading the exercise of constitutionally protected rights.[63]
owing to the given rationale of a facial challenge, applicable only

to free speech cases.
The Court reiterated that there are critical limitations by which a

criminal statute may be challenged and underscored that an on-its-
By its nature, the overbreadth doctrine has to necessarily apply a facial
face invalidation of penal statutes x x x may not be allowed.[64]
type of invalidation in order to plot areas of protected speech,

inevitably almost always under situations not before the court, that are
[T]he rule established in our jurisdiction is, only statutes

on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under
no case may ordinary penal statutes be subjected
to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No
prosecution would be possible. A strong criticism
against employing a facial challenge in the case of
penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an
existing and concrete controversy before judicial power
may be appropriately exercised. A facial challenge
impermissibly
swept
by
the
substantially
overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed

for being substantially overbroad if the court confines itself only to facts
as applied to the litigants.
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.[66] (Emphasis in the original omitted;
underscoring supplied.)
transcendent value to all society of constitutionally protected

expression.[71]
Since a penal statute may

only be assailed for being
vague
as
applied
to
petitioners,
a
limited
vagueness analysis of the
definition of terrorism in RA
9372 is legally impermissible
absent
an
actual
or
imminent charge against
them
While Estrada did not apply the overbreadth doctrine, it did not
preclude the operation of the vagueness test on the Anti-Plunder
Law as applied to the therein petitioner, finding, however, that there
was no basis to review the law on its face and in its entirety. [72] It
In restricting the overbreadth doctrine to free speech claims, the Court,

in at least two cases,[67] observed that the US Supreme Court has not
stressed that statutes found vague as a matter of due process typically

are invalidated only 'as applied' to a particular defendant.[73]
recognized an overbreadth doctrine outside the limited context of the

First Amendment,[68] and that claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or
American jurisprudence[74] instructs that vagueness challenges that do

not involve the First Amendment must be examined in light of
the specific facts of the case at hand and not with regard to the
statute's facial validity.
regulation that is not specifically addressed to speech or speechrelated conduct.Attacks on overly broad statutes are justified by the
For more than 125 years, the US Supreme Court has evaluated
defendants claims that criminal statutes are unconstitutionally vague,
developing a doctrine hailed as among the most important guarantees
condition of widespread and extraordinary fear and panic among the
of liberty under law.[75]
populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.
In this jurisdiction, the void-for-vagueness doctrine asserted under the

due process clause has been utilized in examining the constitutionality
In insisting on a facial challenge on the invocation that the law
of criminal statutes. In at least three cases,[76] the Court brought the
penalizes speech, petitioners contend that the element of unlawful
doctrine into play in analyzing an ordinance penalizing the non-
demand in the definition of terrorism [77] must necessarily be
payment of municipal tax on fishponds, the crime of illegal recruitment
transmitted through some form of expression protected by the free
punishable under Article 132(b) of the Labor Code, and the vagrancy
speech clause.
provision under Article 202 (2) of the Revised Penal Code. Notably,
the petitioners in these three cases, similar to those in the
The argument does not persuade. What the law seeks to penalize
two Romualdez and Estrada cases, were actually charged with the
is conduct, not speech.
therein assailed penal statute, unlike in the present case.

Before a charge for terrorism may be filed under RA 9372, there must
There is no merit in
the claim that RA
9372
regulates
speech so as to
permit
a
facial
analysis
of
its
validity
first be a predicate crime actually committed to trigger the operation of

the key qualifying phrases in the other elements of the crime, including
the coercion of the government to accede to an unlawful
demand. Given the presence of the first element, any attempt at
singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a
From the definition of the crime of terrorism in the earlier cited Section
protected speech.
3 of RA 9372, the following elements may be culled: (1) the offender

commits an act punishable under any of the cited provisions of the
Petitioners notion on the transmission of message is entirely
Revised Penal Code, or under any of the enumerated special penal
inaccurate, as it unduly focuses on just one particle of an element of
laws; (2) the commission of the predicate crime sows and creates a
the crime. Almost every commission of a crime entails some mincing

of words on the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount of ransom or
is not involved here, the Court cannot heed the call for a facial
conditions, or in negotiating a deceitful transaction. An analogy in
analysis.
one U.S. case[78] illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to
IN FINE, Estrada and the other cited authorities engaged in a
take down a sign reading White Applicants Only hardly means that the
vagueness analysis of the therein subject penal statute as applied to
law should be analyzed as one regulating speech rather than conduct.
the therein petitioners inasmuch as they were actually charged with
Utterances not elemental but inevitably incidental to the doing of the
the pertinent crimes challenged on vagueness grounds. The Court in
criminal conduct alter neither the intent of the law to punish socially
said cases, however, found no basis to review the assailed penal
harmfulconduct nor the essence of the whole act as conduct and not
statute on its face and in its entirety.
speech. This holds true a fortiori in the present case where the
expression figures only as an inevitable incident of making the
element of coercion perceptible.
In Holder, on the other hand, the US Supreme Court allowed the preenforcement review of a criminal statute, challenged on vagueness
grounds, since the therein plaintiffs faced a credible threat of
[I]t is true that the agreements and course of conduct

here were as in most instances brought about through
speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct
was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or
printed. Such an expansive interpretation of the
constitutional guaranties of speech and press would
make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as
many other agreements and conspiracies deemed
injurious to society.[79] (italics and underscoring
supplied)
prosecution and should not be required to await and undergo a

criminal prosecution as the sole means of seeking relief.
As earlier reflected, petitioners have established neither an actual
charge nor a credible threat of prosecution under RA 9372. Even
a limited vagueness analysis of the assailed definition of terrorism is
thus legally impermissible. The Court reminds litigants that judicial
power neither contemplates speculative counseling on a statutes
future effect on hypothetical scenarios nor allows the courts to be used
as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
Certain kinds of speech have been treated as unprotected conduct,

because they merely evidence a prohibited conduct.[80] Since speech
EN BANC
[G.R. No. 117040. January 27, 2000]
RUBEN SERRANO, petitioner, vs. NATIONAL LABOR
RELATIONS COMMISSION and ISETANN DEPARTMENT
STORE, respondents.
......In view of the retrenchment program of the

company, we hereby reiterate our verbal notice to
you of your termination as Security Section Head
effective October 11, 1991.
......Please secure your clearance from this office.
Very truly yours,
DECISION
[Sgd.] TERESITA A. VILLANUEVA
Human Resources Division Manager
MENDOZA, J.:
This is a petition seeking review of the resolutions, dated March 30,
1994 and August 26, 1994, of the National Labor Relations
Commission (NLRC) which reversed the decision of the Labor
Arbiter and dismissed petitioner Ruben Serranos complaint for illegal
dismissal and denied his motion for reconsideration. The facts are as
follows:
Petitioner was hired by private respondent Isetann Department Store
as a security checker to apprehend shoplifters and prevent pilferage
of merchandise.[1] Initially hired on October 4, 1984 on contractual
basis, petitioner eventually became a regular employee on April 4,
1985. In 1988, he became head of the Security Checkers Section of
private respondent.[2]
Sometime in 1991, as a cost-cutting measure, private respondent
decided to phase out its entire security section and engage the
services of an independent security agency. For this reason, it wrote
petitioner the following memorandum:[3]
October 11, 1991
MR. RUBEN SERRANO
PRESENT
Dear Mr. Serrano,
The loss of his employment prompted petitioner to file a complaint on

December 3, 1991 for illegal dismissal, illegal layoff, unfair labor
practice, underpayment of wages, and nonpayment of salary and
overtime pay.[4]
The parties were required to submit their position papers, on the
basis of which the Labor Arbiter defined the issues as follows: [5]
Whether or not there is a valid ground for the
dismissal of the complainant.
Whether or not complainant is entitled to his
monetary claims for underpayment of wages,
nonpayment of salaries, 13th month pay for 1991
and overtime pay.
Whether or not Respondent is guilty of unfair labor
practice.
Thereafter, the case was heard. On April 30, 1993, the Labor Arbiter
rendered a decision finding petitioner to have been illegally
dismissed. He ruled that private respondent failed to establish that it
had retrenched its security section to prevent or minimize losses to
its business; that private respondent failed to accord due process to
petitioner; that private respondent failed to use reasonable standards
in selecting employees whose employment would be terminated; that
private respondent had not shown that petitioner and other

employees in the security section were so inefficient so as to justify
their replacement by a security agency, or that "cost-saving devices
[such as] secret video cameras (to monitor and prevent shoplifting)
and secret code tags on the merchandise" could not have been
employed; instead, the day after petitioners dismissal, private
respondent employed a safety and security supervisor with duties
and functions similar to those of petitioner.
(c)......Ordering the Respondent to

pay complainant unpaid wages in
the amount of P2,020.73 and
proportionate 13th month pay in the
amount of P3,198.30;
(d)......Ordering the Respondent to
pay complainant the amount
of P7,995.91, representing 10%
attorneys fees based on the total
judgment award of P79,959.12.
Accordingly, the Labor Arbiter ordered:[6]

WHEREFORE, above premises considered,
judgment is hereby decreed:
(a)......Finding the dismissal of the
complainant to be illegal and
concomitantly, Respondent is
ordered to pay complainant full
backwages without qualification or
deduction in the amount
of P74,740.00 from the time of his
dismissal until reinstatement
(computed till promulgation only)
based on his monthly salary
of P4,040.00/month at the time of
his termination but limited to (3)
three years;
(b)......Ordering the Respondent to
immediately reinstate the
complainant to his former position
as security section head or to a
reasonably equivalent supervisorial
position in charges of security
without loss of seniority rights,
privileges and benefits. This order is
immediately executory even
pending appeal;
All other claims of the complainant

whether monetary or otherwise is
hereby dismissed for lack of merit.
SO ORDERED.
Private respondent appealed to the NLRC which, in its resolution of
March 30, 1994, reversed the decision of the Labor Arbiter and
ordered petitioner to be given separation pay equivalent to one
month pay for every year of service, unpaid salary, and proportionate
13th month pay. Petitioner filed a motion for reconsideration, but his
motion was denied.
The NLRC held that the phase-out of private respondents security
section and the hiring of an independent security agency constituted
an exercise by private respondent of "[a] legitimate business decision
whose wisdom we do not intend to inquire into and for which we
cannot substitute our judgment"; that the distinction made by the
Labor Arbiter between "retrenchment" and the employment of "costsaving devices" under Art. 283 of the Labor Code was insignificant
because the company official who wrote the dismissal letter
apparently used the term "retrenchment" in its "plain and ordinary
sense: to layoff or remove from ones job, regardless of the reason
therefor"; that the rule of "reasonable criteria" in the selection of the
employees to be retrenched did not apply because all positions in
the security section had been abolished; and that the appointment of
a safety and security supervisor referred to by petitioner to prove bad
faith on private respondents part was of no moment because the

position had long been in existence and was separate from
petitioners position as head of the Security Checkers Section.
Hence this petition. Petitioner raises the following issue:
IS THE HIRING OF AN INDEPENDENT SECURITY
AGENCY BY THE PRIVATE RESPONDENT TO
REPLACE ITS CURRENT SECURITY SECTION A
VALID GROUND FOR THE DISMISSAL OF THE
EMPLOYEES CLASSED UNDER THE LATTER?[7]
Petitioner contends that abolition of private respondents Security
Checkers Section and the employment of an independent security
agency do not fall under any of the authorized causes for dismissal
under Art. 283 of the Labor Code.
Petitioner Laid Off for Cause
Petitioners contention has no merit. Art. 283 provides:
Closure of establishment and reduction of
personnel. - The employer may also terminate the
employment of any employee due to the installation
of labor-saving devices, redundancy, retrenchment
to prevent losses or the closing or cessation of
operations of the establishment or undertaking
unless the closing is for the purpose of
circumventing the provisions of this Title, by serving
a written notice on the workers and the Department
of Labor and Employment at least one (1) month
before the intended date thereof. In case of
termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby
shall be entitled to a separation pay equivalent to at
least one (1) month pay or to at least one (1) month
pay for every year of service, whichever is higher. In
case of retrenchment to prevent losses and in cases
of closure or cessation of operations of
establishment or undertaking not due to serious

business losses or financial reverses, the separation
pay shall be equivalent to at least one (1) month pay
or at least one-half (1/2) month pay for every year of
service, whichever is higher. A fraction of at least six
(6) months shall be considered as one (1) whole
year.
In De Ocampo v. National Labor Relations Commission,[8] this Court
upheld the termination of employment of three mechanics in a
transportation company and their replacement by a company
rendering maintenance and repair services. It held:
In contracting the services of Gemac Machineries,
as part of the companys cost-saving program, the
services rendered by the mechanics became
redundant and superfluous, and therefore properly
terminable. The company merely exercised its
business judgment or management prerogative. And
in the absence of any proof that the management
abused its discretion or acted in a malicious or
arbitrary manner, the court will not interfere with the
exercise of such prerogative.[9]
In Asian Alcohol Corporation v. National Labor Relations
Commission,[10] the Court likewise upheld the termination of
employment of water pump tenders and their replacement by
independent contractors. It ruled that an employers good faith in
implementing a redundancy program is not necessarily put in doubt
by the availment of the services of an independent contractor to
replace the services of the terminated employees to promote
economy and efficiency.
Indeed, as we pointed out in another case, the "[management of a
company] cannot be denied the faculty of promoting efficiency and
attaining economy by a study of what units are essential for its
operation. To it belongs the ultimate determination of whether
services should be performed by its personnel or contracted to
outside agencies . . . [While there] should be mutual consultation,
eventually deference is to be paid to what management

decides."[11] Consequently, absent proof that management acted in a
malicious or arbitrary manner, the Court will not interfere with the
exercise of judgment by an employer.[12]
In the case at bar, we have only the bare assertion of petitioner that,
in abolishing the security section, private respondents real purpose
was to avoid payment to the security checkers of the wage increases
provided in the collective bargaining agreement approved in
1990.[13] Such an assertion is not a sufficient basis for concluding
that the termination of petitioners employment was not a bona
fide decision of management to obtain reasonable return from its
investment, which is a right guaranteed to employers under the
Constitution.[14] Indeed, that the phase-out of the security section
constituted a "legitimate business decision" is a factual finding of an
administrative agency which must be accorded respect and even
finality by this Court since nothing can be found in the record which
fairly detracts from such finding.[15]
Accordingly, we hold that the termination of petitioners services was
for an authorized cause, i.e., redundancy. Hence, pursuant to Art.
283 of the Labor Code, petitioner should be given separation pay at
the rate of one month pay for every year of service.
Sanctions for Violations of the Notice Requirement
Art. 283 also provides that to terminate the employment of an
employee for any of the authorized causes the employer must serve
"a written notice on the workers and the Department of Labor and
Employment at least one (1) month before the intended date
thereof." In the case at bar, petitioner was given a notice of
termination on October 11, 1991. On the same day, his services
were terminated. He was thus denied his right to be given written
notice before the termination of his employment, and the question is
the appropriate sanction for the violation of petitioners right.
To be sure, this is not the first time this question has arisen.
In Sebuguero v. NLRC,[16] workers in a garment factory were
temporarily laid off due to the cancellation of orders and a garment
embargo. The Labor Arbiter found that the workers had been illegally
dismissed and ordered the company to pay separation pay and
backwages. The NLRC, on the other hand, found that this was a
case of retrenchment due to business losses and ordered the
payment of separation pay without backwages. This Court sustained
the NLRCs finding. However, as the company did not comply with
the 30-day written notice in Art. 283 of the Labor Code, the Court
ordered the employer to pay the workersP2,000.00 each as
indemnity.
The decision followed the ruling in several cases involving dismissals
which, although based on any of the just causes under Art.
282,[17] were effected without notice and hearing to the employee as
required by the implementing rules.[18] As this Court said: "It is now
settled that where the dismissal of one employee is in fact for a just
and valid cause and is so proven to be but he is not accorded his
right to due process, i.e., he was not furnished the twin requirements
of notice and opportunity to be heard, the dismissal shall be upheld
but the employer must be sanctioned for non-compliance with the
requirements of, or for failure to observe, due process."[19]
The rule reversed a long standing policy theretofore followed that
even though the dismissal is based on a just cause or the
termination of employment is for an authorized cause, the dismissal
or termination is illegal if effected without notice to the employee.
The shift in doctrine took place in 1989 in Wenphil Corp. v.
NLRC.[20] In announcing the change, this Court said:[21]
The Court holds that the policy of ordering the
reinstatement to the service of an employee without
loss of seniority and the payment of his wages
during the period of his separation until his actual
reinstatement but not exceeding three (3) years
without qualification or deduction, when it appears
he was not afforded due process, although his
dismissal was found to be for just and authorized
cause in an appropriate proceeding in the Ministry of
Labor and Employment, should be re-examined. It
will be highly prejudicial to the interests of the
employer to impose on him the services of an
employee who has been shown to be guilty of the

charges that warranted his dismissal from
employment. Indeed, it will demoralize the rank and
file if the undeserving, if not undesirable, remains in
the service.
....
However, the petitioner must nevertheless be held to
account for failure to extend to private respondent
his right to an investigation before causing his
dismissal. The rule is explicit as above discussed.
The dismissal of an employee must be for just or
authorized cause and after due process. Petitioner
committed an infraction of the second requirement.
Thus, it must be imposed a sanction for its failure to
give a formal notice and conduct an investigation as
required by law before dismissing petitioner from
employment. Considering the circumstances of this
case petitioner must indemnify the private
respondent the amount of P1,000.00. The measure
of this award depends on the facts of each case and
the gravity of the omission committed by the
employer.
too niggardly, and sometimes even too late." On the other hand,
Justice Puno says there has in effect been fostered a policy of
"dismiss now, pay later" which moneyed employers find more
convenient to comply with than the requirement to serve a 30-day
written notice (in the case of termination of employment for an
authorized cause under Arts. 283-284) or to give notice and hearing
(in the case of dismissals for just causes under Art. 282).
For this reason, they regard any dismissal or layoff without the
requisite notice to be null and void even though there are just or
authorized causes for such dismissal or layoff. Consequently, in their
view, the employee concerned should be reinstated and paid
backwages.
Validity of Petitioners Layoff Not Affected by Lack of Notice
Need for Reexamining the Wenphil Doctrine
We agree with our esteemed colleagues, Justices Puno and

Panganiban, that we should rethink the sanction of fine for an
employers disregard of the notice requirement. We do not agree,
however, that disregard of this requirement by an employer renders
the dismissal or termination of employment null and void. Such a
stance is actually a reversion to the discredited pre-Wenphil rule of
ordering an employee to be reinstated and paid backwages when it
is shown that he has not been given notice and hearing although his
dismissal or layoff is later found to be for a just or authorized cause.
Such rule was abandoned in Wenphil because it is really unjust to
require an employer to keep in his service one who is guilty, for
example, of an attempt on the life of the employer or the latters
family, or when the employer is precisely retrenching in order to
prevent losses.
Today, we once again consider the question of appropriate sanctions

for violations of the notice requirement in light of our experience
during the last decade or so with theWenphil doctrine. The number of
cases involving dismissals without the requisite notice to the
employee, although effected for just or authorized causes, suggests
that the imposition of fine for violation of the notice requirement has
not been effective in deterring violations of the notice requirement.
Justice Panganiban finds the monetary sanctions "too insignificant,
The need is for a rule which, while recognizing the employees right
to notice before he is dismissed or laid off, at the same time
acknowledges the right of the employer to dismiss for any of the just
causes enumerated in Art. 282 or to terminate employment for any of
the authorized causes mentioned in Arts. 283-284. If
the Wenphil rule imposing a fine on an employer who is found to
have dismissed an employee for cause without prior notice is
deemed ineffective in deterring employer violations of the notice
The fines imposed for violations of the notice requirement have

varied
from P1,000.00[22] to P2,000.00[23] to P5,000.00[24] to P10,000.00.[25]
requirement, the remedy is not to declare the dismissal void if there

are just or valid grounds for such dismissal or if the termination is for
an authorized cause. That would be to uphold the right of the
employee but deny the right of the employer to dismiss for cause.
Rather, the remedy is to order the payment to the employee of full
backwages from the time of his dismissal until the court finds that the
dismissal was for a just cause. But, otherwise, his dismissal must be
upheld and he should not be reinstated. This is because his
dismissal is ineffectual.
For the same reason, if an employee is laid off for any of the causes
in Arts. 283-284, i.e., installation of a labor-saving device, but the
employer did not give him and the DOLE a 30-day written notice of
termination in advance, then the termination of his employment
should be considered ineffectual and he should be paid backwages.
However, the termination of his employment should not be
considered void but he should simply be paid separation pay as
provided in Art. 283 in addition to backwages.
Justice Puno argues that an employers failure to comply with the
notice requirement constitutes a denial of the employees right to due
process. Prescinding from this premise, he quotes the statement of
Chief Justice Concepcion in Vda. de Cuaycong v. Vda. de
Sengbengco[26] that "acts of Congress, as well as of the Executive,
can deny due process only under the pain of nullity, and judicial
proceedings suffering from the same flaw are subject to the same
sanction, any statutory provision to the contrary notwithstanding."
Justice Puno concludes that the dismissal of an employee without
notice and hearing, even if for a just cause, as provided in Art. 282,
or for an authorized cause, as provided in Arts. 283-284, is a nullity.
Hence, even if just or authorized causes exist, the employee should
be reinstated with full back pay. On the other hand, Justice
Panganiban quotes from the statement in People v. Bocar[27] that
"[w]here the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for
lack of jurisdiction."
Violation of Notice Requirement Not a Denial of Due Process
The cases cited by both Justices Puno and Panganiban refer,

however, to the denial of due process by the State, which is not the
case here. There are three reasons why, on the other hand, violation
by the employer of the notice requirement cannot be considered a
denial of due process resulting in the nullity of the employees
dismissal or layoff.
The first is that the Due Process Clause of the Constitution is a
limitation on governmental powers. It does not apply to the exercise
of private power, such as the termination of employment under the
Labor Code. This is plain from the text of Art. III, 1 of the
Constitution, viz.: "No person shall be deprived of life, liberty, or
property without due process of law. . . ." The reason is simple: Only
the State has authority to take the life, liberty, or property of the
individual. The purpose of the Due Process Clause is to ensure that
the exercise of this power is consistent with what are considered
civilized methods.
The second reason is that notice and hearing are required under the
Due Process Clause before the power of organized society are
brought to bear upon the individual. This is obviously not the case of
termination of employment under Art. 283. Here the employee is not
faced with an aspect of the adversary system. The purpose for
requiring a 30-day written notice before an employee is laid off is not
to afford him an opportunity to be heard on any charge against him,
for there is none. The purpose rather is to give him time to prepare
for the eventual loss of his job and the DOLE an opportunity to
determine whether economic causes do exist justifying the
termination of his employment.
Even in cases of dismissal under Art. 282, the purpose for the
requirement of notice and hearing is not to comply with Due Process
Clause of the Constitution. The time for notice and hearing is at the
trial stage. Then that is the time we speak of notice and hearing as
the essence of procedural due process. Thus, compliance by the
employer with the notice requirement before he dismisses an
employee does not foreclose the right of the latter to question the
legality of his dismissal. As Art. 277(b) provides, "Any decision taken
by the employer shall be without prejudice to the right of the worker
to contest the validity or legality of his dismissal by filing a complaint
with the regional branch of the National Labor Relations

Commission."
Indeed, to contend that the notice requirement in the Labor Code is
an aspect of due process is to overlook the fact that Art. 283 had its
origin in Art. 302 of the Spanish Code of Commerce of 1882 which
gave either party to the employer-employee relationship the right to
terminate their relationship by giving notice to the other one month in
advance. In lieu of notice, an employee could be laid off by paying
him a mesada equivalent to his salary for one month.[28] This
provision was repealed by Art. 2270 of the Civil Code, which took
effect on August 30, 1950. But on June 12, 1954, R.A. No. 1052,
otherwise known as the Termination Pay Law, was enacted reviving
the mesada. On June 21, 1957, the law was amended by R.A. No.
1787 providing for the giving of advance notice or the payment of
compensation at the rate of one-half month for every year of
service.[29]
The Termination Pay Law was held not to be a substantive law but a
regulatory measure, the purpose of which was to give the employer
the opportunity to find a replacement or substitute, and the employee
the equal opportunity to look for another job or source of
employment. Where the termination of employment was for a just
cause, no notice was required to be given to the employee.[30] It was
only on September 4, 1981 that notice was required to be given even
where the dismissal or termination of an employee was for cause.
This was made in the rules issued by the then Minister of Labor and
Employment to implement B.P. Blg. 130 which amended the Labor
Code. And it was still much later when the notice requirement was
embodied in the law with the amendment of Art. 277(b) by R.A. No.
6715 on March 2, 1989. It cannot be that the former regime denied
due process to the employee. Otherwise, there should now likewise
be a rule that, in case an employee leaves his job without cause and
without prior notice to his employer, his act should be void instead of
simply making him liable for damages.
The third reason why the notice requirement under Art. 283 can not
be considered a requirement of the Due Process Clause is that the
employer cannot really be expected to be entirely an impartial judge
of his own cause. This is also the case in termination of employment
for a just cause under Art. 282 (i.e., serious misconduct or willful
disobedience by the employee of the lawful orders of the employer,
gross and habitual neglect of duties, fraud or willful breach of trust of
the employer, commission of crime against the employer or the
latters immediate family or duly authorized representatives, or other
analogous cases).
Justice Puno disputes this. He says that "statistics in the DOLE will
prove that many cases have been won by employees before the
grievance committees manned by impartial judges of the company."
The grievance machinery is, however, different because it is
established by agreement of the employer and the employees and
composed of representatives from both sides. That is why,
in Batangas Laguna Tayabas Bus Co. v. Court of Appeals,[31] which
Justice Puno cites, it was held that "Since the right of [an employee]
to his labor is in itself a property and that the labor agreement
between him and [his employer] is the law between the parties, his
summary and arbitrary dismissal amounted to deprivation of his
property without due process of law." But here we are dealing with
dismissals and layoffs by employers alone, without the intervention
of any grievance machinery. Accordingly in Montemayor v. Araneta
University Foundation,[32] although a professor was dismissed
without a hearing by his university, his dismissal for having made
homosexual advances on a student was sustained, it appearing that
in the NLRC, the employee was fully heard in his defense.
Lack of Notice Only Makes Termination Ineffectual
Not all notice requirements are requirements of due process. Some
are simply part of a procedure to be followed before a right granted
to a party can be exercised. Others are simply an application of the
Justinian precept, embodied in the Civil Code,[33] to act with justice,
give everyone his due, and observe honesty and good faith toward
ones fellowmen. Such is the notice requirement in Arts. 282-283.
The consequence of the failure either of the employer or the
employee to live up to this precept is to make him liable in damages,
not to render his act (dismissal or resignation, as the case may be)
void. The measure of damages is the amount of wages the
employee should have received were it not for the termination of his
employment without prior notice. If warranted, nominal and moral

damages may also be awarded.
We hold, therefore, that, with respect to Art. 283 of the Labor Code,
the employers failure to comply with the notice requirement does not
constitute a denial of due process but a mere failure to observe a
procedure for the termination of employment which makes the
termination of employment merely ineffectual. It is similar to the
failure to observe the provisions of Art. 1592, in relation to Art. 1191,
of the Civil Code[34] in rescinding a contract for the sale of immovable
property. Under these provisions, while the power of a party to
rescind a contract is implied in reciprocal obligations, nonetheless, in
cases involving the sale of immovable property, the vendor cannot
exercise this power even though the vendee defaults in the payment
of the price, except by bringing an action in court or giving notice of
rescission by means of a notarial demand.[35]Consequently, a notice
of rescission given in the letter of an attorney has no legal effect, and
the vendee can make payment even after the due date since no valid
notice of rescission has been given.[36]
Indeed, under the Labor Code, only the absence of a just cause for
the termination of employment can make the dismissal of an
employee illegal. This is clear from Art. 279 which provides:
Security of Tenure. - In cases of regular
employment, the employer shall not terminate the
services of an employee except for a just cause or
when authorized by this Title. An employee who
is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and
other privileges and to his full backwages, inclusive
of allowances, and to his other benefits or their
monetary equivalent computed from the time his
compensation was withheld from him up to the time
of his actual reinstatement.[37]
Thus, only if the termination of employment is not for any of the
causes provided by law is it illegal and, therefore, the employee
should be reinstated and paid backwages. To contend, as Justices
Puno and Panganiban do, that even if the termination is for a just or
authorized cause the employee concerned should be reinstated and
paid backwages would be to amend Art. 279 by adding another
ground for considering a dismissal illegal. What is more, it would
ignore the fact that under Art. 285, if it is the employee who fails to
give a written notice to the employer that he is leaving the service of
the latter, at least one month in advance, his failure to comply with
the legal requirement does not result in making his resignation void
but only in making him liable for damages.[38] This disparity in legal
treatment, which would result from the adoption of the theory of the
minority cannot simply be explained by invoking President Ramon
Magsaysays motto that "he who has less in life should have more in
law." That would be a misapplication of this noble phrase originally
from Professor Thomas Reed Powell of the Harvard Law School.
Justice Panganiban cites Pepsi-Cola Bottling Co. v. NLRC,[39] in
support of his view that an illegal dismissal results not only from want
of legal cause but also from the failure to observe "due process."
The Pepsi-Cola case actually involved a dismissal for an alleged loss
of trust and confidence which, as found by the Court, was not
proven. The dismissal was, therefore, illegal, not because there was
a denial of due process, but because the dismissal was without
cause. The statement that the failure of management to comply with
the notice requirement "taints the dismissal with illegality" was
merely a dictum thrown in as additional grounds for holding the
dismissal to be illegal.
Given the nature of the violation, therefore, the appropriate sanction
for the failure to give notice is the payment of backwages for the
period when the employee is considered not to have been effectively
dismissed or his employment terminated. The sanction is not the
payment alone of nominal damages as Justice Vitug contends.
Unjust Results of Considering Dismissals/Layoffs Without Prior
Notice As Illegal
The refusal to look beyond the validity of the initial action taken by
the employer to terminate employment either for an authorized or
just cause can result in an injustice to the employer. For not giving
notice and hearing before dismissing an employee, who is otherwise

guilty of, say, theft, or even of an attempt against the life of the
employer, an employer will be forced to keep in his employ such
guilty employee. This is unjust.
It is true the Constitution regards labor as "a primary social economic
force."[40] But so does it declare that it "recognizes the indispensable
role of the private sector, encourages private enterprise, and
provides incentives to needed investment."[41] The Constitution bids
the State to "afford full protection to labor."[42] But it is equally true
that "the law, in protecting the rights of the laborer, authorizes neither
oppression nor self-destruction of the employer."[43] And it is
oppression to compel the employer to continue in employment one
who is guilty or to force the employer to remain in operation when it
is not economically in his interest to do so.
In sum, we hold that if in proceedings for reinstatement under Art.
283, it is shown that the termination of employment was due to an
authorized cause, then the employee concerned should not be
ordered reinstated even though there is failure to comply with the 30day notice requirement. Instead, he must be granted separation pay
in accordance with Art. 283, to wit:
In case of termination due to the installation of laborsaving devices or redundancy, the worker affected
thereby shall be entitled to a separation pay
equivalent to at least his one (1) month pay or to at
least one month for every year of service, whichever
is higher. In case of retrenchment to prevent losses
and in cases of closures or cessation of operations
of establishment or undertaking not due to serious
business losses or financial reverses, the separation
pay shall be equivalent to one (1) month pay or at
least one-half (1/2) month pay for every year of
service, whichever is higher. A fraction of at least six
months shall be considered one (1) whole year.
If the employees separation is without cause, instead of being given
separation pay, he should be reinstated. In either case, whether he is
reinstated or only granted separation pay, he should be paid full

backwages if he has been laid off without written notice at least 30
days in advance.
On the other hand, with respect to dismissals for cause under Art.
282, if it is shown that the employee was dismissed for any of the
just causes mentioned in said Art. 282, then, in accordance with that
article, he should not be reinstated. However, he must be paid
backwages from the time his employment was terminated until it is
determined that the termination of employment is for a just cause
because the failure to hear him before he is dismissed renders the
termination of his employment without legal effect.
WHEREFORE, the petition is GRANTED and the resolution of the
National Labor Relations Commission is MODIFIED by ordering
private respondent Isetann Department Store, Inc. to pay petitioner
separation pay equivalent to one (1) month pay for every year of
service, his unpaid salary, and his proportionate 13th month pay and,
in addition, full backwages from the time his employment was
terminated on October 11, 1991 up to the time the decision herein
becomes final. For this purpose, this case is REMANDED to the
Labor Arbiter for computation of the separation pay, backwages, and
other monetary awards to petitioner.
SO ORDERED.
Agabon v. NLRC: Sanctions for Violation of Due Process in Labor

Cases During my tenth year in office, the controversial issue on the
proper sanction to be applied against an employer for dismissing an
employee -- for a just or authorized cause, but without notice -- was
again debated, dissected and ruled upon by the Supreme Court. In
Agabon v. NLRC[1] promulgated on November 14, 2004, the Court
reverted to the doctrine in Wenphil v. National Labor Relations
Commission.[2] According to that doctrine, a dismissal based on a
just cause is legal, even when made without notice to the employee
concerned; but because of the breach of the statutory notice
requirement, the employer must be sanctioned by being made to pay
indemnity -- in this case, nominal damages of P30,000 for each
petitioner. Thus, the Court abandoned Serrano v. NLRC. [3] The
Facts Riviera Home Improvements, Inc., which was in the business
of selling and installing ornamental and construction materials,
employed Petitioners Virgilio Agabon and Jenny Agabon on January
2, 1992, as cornice and gypsum board installers. On February 23,
1999, they were dismissed, without any termination notice, for
allegedly abandoning their work. The Agabons sued their employer
for illegal dismissal and payment of money claims. They filed the
case before the labor arbiter, from whom they scored an initial
victory. On appeal, however, the NLRC found that they had
abandoned their work;[4] hence, they were not entitled to back
wages and separation pay or to the other money claims awarded by
the labor arbiter. This ruling was sustained by the Court of Appeals.
The Issue The main issue before the Supreme Court was whether
the petitioners were illegally dismissed. A corollary one involved the
effects of the dismissal. The Courts Ruling By a vote of 8[5] to 6[6],
the Court, through Mme. Justice Consuelo Ynares-Santiago, held
that there was a just cause for the termination of the employment of
the petitioners, as their abandonment of work had clearly been
established. However, the company did not comply with the twinnotice requirement in Book VI, Rule I, Section 2(d) of the Omnibus
Rules Implementing the Labor Code.[7] This rule mandates the
sending of the with notices to the last known addresses of the
employees.[8] For failing to comply procedural due process, the
employer in this case was directed to pay each petitioner an
indemnity in the form of nominal damages of P30,000. Various

Rulings on Employment Termination In its review and reexamination
of relevant legal principles to clarify the various rulings on
employment termination, the Court recalled that prior to 1989, a
dismissal or termination had been deemed illegal for the employers
failure to give due notice to the employee. But this long-standing rule
was reversed in Wenphil in 1989. In that case it was held that the
dismissed employee, although not given any notice and hearing, was
not entitled to reinstatement and back wages, because the dismissal
was for grave misconduct and insubordination -- a just ground for
termination under Article 282 of the Labor Code. Nonetheless, for
failing to give a formal notice and to conduct an investigation before
dismissing the employee as required by law, the employer in
Wenphil was ordered to pay the dismissed worker an indemnity of
P1,000. The amount of the award, it was then stressed, should
depend on the facts of each case and the gravity of the omission
committed by the employer. This rule thus evolved from Wenphil:
where the employer had a valid reason to dismiss an employee but
did not follow the due process requirement, the dismissal may be
upheld, but the employer must pay an indemnity to the employee.
Wenphil was the prevailing doctrine until it was changed on January
27, 2000 by Serrano. It was held in the latter case that a violation of
the notice requirement in a termination for a just or authorized cause
was not a denial of due process that would nullify the termination.
Rather, such violation would make the dismissal ineffectual and
require the employer to pay full back wages from the time of
termination until a judicial declaration that the dismissal was for a just
or authorized cause. By requiring employers to pay full back wages,
Serrano was intended to provide a deterrent to violations of the
notice requirement better than Wenphil did. Serrano thus confronted
the practice of employers who were wont to dismiss now and pay
later. Nominal Damages for Violation of the Notice Requirement In
Agabon, however, the Court held that Serrano had not considered
the full meaning of Article 279[9] of the Labor Code, which provides
that a termination is illegal only if it is not for any of the just or
authorized causes provided by law. Consequently, the payment of
back wages and other benefits, including reinstatement, is justified
only if the employee was unjustly dismissed. Where the dismissal

was for a just cause, as in Agabon, the Court opined that the better
rule was to abandon the Serrano doctrine and to revert to Wenphil.
Hence, the lack of statutory due process[10] should not nullify the
dismissal or render it illegal or ineffectual. For violation of a statutory
right, the employer should be sanctioned with indemnity or penalty -this time stiffer than that in Wenphil -- so as to discourage the
abhorrent dismiss now, pay later practice. Considering the
prevailing circumstances in this case, nominal damages were fixed
at P30,000 for each petitioner. The Separate Opinions The Puno
Dissent Justice Reynato S. Puno stressed that [t]here are enduring
reasons for resisting Wenphil, its clone Serrano, and now their
offspring Agabon. He said that the ponencia simply retained, if not
diminished, the indemnity granted to the dismissed employees. By
treating an employees right to due process as no more than an
abstract declaration, it disregards the following precepts: 1. A social
justice provision was enshrined in the 1935 Constitution,[11] the
1973 Constitution,[12] and now the 1987 Constitution.[13] 2. Courts
are mandated at all times to give meaning and substance to
constitutional postulates in favor of the workingman. The substantive
rights of workers are not to be weakened by a diminished procedural
right. 3. The Constitution prescribes that employees be on equal
footing with their employers. Thus, [a]s between an employee,
usually poor and unlettered, and the employer, who has resources to
secure able legal advice, the law has reason to demand from the
latter stricter compliance. 4. A doctrine adhered to in a ceaseless
stream of cases holds that violations of the notice requirement in
labor cases constitute constitutional due process infringements, even
if such cases involve private action[14] 5. In conformity with the
protection accorded by the Constitution to labor is the principle that
an employee who is denied procedural due process is entitled to
reinstatement, the one main relief in cases of dismissal without
notice and hearing.[15] 6. Compliance with procedural due process
is not a burden on employers. The rules simply require an employer
to give two notices: (1) a notice before dismissal apprising the
employee being dismissed of the particular acts or omissions for the
dismissal; and (2) a subsequent notice informing the employee of the
decision of the employer to dismiss the former. 7. In the hierarchy of

employees rights, the right to security of tenure is high, if not the
highest. The paramount value of that right is recognized and
guaranteed under the 1987 Constitution. The other complementary
rights are meaningless to an unemployed worker. 8. Workers need
work more than anything else. All persons have the right to work, to
a chance to develop their qualities and their personality in the
exercise of their profession, to equitable remuneration that will
enable them and their families to lead a worthy life on material,
social, cultural and spiritual levels. 9. Simply to allow payment of
nominal damages for a violation of an employees right to due
process is to give undue advantage to the employer. The deprivation
of the right to security of tenure and to due process is beyond
monetary valuation. In closing, Justice Puno explained as follows: In
these times when our lowly workers can hardly maintain body and
soul together due to their meager means, I find it hard to believe that
the majority in Wenphil, in Serrano, and now in the instant case
Agabon, persists in weakening our employee's right to job security.
The stance simply offends a basic principle of justice so entrenched
in our tradition and etched in our conscience. An employee may not
have a torrens title to his job but it is not too much to require that
before he is dismissed by his employer, he should be given a simple
notice of the cause of his dismissal and a summary hearing to
present his side. All our constitutional and statutory precepts on
social justice and the protection of labor will go to naught if we
perpetuate our ruling that a dismissal without the required prior
notice is valid and if we just penalize with the payment of pennies
violations of the employee's right to due process. Without doubt,
Wenphil and Serrano have lengthened the queue of the unemployed.
Agabon will stretch it out even more.
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-45987
May 5, 1939
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CAYAT, defendant-appellant.
Sinai Hamada y Cario for appellant.
Office of the Solicitor-General Tuason for appellee.
MORAN, J.:
Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the
accused, Cayat, a native of Baguio, Benguet, Mountain Province,
was sentenced by the justice of the peace court of Baguio to pay a
fine of five pesos (P5) or suffer subsidiary imprisonment in case of
insolvency. On appeal of the Court of First Instance, the following
information was filed against him:
That on or about the 25th day of January, 1937, in the City of
Baguio, Commonwealth of the Philippines, and within the
jurisdiction of this court, the above-named accused, Cayat,
being a member of the non-Christian tribes, did then and
there willfully, unlawfully, and illegally receive, acquire, and
have in his possession and under his control or custody, one
bottle of A-1-1 gin, an intoxicating liquor, other than the socalled native wines and liquors which the members of such
tribes have been accustomed themselves to make prior to
the passage of Act No. 1639.
Accused interposed a demurrer which was overruled. At the trial, he
admitted all the facts alleged in the information, but pleaded not
guilty to the charge for the reasons adduced in his demurrer and
submitted the case on the pleadings. The trial court found him guilty
of the crime charged and sentenced him to pay a fine of fifty pesos
(P50) or supper subsidiary imprisonment in case of insolvency. The
case is now before this court on appeal. Sections 2 and 3 of Act No.
1639 read:
SEC. 2. It shall be unlawful for any native of the Philippine
Islands who is a member of a non-Christian tribe within the
meaning of the Act Numbered Thirteen hundred and ninetyseven, to buy, receive, have in his possession, or drink any
ardent spirits, ale, beer, wine, or intoxicating liquors of any
kind, other than the so-called native wines and liquors which
the members of such tribes have been accustomed
themselves to make prior to the passage of this Act, except
as provided in section one hereof; and it shall be the duty of
any police officer or other duly authorized agent of the
Insular or any provincial, municipal or township government
to seize and forthwith destroy any such liquors found
unlawfully in the possession of any member of a nonChristian tribe.
SEC. 3. Any person violating the provisions of section one or
section two of this Act shall, upon conviction thereof, be
punishable for each offense by a fine of not exceeding two
hundred pesos or by imprisonment for a term not exceeding
six months, in the discretion of the court.
The accused challenges the constitutionality of the Act on the
following grounds:
(1) That it is discriminatory and denies the equal protection of the
laws;
(2) That it is violative of the due process clause of the Constitution:
and.
(3) That it is improper exercise of the police power of the state.
Counsel for the appellant holds out his brief as the "brief for the nonChristian tribes." It is said that as these less civilized elements of the
Filipino population are "jealous of their rights in a democracy," any
attempt to treat them with discrimination or "mark them as inferior or
less capable rate or less entitled" will meet with their instant
challenge. As the constitutionality of the Act here involved is
questioned for purposes thus mentioned, it becomes imperative to
examine and resolve the issues raised in the light of the policy of the
government towards the non-Christian tribes adopted and
consistently followed from the Spanish times to the present, more
often with sacrifice and tribulation but always with conscience and
humanity.
As early as 1551, the Spanish Government had assumed an
unvarying solicitous attitude toward these inhabitants, and in the
different laws of the Indies, their concentration in so-called
"reducciones" (communities) have been persistently attempted with
the end in view of according them the "spiritual and temporal
benefits" of civilized life. Throughout the Spanish regime, it had been
regarded by the Spanish Government as a sacred "duty to
conscience and humanity" to civilize these less fortunate people
living "in the obscurity of ignorance" and to accord them the "the
moral and material advantages" of community life and the "protection
and vigilance afforded them by the same laws." (Decree of the
Governor-General of the Philippines, Jan. 14, 1887.) This policy had
not been deflected from during the American period. President
McKinley in his instructions to the Philippine Commission of April 7,
1900, said:
In dealing with the uncivilized tribes of the Islands, the
Commission should adopt the same course followed by
Congress in permitting the tribes of our North American
Indians to maintain their tribal organization and government,
and under which many of those tribes are now living in
peace and contentment, surrounded by civilization to which
they are unable or unwilling to conform. Such tribal
government should, however, be subjected to wise and firm
regulation; and, without undue or petty interference, constant
and active effort should be exercised to prevent barbarous
practices and introduce civilized customs.
Since then and up to the present, the government has been

constantly vexed with the problem of determining "those practicable
means of bringing about their advancement in civilization and
material prosperity." (See, Act No. 253.) "Placed in an alternative of
either letting them alone or guiding them in the path of civilization,"
the present government "has chosen to adopt the latter measure as
one more in accord with humanity and with the national conscience."
(Memorandum of Secretary of the Interior, quoted in
Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.) To this
end, their homes and firesides have been brought in contact with
civilized communities through a network of highways and
communications; the benefits of public education have to them been
extended; and more lately, even the right of suffrage. And to
complement this policy of attraction and assimilation, the Legislature
has passed Act No. 1639 undoubtedly to secure for them the
blessings of peace and harmony; to facilitate, and not to mar, their
rapid and steady march to civilization and culture. It is, therefore, in
this light that the Act must be understood and applied.
It is an established principle of constitutional law that the guaranty of
the equal protection of the laws is not equal protection of the laws is
not violated by a legislation based on reasonable classification. And
the classification, to be reasonable, (1) must rest on substantial
distinctions; (2) must be germane to the purposes of the law; (3)
must not be limited to existing conditions only; and (4) must apply
equally to all members of the same class. (Borgnisvs. Falk Co., 133
N.W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55
Law. ed., Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People
and Hongkong & Shanghai Banking Corporation vs. Vera and Cu
Unjieng, 37 Off. Gaz ., 187.)
Act No. 1639 satisfies these requirements. The classification rests on
real and substantial, not merely imaginary or whimsical, distinctions.
It is not based upon "accident of birth or parentage," as counsel to
the appellant asserts, but upon the degree of civilization and culture.
"The term 'non-Christian tribes' refers, not to religious belief, but, in a
way, to the geographical area, and, more directly, to natives of the
Philippine Islands of a low grade of civilization, usually living in tribal
relationship apart from settled communities." (Rubi vs. Provincial
Board of Mindoro, supra.) This distinction is unquestionably
reasonable, for the Act was intended to meet the peculiar conditions
existing in the non-Christian tribes. The exceptional cases of certain
members thereof who at present have reached a position of cultural
equality with their Christian brothers, cannot affect the
reasonableness of the classification thus established.
That it is germane to the purposes of law cannot be doubted. The
prohibition "to buy, receive, have in his possession, or drink any
ardent spirits, ale, beer, wine, or intoxicating liquors of any kind,
other than the so-called native wines and liquors which the members
of such tribes have been accustomed themselves to make prior to
the passage of this Act.," is unquestionably designed to insure peace
and order in and among the non-Christian tribes. It has been the sad
experience of the past, as the observations of the lower court
disclose, that the free use of highly intoxicating liquors by the nonChristian tribes have often resulted in lawlessness and crimes,
thereby hampering the efforts of the government to raise their
standard of life and civilization.
The law is not limited in its application to conditions existing at the
time of its enactment. It is intended to apply for all times as long as
those conditions exist. The Act was not predicated, as counsel for
appellant asserts, upon the assumption that the non-Christians are
"impermeable to any civilizing influence." On the contrary, the
Legislature understood that the civilization of a people is a slow
process and that hand in hand with it must go measures of protection
and security.
Finally, that the Act applies equally to all members of the class is
evident from a perusal thereof. That it may be unfair in its operation
against a certain number non-Christians by reason of their degree of
culture, is not an argument against the equality of its application.
Appellants contends that that provision of the law empowering any
police officer or other duly authorized agent of the government to
seize and forthwith destroy any prohibited liquors found unlawfully in
the possession of any member of the non-Christian tribes is violative
of the due process of law provided in the Constitution. But this
provision is not involved in the case at bar. Besides, to constitute due
process of law, notice and hearing are not always necessary. This
rule is especially true where much must be left to the discretion of
the administrative officials in applying a law to particular cases.
(McGehee, Due Process of Law p. 371, cited with approval in
Rubivs. Provincial Board of Mindoro, supra.) Due process of law
means simply: (1) that there shall be a law prescribed in harmony
with the general powers of the legislative department of the
government; (2) that it shall be reasonable in its operation; (3) that it
shall be enforced according to the regular methods of procedure
prescribed; and (4) that it shall be applicable alike to all citizens of
the state or to all of the class. (U.S. vs. Ling Su Fan, 10 Phil., 104,
affirmed on appeal by the United States Supreme Court, 218 U.S.,
302: 54 Law. ed., 1049.) Thus, a person's property may be seized by
the government in payment of taxes without judicial hearing; or
property used in violation of law may be confiscated (U.S. vs. Surla,
20 Phil., 163, 167), or when the property constitutes corpus delicti,
as in the instant case (Moreno vs. Ago Chi, 12 Phil., 439, 442).
Neither is the Act an improper exercise of the police power of the
state. It has been said that the police power is the most insistent and
least limitable of all powers of the government. It has been aptly
described as a power co-extensive with self-protection and
constitutes the law of overruling necessity. Any measure intended to
promote the health, peace, morals, education and good order of the
people or to increase the industries of the state, develop its
resources and add to its wealth and prosperity (Barbier vs. Connolly,
113 U.S., 27), is a legitimate exercise of the police power, unless
shown to be whimsical or capricious as to unduly interfere with the
rights of an individual, the same must be upheld.
Act No. 1639, as above stated, is designed to promote peace and
order in the non-Christian tribes so as to remove all obstacles to their
moral and intellectual growth and, eventually, to hasten their
equalization and unification with the rest of their Christian brothers.
Its ultimate purpose can be no other than to unify the Filipino people
with a view to a greater Philippines.
The law, then, does not seek to mark the non-Christian tribes as "an
inferior or less capable race." On the contrary, all measures thus far
adopted in the promotion of the public policy towards them rest upon
a recognition of their inherent right to equality in tht enjoyment of

those privileges now enjoyed by their Christian brothers. But as there
can be no true equality before the law, if there is, in fact, no equality
in education, the government has endeavored, by appropriate
measures, to raise their culture and civilization and secure for them
the benefits of their progress, with the ultimate end in view of placing
them with their Christian brothers on the basis of true equality. It is
indeed gratifying that the non-Christian tribes "far from retrograding,
are definitely asserting themselves in a competitive world," as
appellant's attorney impressively avers, and that they are "a virile,
up-and -coming people eager to take their place in the world's social
scheme." As a matter of fact, there are now lawyers, doctors and
other professionals educated in the best institutions here and in
America. Their active participation in the multifarious welfare
activities of community life or in the delicate duties of government is
certainly a source of pride and gratification to people of the
Philippines. But whether conditions have so changed as to warrant a
partial or complete abrogation of the law, is a matter which rests
exclusively within the prerogative of the National Assembly to
determine. In the constitutional scheme of our government, this court
can go no farther than to inquire whether the Legislature had the
power to enact the law. If the power exists, and we hold it does exist,
the wisdom of the policy adopted, and the adequacy under existing
conditions of the measures enacted to forward it, are matters which
this court has no authority to pass upon. And, if in the application of
the law, the educated non-Christians shall incidentally suffer, the
justification still exists in the all-comprehending principle of salus
populi suprema est lex. When the public safety or the public morals
require the discontinuance of a certain practice by certain class of
persons, the hand of the Legislature cannot be stayed from providing
for its discontinuance by any incidental inconvenience which some
members of the class may suffer. The private interests of such
members must yield to the paramount interests of the nation (Cf.
Boston Beer Co. vs. Mass., 97 U.S., 25; 24 law. ed., 989).
Judgment is affirmed, with costs against appellant.
OPINIONS BELOW The opinion of the Ninth Circuit (Pet. 12a-69a) is

reported at 478 F.3d 985.1 The April 8, 2004 opinion of the District
Court, granting in part and denying in part Respondents summary
judgment motion (JA 13), is available at 2004 WL 792790. The
September 14, 2004 opinion of the District Court, denying
Respondents second summary judgment motion judgment (JA 49),
is available at 2004 WL 2066748. The judgment of the District Court
(Pet. 8a-11a) is not reported.2 JURISDICTION The Ninth Circuit
denied Petitioners petition for rehearing and rehearing en banc on
July 12, 2007. Pet. 70a-71a. The certiorari petition was timely filed
on October 5, 2007. This Court has jurisdiction under 28 U.S.C.
1254(1). APPLICABLE CONSTITUTIONAL PROVISION The
Fourteenth Amendment provides, in pertinent part: [N]or shall any
state . . . deny to any person within its jurisdiction the equal
protection of the laws. 1 The Ninth Circuit dismissed the Oregon
Department of Agriculture from the appeal. Respondents herein
refers to Joseph Hyatt and John Szczepanski, unless otherwise
indicated. 2 ER is Respondents Excerpts of Record in the Ninth
Circuit. SER is Petitioners Supplemental Excerpts of Record in the
Ninth Circuit. 2 STATEMENT A. B. Overview Petitioner Anup
Engquist worked at the Oregon Department of Agriculture. Her
complaint claimed, inter alia, that Respondents Joseph Hyatt and
John Szczepanski caused her to lose her job for arbitrary, vindictive,
and malicious reasons in violation of the Equal Protection Clause.
JA 10, 26. This claim was made under the class-of-one doctrine.
See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per
curiam). Following trial, the jury found that Respondents had
intentionally treated Engquist differently than others similarly
situated . . . without any rational basis and solely for arbitrary,
vindictive, or malicious reasons. Pet. 3a-4a. The Ninth Circuit
reversed, holding that the Equal Protection Clause does not protect
classes of one in public employment. Id. at 19a-27a. Facts Anup
Engquist is a woman born in India.3 In December 1992, she was
hired by the Oregon Department of Agriculture (ODA) to work as an
international food standards specialist in the Export Service Center
(ESC), a laboratory within ODAs Laboratory Services Division
(LSD). Pet. 14a-15a. The ESC is one of two laboratories in the
LSD, and the LSD is one of ten ODA divisions.4 3 The facts set forth
are taken from the extensive record of the eleven-day jury trial. 4
Established in 1990, the ESC was initially funded by grants with the
expectation that it would become self-sustaining, a goal it reached in
two years. Under Corristan and Engquist, ESC was highly
successful, SER 212-13, generating a profit for the State in excess of
$250,000 in 18 months. After Corristan and 3 Engquist was hired by
Norma Corristan, the LSD administrator and a Mexican-American.
The ESC manager reported to Corristan. Engquists job was to
generate business for the ESC and to consult with the ESCs
customers, companies that export food overseas. Engquist
developed an international database of food additives, laws, and
regulations; marketed the ESCs services, which included testing and
certifying exported goods and providing consulting services for
customers; and created food safety training and scientific exchange
programs. ER 131- 34. Respondent Joseph Hyatt was hired in 1990
as a chemist and made it difficult for Engquist to do her job. He did
not communicate with her or give her information necessary for her
job, and made false, derogatory statements about her to others. SER
163- 64. Hyatt took it upon himself to monitor her, even following her
when she went to the ladies room. Id. at 166. He told other
employees she was absent from her work location when she was
present and that she lied on time sheets. Id. Hyatt conceded that he
made false, derogatory statements to others about Engquist. Id. at
254. In response, Corristan initiated disciplinary action against Hyatt.
She required him to attend anger management and diversity training
programs. Corristan testified that Hyatt told her that it made him
angry to have to go. SER 194. Afterwards, Corristan heard Hyatt
comment that Engquist did not do anything, did not work, did not
show up for work, and that whatever she did was Engquist were
terminated, ESCs operation generated a loss to the State in excess
of $662,000. SER 155-57. 4 insignificantall claims Corristan
believed were false. SER 195-96. In December 1999, when the
incumbent ESC manager left, Hyatt asked Corristan to promote him
to that position. Corristan refused on the ground that he was unready
to be a manager. SER 197. Denied promotion to be ESC manager a
second time, Hyatt transferred from the LSD to the Administrative
Services Division to work as a systems analyst in Information

Services. Hyatt continued to work in the same building as Engquist,
and to torment her. Respondent John Szczepanski became ODAs
Assistant Director in 2001, and oversaw the LSD. Pet. 15a. At the
time, about thirty employees worked in the LSD, including about
thirteen in the ESC. Trial Tr. Vol. 5, 15:6-10; id. at 16:23-17:2. In
June 2001, Szczepanski removed the ESC from Corristans
supervision and assumed control of the laboratory. Szczepanski
contemporaneously told a customer that Corristan and Engquist
would be gotten rid of. SER 181-82. In September 2001, Hyatt told
a coworker that Szczepanski had asked him to prepare a personnel
plan and that the two of them were working on getting rid of Norma
and Anup. Id. at 188-89. Hyatt said the plan was confidential
because he did not know whom to trust. Id. Hyatt then sent
Szczepanski an email urging him to sharply limit Corristans and
Engquists duties. He told Szczepanski to remove Corristan from all
ESC responsibilities and to eliminate Engquists management
responsibilities. Hyatt even wrote a draft letter for Szczepanski to
send to Corristan, advising Szczepanski to put it into your own
words. SER 139. Szczepanski did as Hyatt suggested. These 5
communications are remarkable because at the time Hyatt did not
work for LSD. Id. at 221-22, 259-60. Meanwhile, since December
1999, Corristan, Engquist, and one other employee had jointly
assumed the duties of the departed ESC manager. After assuming
control of the ESC, Szczepanski moved to fill the position. Hyatt,
Engquist, and a third employee applied for the position. Szczepanski
chose Hyatt, ignoring the recommendation of an independent expert
and deviating from the list of official interview questions, effective
October 2001. Trial Tr. Vol. 6B, 31:15-21; id. at 32:7-13; Trial Tr. Vol.
4B, 91:13-92:11; Pls. Exs. 30-31. Almost immediately upon his
appointment, Hyatt began curtailing Engquists duties, excessively
monitoring her performance and circulating false statements and
innuendo to others. For example, Hyatt twice lied, telling a coworker
that Enqgust was falsifying her time cards. He sent emails falsely
implying that Engquist was spending work-time doing crossword
puzzles, suggesting that she was abusing sick leave, and insinuating
that she was using state resources to start a private business.5 SER
143-49. Szczepanski and Hyatt ultimately eliminated Corristans and

Engquists positions. Szczepanski dismissed Corristan in December
2001 and Engquist in February 2002. They claimed that their actions
were taken for budgetary reasons, but Engquist introduced evidence,
which the jury credited, that 5 Engquist introduced a mountain of
venomous writings and emails by Szczepanski and Hyatt expressing
their antipathy toward her and Corristan. These statements were
made both before and after Hyatt's promotion. A sampling is found at
SER 139-57. 6 this was not a credible or rational justification for
dismissing her and Corristan rather than others in LSD. Pursuant to
her collective bargaining agreement, Engquist was given the
opportunity to bump into another position at her level, but she was
found unqualified for the only other such position. She declined to
move to a position below her level. In sum, Szczepanski gave Hyatt
the promotion that Corristan had denied him, and Hyatt and
Szczepanski terminated both Corristan, who had disciplined Hyatt,
and Engquist, who had been a thorn in Hyatts side for years. Across
ODAs ten divisions, Corristan and Engquist were the only fulltime
employees who lost their jobs during this period (though other
employees were subsequently dismissed). Referring by name to
Corristan and Engquist, Hyatt afterward stated that he couldnt
afford to get rid of any more female minorities because he had
already gotten rid of two. SER 185. C. District Court Proceedings In
December 2002, Engquist filed this action, naming as defendants the
ODA, Szczepanski, and Hyatt, and asserting a number of claims.6
As part of her equal protection claim, Engquist alleged that
Szczepanski and Hyatt had taken adverse employment actions
against her for arbitrary, 6 She alleged harassment, discrimination
and retaliation against ODA based on race, color, sex, and/or
national origin in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e-2(a), 2000e-3(a). She further claimed that Hyatt
and Szczepanski engaged in discrimination based on race, color,
sex, national origin, and/or for arbitrary, and malicious reasons in
violation of the Equal Protection Clause. She also set forth claims
under 42 U.S.C. 1981, the Due Process Clause, and based on the
tort of intentional interference with contract. JA 5- 12. 7 vindictive,
and malicious reasons in violation of the Equal Protection Clause.
JA 10. After discovery, Respondents moved for summary judgment.

Their motion did not address Engquists class-of-one claim. In April
2004, the District Court granted Respondents motion in part and
denied it in part.7 Respondents subsequently filed a motion for
partial summary judgment on the class-of-one claim. In response,
Engquist argued that, among their approximately 30 LSD coworkerswhom Engquist presented as the relevant comparators for
purposes of her class-of-one claimonly she and Corristan were
targeted for elimination for arbitrary, malicious and vindictive
reasons. The District Court denied Respondents motion: Under the
theory urged by plaintiff, she must show that she was singled out as
a result of animosity on the part of Hyatt and Szczepanski. To do so,
she must show that their actions were spiteful efforts to punish her
for reasons unrelated to any legitimate state objective. As with any
equal protection claim, plaintiff must also demonstrate that she was
treated differently than others who were similarly situated . . . . Hyatt
was allegedly working on a plan with Szczepanski to terminate
plaintiffs position. . . . . There is evidence that plaintiff performed her
job 7 The District Court dismissed that portion of Engquists Title VII
and equal protection claims alleging unlawful harassment. As to her
1981 claim, the court dismissed the portion alleging violations
based on her gender. As to her due process claim, the court
dismissed the portion alleging violations of procedural due process.
The court denied the remainder of the motion. JA 13- 48. 8
satisfactorily and that her termination was not the result of
reorganization or budgetary cuts. Based on this same evidence,
there are genuine issues of fact as to whether plaintiff was singled
out as a result of animosity on the part of Hyatt and Szczepanski,
thereby violating her equal protection rights. Accordingly, the court
concludes that plaintiffs class of one theory survives and
defendants motion is denied. JA 58-59 (citations omitted).
Engquists case proceeded to an eleven-day trial. At the close of the
evidence, the District Court instructed the jury: To bring a successful
Equal Protection claim under the class of one doctrine, Plaintiff
must prove that defendants treated her differently than others
similarly situated. Second, that the different treatment caused the
denial of Plaintiffs promotion, the exercise of her bumping rights or
the termination of her employment. Third, that no rational basis

exists for the difference in treatment. And fourth, that Defendant took
these actions for arbitrary, vindictive, or malicious reasons. JA 63-64.
The jury unanimously returned a verdict for Engquist on her class-ofone claim. The jury also returned verdicts for Engquist on her
substantive due process and intentional interference with contract 9
claims. Finally, the jury also rejected Respondents qualifiedimmunity defense. Pet. 1a-6a.8 D. Appeal In a 2-1 decision, the
Ninth Circuit reversed, holding that the class-of-one equal protection
theory is not applicable to decisions made by public employers. Pet.
19a. The majority (Tashima and Graber, JJ.) began by offering a
distinction between the government acting as a proprietor managing
its own internal affairs and as a sovereign making and applying laws
and rules to private parties. Id. at 23a- 24a. After noting limits on
public employee rights under the First and Fourth Amendments, the
majority concluded that [t]he class-of-one theory of equal protection
is another area of law where the rights of public employees should
not be as expansive as the rights of ordinary citizens. Pet. 25a. The
court did not reach the other grounds for Respondents appeal (e.g.,
the sufficiency of the evidence as to similarly situated employees,
and qualified immunity). Judge Reinhardt dissented. First, he stated
that he would have adopted the approach of every other circuit to
consider the issue. Pet. 60a-61a. Second, he explained why the
majoritys failure to allow class- 8 Before Engquists trial in federal
court, Corristan sued Respondents in Multnomah County Circuit
Court. In November 2003, the jury awarded Corristan $1.1 million in
damages. SER 158. The jury found for Corristan, inter alia, on her
claims that Hyatt and Szczepanski violated her equal protection
rights through different treatment without a rational basis for
arbitrary, vindictive, or malicious reasons; that Hyatt discriminated
against Corristan on the basis of gender or ethnicity; and that Hyatt
intentionally interfered with Corristans employment. 10 of-one claims
in public employment was inconsistent with precedent. Id. at 61a62a. Third, he demonstrated that the majoritys concern that the
doctrine would eliminate at-will employment was misplaced,
explaining that at-will employment did not mean that the government
may freely treat its employees maliciously and irrationally. Id. at
61a- 62a. Fourth, he showed that the other circuits had avoided a
flood of litigation by applying principles that cabined the application
of the claim. Id. at 65a. SUMMARY OF ARGUMENT I. The Equal
Protection Clause contains one simple command: No state shall
deny to any person within its jurisdiction the equal protection of the
laws. U.S. Const. amend. XIV, 1 (emphasis added). These
majestic words mean what they say. The Clause does not limit its
mandate to discrete or insular minorities, fundamental rights, or
suspect classifications; it protects persons. This Court has
recognized this principle from its pronouncement in Missouri v.
Lewis, 101 U.S. 22, 31 (1879), that the Clause means that no
person or class of persons shall be denied the same protection, to
its holding in Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam), that a violation of the Clause can exist if a single
plaintiff alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational basis for
the difference in treatment. In holding that the class-of-one theory
of equal protection is inapplicable to decisions made by public
employers with regard to their employees, (Pet. 19a), the divided
panel below not only ignored the Constitutions plain text and its
interpretation by this Court, it also jettisoned a cardinal rule of 11
constitutional law. Instead of tailoring a public employees
constitutional right to fit the context, the panel simply decreed that
the right did not exist. The panel thereby rejected this Courts
approach to public employment, in areas as diverse as free speech,
search and seizure, and due process. In each of these areas, this
Court has been careful to ensure that citizens are not deprived of
fundamental rights by virtue of working for the government. Connick
v. Myers, 461 U.S. 138, 147 (1983). For this reason alone, the
decision below should be reversed. II. Reversal is appropriate for
another reason specific to the Equal Protection Clause. This Court
has repeatedly held that strict scrutiny review is appropriate for
racial classifications in the public employment context. It has not
distinguished between the public employment and all other settings
in the application of strict scrutiny. Yet the Ninth Circuit has now held
that a central aspect of the Equal Protection Clause, rational-basis
scrutiny, protects only some public employees, some of the time.
There are not two Equal Protection Clauses, one for the population
at large (providing both strict scrutiny and rational-basis review) and
another for public employees (providing only the former). The divided
panel below erred in concluding otherwise. Under the Constitutions
text and this Courts doctrine, there is nothing unique about equal
protection claims brought by a small group or a single individual, a
so-called class of one. If a state legislature enacted a law that
singled out a public employee for unequal treatment without any
rational basis, that law would violate the Clause despite the
narrowness of its application and this Courts trust in the democratic
process to remedy imprudent legislative measures. If a state actor
intentionally 12 singles out a public employee for unequal treatment
without a rational basis, that decision violates the Clause as well. III.
In practice, the weighty burden a plaintiff must shoulder under
rational-basis review effectively limits successful class-of-one claims
against public employers. In light of the wide range of legitimate
government objectives in the workplace, public employers will
usually be able to proffer a rational basis for their differential
treatment of an employee. Nine circuit courts have recognized classof-one claims for public employees. None has faced the flood of
litigation or the parade of horribles imagined by the divided panel
below which rewrote the Constitution on grounds of policy. Instead,
these courts of appeals have weeded out insubstantial equal
protection claims simply by following this Courts time-honored
approach. To succeed, a class-of-one plaintiff must establish that
she has been intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in
treatment. Olech, 528 U.S. at 564. The Courts standard places
significant burdens on a plaintiff. She must prove that (1) the public
employer acted intentionally; (2) she was treated differently from
other similarly situated employees; and (3) the difference in
treatment was not rationally related to any legitimate government
objective. Although Olech does not require that a class-of-one
plaintiff allege that the unequal treatment he received was the result
of animus or vindictiveness, several courts of appeals have observed
that a plaintiff may need to establish one of these factors to surmount
rational basis review. For example, animus may be necessary to
show that the 13 governments unequal treatment was intentional, or

that the plaintiff was treated differently from similarly situated
employees, or that the government can offer no rational basis for its
classification of the employee. The application of the rational basis
test to class-ofone employment plaintiffs by nine different courts of
appeals has fulfilled the Clauses guarantee without unduly
burdening everyday decisions of government employers. Although
class-of-one suits by public employees rarely succeed, in this case a
jury specifically found that Engquist carried the burden of proving
that the Respondents: (1) intentionally, (2) treated her differently
than others similarly situated; (3) without any rational basis, and
(4) solely for arbitrary, vindictive, or malicious reasons. (Pet. 3a4a.) The jurys unanimous judgment should be respected. Equal
protection rights should notand need not be categorically
withdrawn in the public employment setting. The proper path is to
leave room for courts to apply the set of tested rules that have
proven successful in discouraging frivolous cases, while permitting
meritorious ones. Finally, the Court of Appeals suggestion that
following the Constitution might open floodgates is even more
attenuated than that argument was in Olech. Government officials
make millions of zoning and licensing decisions each year, and there
has been no flood of class-of-one claims in those contexts. And, as
noted, no flood of such claims burdens government employers in the
circuits where such claims are allowed. This experience, while not
directly relevant to the interpretation of constitutional text, is yet
another reason why this Court should reject the speculative
reasoning of the Ninth Circuit here. 14 ARGUMENT I. A. THE
FOURTEENTH AMENDMENT PROHIBITS STATE ACTORS FROM
DISCRIMINATING AGAINST INDIVIDUALS WITHOUT A
RATIONAL BASIS. The Text of the Equal Protection Clause Protects
All Persons From Unequal Treatment. The Equal Protection Clause
is simple, clear, and direct: No state shall . . . deny to any person
within its jurisdiction the equal protection of the laws. U.S. Const.
amend. XIV, 1 (emphasis added). The text does not limit itself to
certain classes, nor does it exempt public employers from its
command. Whoever the state actor and whatever the state action,
the Clause demands that government treat all similarly situated
persons equally unless there is a rational basis for doing otherwise.

See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562, 564-65
(2000) (per curiam); Wade v. United States, 504 U.S. 181, 185-87
(1992); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). The Equal Protection Clause thus protect[s] persons, not
groups. Adarand Constructors, Inc. v. Pea, 515 U.S. 200, 227
(1995) (emphasis omitted); see also Shelley v. Kraemer, 334 U.S. 1,
22 (1948) (The rights created by . . . the Fourteenth Amendment
are, by its terms, guaranteed to the individual. The rights established
are personal rights.). The Clause prohibits the government from
singling out individuals for harsh treatment without a rational basis,
even if no other person falls within the same classification. Olech,
528 U.S. at 564-65. In short, as this Court recently reaffirmed in
Olech, 15 the text contemplates that an individual may bring a claim
as a class of one. Id. B. The History of the Equal Protection Clause
Demonstrates That the Clause Was Originally Understood To
Protect Individual Persons, Not Just Classes. Olechs understanding
that the Equal Protection Clause protects individuals from
discrimination by a state actor is supported by that Clauses history.
The Fourteenth Amendment was enacted in large part to support
and validate the Civil Rights Act of 1866, ch. 31, 14 Stat. 27, which
declared that all persons born in the United States . . . are hereby
declared to be citizens of the United States and that such citizens,
of every race and color, . . . shall have the same right as others to
make and enforce contracts and enjoy the full and equal benefit of
all laws and proceedings for the security of person and property. Id.
1. The Civil Rights Act had been passed under the Thirteenth
Amendment, which authorized Congress to enforce the constitutional
prohibition on slavery through legislation. Cong. Globe, 39th Cong.,
1st Sess. 474, 1124 (1866) (statements of Sen. Trumbull and Rep.
Cook); see U.S. Const. amend. XIII, 2. However, when some
legislators expressed doubt that the Act could reasonably be
construed as a remedy against slavery, its proponents responded by
advancing the Fourteenth Amendment, with its broader guarantee of
equal protection for all. Cong. Globe, 39th Cong., 1st Sess. 1294,
2465 (1866) (statements of Rep. Wilson and Rep. Thayer); see also
Hurd v. Hodge, 334 U.S. 24, 32-33 (1948). After adoption of the
Amendment, Congress extended the Civil Rights Acts protections

not only to citizens, of every race and color, 1866 Act 1, but to all
persons, Enforcement Act of 1870, ch. 114, 16 16 Stat. 140, 16.
This change reflects a broad conception of the Clause as a
guarantor of personal rights against all forms of invidious
discrimination. See United States v. Wong Kim Ark, 169 U.S. 649,
695 (1898). Statements by the Framers underscore the original
understanding that the Clause protects individuals against
discriminatory treatment. Representative John Bingham, the principal
architect of the Clause, emphasized that the constitutional right is
personal and extends to every man. Cong. Globe, 39th Cong., 1st
Sess. 1094 (1866). This Courts decisions, starting from its earliest
pronouncements, have consistently embraced these principles.
Missouri v. Lewis, 101 U.S. 22 (1879), which concerned a challenge
to state court jurisdictional restrictions, emphasized that the Equal
Protection Clause protects both persons and classes of persons.
Id. at 30. The Clause means that no person or class of persons shall
be denied the same protection of the laws which is enjoyed by other
persons or other classes in the same place and under like
circumstances. Id. at 31. Similarly, in Barbier v. Connolly, 113 U.S.
27 (1884), the Court held that the Clause undoubtedly intended . . .
that equal protection and security should be given to all under like
circumstances in the enjoyment of their personal and civil rights; that
all persons should be equally entitled to pursue their happiness and
acquire and enjoy property; . . . that no impediment should be
interposed to the pursuits of any one except as applied to the same
pursuits by others under like circumstances. . . . Id. at 31. 17 The
Court made the same point in Atchinson, Topeka & Santa Fe R.R. v.
Mathews, 174 U.S. 96, 104-05 (1899): [T]he equal protection
guarantied by the constitution forbids the legislature to select a
person, natural or artificial, and impose upon him or it burdens and
liabilities which are not cast upon others similarly situated. . . .
Neither can it make a classification of individuals or corporations
which is purely arbitrary. . . . Neither Lewis nor Barbier nor Atchinson
uses the phrase class of one, but all recognize the underlying
principle that individuals, not just classes, are entitled to equal
protection. C. The Fourteenth Amendment Protects Individuals From
Unequal Treatment by State Officials and Agencies. This Court

made clear early on that the Equal Protection guarantee protects
against discrimination arising not only from a legislative act but also
from the conduct of an administrative official. Ex parte Virginia, 100
U.S. 339, 347 (1880), held that the Fourteenth Amendment must
mean that no agency of the State, or of the officers or agents by
whom its powers are exerted, shall deny to any person within its
jurisdiction the equal protection of the laws. Yick Wo v. Hopkins, 118
U.S. 356 (1886), found that although the law at issue in the case was
fair on its face, and impartial in appearance, it had been applied
and administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances. Id. at 373-74. 18 At the
start of the next century, the Court expressly found the Fourteenth
Amendment applicable to all state officials: The provisions of the
14th Amendment are not confined to the action of the state through
its legislature, or through the executive or judicial authority. Those
provisions relate to and cover all the instrumentalities by which the
state acts, and so it has been held that whoever, by virtue of public
position under a state government, deprives another of any right
protected by that amendment against deprivation by the state,
violates the constitutional inhibition; and as he acts in the name of
the state and for the state, and is clothed with the states powers, his
act is that of the state. Raymond v. Chicago Union Traction Co., 207
U.S. 20, 35-36 (1907). In Sunday Lake Iron Co. v. Wakefield
Township, 247 U.S. 350 (1918), and Sioux City Bridge Co. v. Dakota
County, 260 U.S. 441 (1923), the Court held that higher tax
assessments imposed by state officials against a single company,
but not against similarly situated businesses, would violate the
companys right to equal protection if the disparate treatment was
intentional and arbitrary. Sunday Lake, 247 U.S. at 352; accord
Sioux City, 260 U.S. at 445-47; see also McFarland v. Am. Sugar
Ref. Co., 241 U.S. 79, 86 (1916). Likewise, in Snowden v. Hughes,
321 U.S. 1 (1944), the Court recognized that unequal application of
an otherwise neutral law constitutes a denial of equal protection if it
intentionally targets a particular class or person or if the state
official has a discriminatory design to favor one individual or class
over another. Id. at 8. For the Fourteenth Amendment does not

permit a state to deny the equal 19 protection of its laws because
such denial is not wholesale. Id. at 15 (Frankfurter, J., concurring).
More recently, in Allegheny Pittsburgh Coal v. County Commission,
488 U.S. 336, 345-46 (1989), this Court held that state officials
imposition on a landowner of an increased tax burden, not shared by
similarly situated landowners, violated equal protection even though
the governing statute was neutral on its face. See also Hillsborough
v. Cromwell, 326 U.S. 620, 623 (1946); Nordlinger v. Hahn, 505 U.S.
1, 16 n.8 (1992) (the protections of the Equal Protection Clause are
[not] any less when the classification is drawn by legislative mandate
. . . than by administrative action . . . .); cf. Esmail v. Macrane, 53
F.3d 176, 180 (7th Cir. 1995) (Posner, J.) (A class of one is likely to
be the most vulnerable of all.). This Courts protection of individuals
from discriminatory treatment by government officials has extended
well beyond the realms of regulation and taxation. For example, in
Wade, 504 U.S. 181, a criminal defendant claimed that the
prosecutor violated his right to equal protection by failing to move for
a reduction in sentence in light of his cooperation. While the Court
acknowledged that prosecutors must have wide discretion in such
decisions, the Court held the defendant entitled to relief if the
prosecutors refusal to move was not rationally related to any
legitimate Government end. Id. at 186. Notwithstanding the obvious
potential for abuse, the Court held that the same equal protection
analysis in Sioux City and Allegheny Pittsburgh should apply to
cases in other contexts raising a class-of-one claim, even when the
government has extremely broad discretion and even when litigants
possess the most obvious incentives to litigate. 20 All these
decisions stand for the proposition reflected in the constitutional
text, contemplated by its Framers, and understood consistently by
this Courtthat the Equal Protection Clause reaches all forms of
alleged discrimination by state actors, whether premised on
disparate classification of a group or discrimination against a single
individual. Olech and Subsequent Precedent Follow From the Text
and History of the Fourteenth Amendment. D. Olechs holding flowed
inexorably from the Constitutions text, its original meaning, and this
Courts long history of protecting individuals against unequal
treatment by state actors. The plaintiffs in Olech were homeowners

who claimed that the local governments demand for a 33-foot
easement over their property in exchange for a municipal water
connection, when other homeowners had been required to provide
only a 15-foot easement to receive such services, violated the Equal
Protection Clause. 528 U.S. at 563. They alleged that the
municipalitys differential treatment of them was irrational and wholly
arbitrary, and motivated by ill will, occasioned by prior litigation
involving the parties. Id. The plaintiffs did not, however, assert
membership in a particular group or suggest that the discrimination
at issue resulted from a broadly applicable invidious classification. Id.
at 563-64. This Court upheld the claim. Id. at 564-65. In a per curiam
opinion, citing Sioux City and Allegheny Pittsburgh, it stated: Our
cases have recognized successful equal protection claims brought
by a class of one, where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment. Id. Whether
the complaint 21 alleges a class of one or of five is of no
consequence because we conclude that the number of individuals in
a class is immaterial for equal protection analysis. Id. at 564 n.*.
Because the complaint in Olech alleged intentionally disparate
treatment, which was objectively irrational and wholly arbitrary, this
Court allowed the plaintiffs to proceed. Id. Olech represents the
logical application of this Courts settled precedents. Cases from
Atchinson through Sioux City to Wade recognized that whatever the
context, intentionally disparate treatment of an individual, no less
than discriminatory classification of a group, violates the Equal
Protection Clause if it is not rationally related to legitimate state
goals. Olech simply applied these principles and selected a phrase
to describe them: class of one. See Cobb v. Pozzi, 363 F.3d 89,
111 (2d Cir. 2003) ([T]he Supreme Court did not depart from well
settled equal protection principles in Olech. Rather, the Olech Court
merely reaffirmed that equal protection claims can be brought by a
class of one. (citations omitted)). In accordance with Olech and its
predecessors, the courts of appeals have applied the class-of-one
doctrine in a range of contexts. For example, they have applied it to
claims by a family alleging that complaints of harassment were
ignored because the dispute involved a friend of the police, DeMuria

v. Hawkes, 328 F.3d 704 (2d Cir. 2003); by an individual banned
from public gatherings for allegedly lewd dancing when other
dancers were allowed to stay, Willis v. Town of Marshall, 426 F.3d
251 (4th Cir. 2005); by a landowner denied a construction permit
when permits were granted to others, Bell v. Duperrault, 367 F.3d
703 (7th Cir. 2004); and by a real estate developer allegedly denied
building 22 approvals, Campbell v. Rainbow City, 434 F.3d 1306
(11th Cir. 2006). None of these opinions even questions whether the
Equal Protection Clause applies, despite differences in context from
Olech. None requires that the plaintiff allege membership in a
particular class or group. Rather, all recognize that a valid class-ofone claim arises when the plaintiff is treated differently from others
who are similarly situated in relevant respects without a rational
basis. Nine different circuits have applied rational-basis scrutiny to
class-of-one claims in the public employment context in the wake of
Olech.9 Indeed, some circuits recognized class-of-one claims in the
public employment context years before Olech.10 These decisions
adhere to the long-established principle that the Equal Protection
Clause applies to all forms of discrimination, whatever the context
and whoever the actor.
Of course, the Clause will be applied differently in different contexts.
Employment decisions are influenced by a host of considerations not
applicable in other circumstances, meaning that in practice it will
likely be more difficult to prove a lack of rational basis for an
employment decision. See infra Part III. But, regardless of how the
Clause applies, it always applies. In any context, whether zoning or
criminal prosecution or public employment, the Equal Protection
Clause prohibits intentional discrimination against an individual that
lacks a rational basis. Olech, 528 U.S. at 564; Wade, 504 U.S. at
185-87. As we now demonstrate, the Ninth Circuit erred in holding
that public employees, alone among those subject to state action,
may intentionally be discriminated against without any rational basis
for the differentiation whatsoever. II. PUBLIC EMPLOYERS ARE
STATE ACTORS AND PUBLIC EMPLOYEES ARE PERSONS
ENTITLED TO EQUAL PROTECTION OF THE LAWS. There is no
circumstance in which a person absolutely loses his or her rights
under the Fourteenth Amendment. See, e.g., Wong, 169 U.S. at 695
(These provisions are universal in their application . . . .). For every
constitutional right that it has considered, including the Fourteenth
Amendment, this Court has treated public employers as state actors.
This Court has not treated public employment as a constitution-free
zone, and has not set aside any provision of the Constitution simply
because the state is acting as employer. This result follows
inexorably from the constitutional text: The fourteenth amendment
24 imposes constitutional restrictions upon the States as such, not
upon the States acting in some capacities and not others. Robert
Post, Between Governance and Management: The History and
Theory of the Public Forum, 34 UCLA L. Rev. 1713, 1763 (1987).
The government as employer still acts as a sovereign, and public
employees are still citizens entitled to equal protection of the laws.
Collins v. City of Harker Heights, Tex., 503 U.S. 115, 119 (1992).
Instead of reading into the Fourteenth Amendment a distinction that
the text does not reveal, this Court has applied the Constitution in
this realm to take into account the practical realities of government
employment, Waters v. Churchill, 511 U.S. 661, 672 (1994)
(plurality), and the important need for the efficient provision of public
services, Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006). The
divided panel below abandoned this balanced approach. The need
for efficiency exists in all arenas of government activity: in virtually
every setting, the government must efficiently perform tasks to serve
the public interestin mandating easements, issuing licenses, and
enforcing the law. In each instance, the government could
conceivably operate more efficiently if its actions were not limited by
the Constitution. In each instance, allowing a class-ofone equal
protection claim could theoretically give rise to a multitude of claims;
after all, governments impose easements, issue licenses, and
enforce the law in millions of decisions every day. Yet, the
governments interest in efficient operations has not been deemed
sufficient justification to set the Constitution aside altogether, as the
Ninth Circuit did here. This Court has not found that the
governments needs justify completely abandoning 25 any
constitutional constraint on the states actions; it should not do so
now. A. The Constitution Applies to the Government as Employer.
The government is not exempt from constitutional limitations when it

acts as employer. [S]tate and federal governments, even in the
exercise of their internal operations, do not constitutionally have the
complete freedom of action enjoyed by a private employer.
Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 897-98
(1961). See also Garcetti, 126 S. Ct. at 1958. Indeed, this Court has
recognized that its responsibility is to ensure that citizens are not
deprived of fundamental rights by virtue of working for the
government. Connick, 461 U.S. at 147. This was not always the
case. For the first half of the twentieth century, the unchallenged
dogma was that a public employee had no right to object to
conditions placed upon the terms of employment. Id. at 143 (noting
the superseded doctrine and collecting cases). Public employees
who did not choose to work on such terms [as set out by the
government] . . . [we]re at liberty to retain their beliefs and
associations and go elsewhere. Adler v. Bd. of Educ., 342 U.S. 485,
492 (1952). That ruleexempting the government from constitutional
restraint in managing its employees has long since been
repudiated. [T]he theory that public employment which may be
denied altogether may be subjected to any conditions, regardless of
how unreasonable, has been uniformly rejected. Keyishian v. Bd. of
Regents of SUNY, 385 U.S. 589, 605-06 (1967) (internal quotation
marks omitted). It is now firmly established that public employers are
26 state actors subject to the Constitution in their dealings with
employees.11 For decades, this Court has treated public employers
as state actors for purposes of every constitutional claim it has
considered. For instance, in the context of freedom of speech and
association, this Court has made clear that public employees do not
surrender all their First Amendment rights by reason of their
employment. Garcetti, 126 S. Ct. at 1957; see also City of San
Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam). Rather, the
courts arrive at a balance between the interests of the [public
employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its
employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see
also Connick, 461 U.S. at 142. As was once true of this Courts First
Amendment jurisprudence, public employees at one time were

denied the Fourteenth Amendment guarantee of procedural due
process. See, e.g., Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 571 n.9 (1972). It is now clear, however, that public employees
are entitled to due process. Id.; see also Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 540 (1985); NCAA v. Tarkanian, 488 U.S.
179, 192 (1988). Consistent with its modern First Amendment
precedent, this Court analyzes the public employees 11 Compare
McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (1892)
(Holmes, J.) (a policeman may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman), with
Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (stating that
policemen . . . are not relegated to a watered-down version of
constitutional rights). 27 entitlement to due process with
consideration for the efficiency concerns and needs of the
government employer. This Court assesses whether due process
has been denied by balancing the private interest in retaining
employment, the governmental interest in the expeditious removal of
unsatisfactory employees and the avoidance of administrative
burdens, and the risk of an erroneous termination. Loudermill, 470
U.S. at 542-43 (citing Mathews v. Eldridge, 424 U.S. 319, 335
(1976)). But a state action that deprives government employees of
liberty or property may nonetheless be so irrational that it may be
branded arbitrary, and violate the Due Process Clause. Kelly v.
Johnson, 425 U.S. 238, 247-48 (1976). It is equally settled that the
Fourth Amendments prohibition of unreasonable search and
seizures applies to public employers. In OConnor v. Ortega, 480
U.S. 709, 717 (1987), a plurality observed that [i]ndividuals do not
lose Fourth Amendment rights merely because they work for the
government instead of a private employer. See also id. at 730
(Scalia, J., concurring); Natl Treasury Employees Union v. Von
Raab, 489 U.S. 656, 665 (1989). The public employers interests are
taken into account when courts assess the reasonableness of the
search or seizure. See id. at 671. A similar analysis applies to the
Fifth Amendment right against self-incrimination. See Garrity v. New
Jersey, 385 U.S. 493, 500 (1967) (the Fourteenth and Fifteenth
Amendments exten[d] to all, whether they are policemen or other
members of our body politic). In each of these contexts, this Courts

has accommodated the needs of public employers without giving the
government a blank check to make employment decisions, shorn of
all constitutional restraint. 28 This Court has rejected the claims of
judges, high executive officials and members of Congress that they
are absolutely immune from liability for employment actions. In so
doing, the Court has acknowledged that the government interest in
effectiveness is counterbalanced by the salutary effects that the
threat of liability can have, and the undeniable tension between
official immunities and the ideal of the rule of law. Forrester v.
White, 484 U.S. 219, 223 (1988). Instead of absolute immunity, the
proper balance between the governments interest in effectiveness,
and the employees constitutional rights, is struck by qualified
immunity in employment challenges. Id. at 230; Harlow v. Fitzgerald,
457 U.S. 800, 813 (1982). Qualified immunity balances rights and
itself allows for the disposal of insubstantial claims without resort to
trial. Id. at 818. There is, in short, no circumstance in which
government employers are or should be absolutely immune from a
class of constitutional claims. Finally, as discussed in the following
section, it is axiomatic that the Equal Protection Clause constrains
public employers. This Court has expressly recognized that if a
public employer intentionally disadvantages a suspect class, the
Clause requires strict judicial scrutiny.12 See, e.g., Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 273-74 (1986) (plurality);
Personnel Admr of Mass. v. Feeney, 442 U.S. 256, 273 (1979). It
necessarily follows that public employers should be treated as state
actors for 12 There is no fundamental right to government
employment for purposes of the Equal Protection Clause. See Mass.
Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976) (per curiam).
29 purposes of class-of-one claims which arise under precisely the
same constitutional text. This Courts jurisprudence thus uniformly
treats public employers as state actors for constitutional purposes. B.
As Is True of All Other Constitutional Claims, Class-of-One Claims
May Be Brought Against Government Employers. Respondents bear
a heavy burden. They must show why a single aspect of the
Fourteenth Amendments Equal Protection Clauseclass-of-one
claimsshould be treated differently from every other constitutional
right in the public-employment setting. As demonstrated above, this

Courts practice is to apply the Constitution to public employers and
to address concerns unique to the employment setting by delineating
the cause of action to take those concerns into account. There is no
basis, either in the text of the Equal Protection Clause or in this
Courts cases, to depart from that practice. As noted, supra at 14, the
text of the Equal Protection Clause imposes constitutional
restrictions on the States without qualification; it does not distinguish
the State as taker of private property, from the State as regulator,
the State as law enforcer, or the State as employer. And, neither
the court below nor Respondents have provided any reason for this
Court to write this unprecedented proviso into the Clause. Indeed,
this Court has already rejected any such departure. In Collins, 503
U.S. 115 (1992), the widow of a sanitation worker who drowned in a
sewer line sued under 1983, claiming that the city violated her
husbands liberty interests by not properly training 30 and warning
regarding the risks of working in sewers. This Court rejected the
court of appeals distinction between a government acting as a
sovereign with respect to a citizen and a government acting as a
manager with respect to an employee: The Court of Appeals
analysis rests largely on the fact that the city had, through allegedly
tortious conduct, harmed one of its employees rather than an
ordinary citizen over whom it exercised governmental power. The
employment relationship, however, is not of controlling significance. .
. . The First Amendment, the Equal Protection and Due Process
Clauses of the Fourteenth Amendment, and other provisions of the
Federal Constitution afford protection to employees who serve the
government as well as to those who are served by them, and 1983
provides a cause of action for all citizens injured by an abridgment of
those protections. Neither the fact that petitioners decedent was a
government employee nor the characterization of the citys deliberate
indifference to his safety as something other than an abuse of
governmental power is a sufficient reason for refusing to entertain
petitioner's federal claim under 1983. Id. at 119 (emphasis added).
Collins makes clear that the fact that a government acts as an
employer (rather than a sovereign) may affect the balancing of
constitutional interests, but it does not transform state action into
something else or nullify the application of the Constitution. Collins

analysis alone mandates reversal of the decision below. In addition,
this Court has already recognized that the Equal Protection Clause
protects a public employee, who is not part of any specially protected
class, from irrational treatment by her public 31 employer. Harrah
Indep. Sch. Dist. v. Martin, 440 U.S. 194 (1979). Martin, a teacher,
was dismissed by the school board because she (along with three
colleagues) did not comply with a continuingeducation requirement.
Because Martin neither asserted nor established the existence of
any suspect classification or the deprivation of any fundamental
constitutional right, the Court found the only inquiry is whether the
States classification is rationally related to the State's objective. Id.
at 199 (internal citations and quotation marks omitted). Although this
Court ultimately concluded that Martin was not deprived of equal
protection of the laws because the school boards action was
rationally related to a legitimate objective, id., the critical point here is
that this Court never questioned that the Equal Protection Clause
protected Martin against irrational and unequal treatment at the
hands of her public employer. Martin and Collins share the same
premise as Olech: The Clause protects persons from irrational or
arbitrary state discrimination. This Court has repeatedly
characterized its cases addressing constitutional claims subject to
heightened scrutiny as forbidding arbitrary or irrational treatment of
such employees, using the same language Olech uses to describe a
class-of-one claim. See Cafeteria Workers, 367 U.S. at 897-98 (We
may assume that [the public employee] could not constitutionally
have been excluded from [her workplace] if the announced grounds
for her exclusion had been patently arbitrary or discriminatory . . . .);
Wieman v. Updegraff, 344 U.S. 183, 192 (1952) (It is sufficient to
say that constitutional protection does extend to the public servant
whose exclusion pursuant to a statute is patently arbitrary or
discriminatory.). 32 Furthermore, in cases raising public employees
constitutional claims that do not call for strict scrutiny, this Court has
employed the same formulation. See Murgia, 427 U.S. at 313; Rutan
v. Repub. Party of Ill., 497 U.S. 62, 98 (1990) (Scalia, J., dissenting)
(When dealing with its own employees, the government may not act
in a manner that is patently arbitrary or discriminatory, but its
regulations are valid if they bear a rational connection to the

governmental end sought to be served.) (citations omitted). In sum,
this Court has held, repeatedly, that public employers are bound by
the Equal Protection Clause for purposes of both strict scrutiny and
rational-basis review. The text, history, and precedent interpreting
the Clause prohibit exempting government employers alone from
class-of-one liability. C. The Ninth Circuits Decision Should Be
Reversed Because It Wrongly Equates Public and Private
Employment. In seeking an exception to the Courts usual practice of
considering the employment setting as a factor in how (and not
whether) to apply the Constitution to the state as employer, both
Respondents and the divided panel below asserted that the state is
not acting as a sovereign when it acts as employer. As demonstrated
above, this view is plainly inconsistent with this Courts precedent.
Further, even when acting as an employer, the government remains
the sovereign, capable of relating to its employees in ways that are
impossible for private employers. For example: No private
employer has the power to legislate the terms and conditions of
employment for its employees, removing 33 their susceptibility to
negotiation. No private employer has the power to enact a law
forbidding strikes by employees holding particular positions critical to
the company and to the public interest. But see Or. Rev. Stat.
243.736 (2007). No private employer can fund its retiree benefits
plans and programs with the public fisc. But see Or. Rev. Stat.
238A.025 (2007). No private employer is entitled to sovereign
immunity. In contrast, sovereign immunity ordinarily bars damages
suits against states, even when important federal laws are at issue.
See, e.g., Alden v. Maine, 527 U.S. 706, 732-33 (1999); Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 67 (2000) (holding that the Age
Discrimination in Employment Act does not abrogate sovereign
immunity); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356
(2001) (holding that Title I of the Americans with Disabilities Act does
not abrogate sovereign immunity). Public employees constitutional
rights have never been abrogated in their entirety; they are, at most,
qualified in some respects. Just as [c]onstitutional protection against
unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable
intrusions in its capacity as employer, OConnor, 480 U.S. at 731

(Scalia, J., concurring), constitutional protection against illegitimate
discrimination does not disappear merely because the government
has the right to make rational decisions in its capacity as employer.
34 The Ninth Circuit ignored the fundamental distinction between
limiting a constitutional right and eliminating it altogether. In an
attempt to support its conclusion by analogy to the First and Fourth
Amendment contexts, the Ninth Circuit recognized that the Court
has limited the rights of public employees as compared to ordinary
citizens. Pet. 24a (emphasis added). Then, however, the panel
abruptly transformed limited into eliminated, thereby stripping
public employees of the right of every person within the States
jurisdiction to be secure against intentional and arbitrary
discrimination. Olech, 528 U.S. at 564 (citation omitted). Neither the
text of the Equal Protection Clause nor this Courts cases suggest
that public employers may intentionally, arbitrarily, and irrationally
treat similarly situated persons differently. The Fourteenth
Amendment exists as a limitation on state action, see Lugar v.
Edmondson Oil Co., 457 U.S. 922, 924 (1982), irrespective of the
capacity in which the state acts. Rather than eliminating
constitutional constraints on states when they act as employers, this
Court should do what it has done with respect to all other
constitutional rights in the context of public employmentcarefully
delineate the class-of-one cause of action to protect the relevant
government interests and the employees constitutional rights. III.
PROPER APPLICATION OF RATIONAL BASIS REVIEW
APPROPRIATELY LIMITS CLASS-OF-ONE CLAIMS BY PUBLIC
EMPLOYEES. Traditional class-of-one equal protection analysis
requires a plaintiff to show that a public employer 35 has intentionally
treated similarly situated employees differently for reasons that are
not rationally related to any legitimate government interest. This
requirement appropriately limits classof-one claims, fully
accommodates the governments interests as employer, and deters
inappropriate and irrational government conduct that ill-serves the
publics interest in fair and efficient government. A. Plaintiffs Bear the
Significant Burden of Proving Each Element of a Class-Of-One
Claim. To make out a successful class-of-one claim, a plaintiff must
establish that: (1) the government treated him or her differently from
other similarly situated persons; (2) the difference in treatment was
intentional; and (3) the difference in treatment was not rationally
related to any legitimate government purpose. See Olech, 528 U.S.
at 564. Each element of this claim is a significant hurdle for plaintiffs
asserting class-of-one claims, and all must be satisfied for the
plaintiff to prevail. Experience with such claims in the federal courts
demonstrates that it is difficult for plaintiffs to prove the elements of a
class-of-one claim; only a handful of such claims have succeeded.
The cause of action itself, and the difficulties plaintiffs face in proving
each element, inherently limit the number of successful class-of-one
cases and ensure that run-ofthe-mill government employment
decisions will not be subjected to constitutional scrutiny. See
CordiAllen v. Conlon, 494 F.3d 245, 255 (1st Cir. 2007) (The Olech
class of one suit serves an important but relatively narrow function. It
is not a vehicle for federalizing run-of-the-mill zoning, environmental,
and licensing decisions.). 36 1. The Plaintiff Must Prove That the
Governments Differential Treatment Was Intentional. To begin, a
plaintiff making a class-of-one equal protection claim must
demonstrate that the governments differential treatment of him or
her was intentionalnot the result of chance, mistake, or careless
error. Mere differences in treatment cannot form the basis of a claim:
the government must have deliberately differentiated between like
individuals. This element of the cause of action emerges directly
from Olech. See 528 U.S. at 564. Olechs intent requirement flows
from this Courts decision in Snowden to limit the governments
liability in cases involving unintended error. In Snowden, the Court
explained that an erroneous or mistaken performance of [a]
statutory duty, although a violation of the statute, is not without more
a denial of the equal protection of the laws. 321 U.S. at 8. Rather,
an additional requirement is the element of intentional or purposeful
discrimination. Id. Similarly, in Sunday Lake, 247 U.S. 350, this
Court recognized that the Equal Protection Clause does not prohibit
unequal taxation that results from an honest mistake. See also
Ciechon v. City of Chicago, 686 F.2d 511, 522, 523 (7th Cir. 1982)
(equal protection does not mean that error or mistake in the
application of the law gives rise to an equal protection claim, but
[r]ather, [when] it was an intentional act with no rational basis).13 In

this case, 13 For example, Giordano, 274 F.3d 740, rejected a
challenge to retire a police officer as disabled because of his
regimen on the drug Coumadin. Id. at 742. While the plaintiff
showed that the department retained another officer taking
Coumadin, the plaintiff presented no evidence . . . that those
responsible 37 the jury found, and Respondents have never
disputed, that their treatment of Engquist was intentional. 2. The
Plaintiff Must Prove That He or She Was Treated Differently From
Other Similarly Situated Persons. A class-of-one plaintiff must also
establish that he or she was treated differently from others similarly
situated in relevant respects. Olech, 528 U.S. at 564. This
requirement screens out cases that involve no genuine
discrimination, while permitting cases that do. The courts of appeals
have scrupulously applied the similarly situated requirement to
require class-ofone plaintiffs to establish significantly unequal
treatment, eliminating de minimis and insubstantial claims. See, e.g.,
Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)
(rejecting class-of-one claim where public employee could not point
to similarly-situated employees); Neilson v. DAngelis, 409 F.3d 100,
106 (2d Cir. 2005) (factual comparison to comparators too remote
to support similarity). The First Circuits application of this condition
highlights its limiting effect in the publicemployment context.
Plaintiffs claiming an equal protection violation must first identify and
relate specific instances where persons situated similarly in all
relevant aspects were treated differently. Rubinovitz v. Rogato, 60
F.3d 906, 910 (1st Cir. 1995) (internal quotation marks omitted;
emphasis added). See also Buchanan v. Maine, 469 F.3d 158, 178
(1st Cir. 2006) (finding that, although an exact for terminating him
because of his Coumadin use knew they were treating him differently
from anyone else. Id. at 751. 38 correlation need not exist between
a plaintiffs situation and that of others, the claim failed because no
comparators were similarly situated (internal quotation marks
omitted)); Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th
Cir. 2004); Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1203-04 (11th
Cir. 2007). Only where the plaintiff can present evidence that the
government has treated unequally people who are similarly situated
in the respects relevant to the differential treatment will a class-ofone claim be permitted to proceed. See Zeigler, 638 F.2d at 779;14
Ciechon, 686 F.2d at 522-23. This principle captures the essence of
the equal protection violation, namely, the governments treatment of
similar people in different ways without a rational basis for the
discrimination. In this case, the jury explicitly found that the
government singled Engquist out for harsher treatment than the
similarly situated individuals in the LSD. Pet. 3a-4a. 14 In Zeigler, a
police department discharged a patrolman pursuant to a character
requirement following his convictions for presenting a firearm and
criminal provocation, 638 F.2d at 777. In his challenge, the plaintiff
presented evidence of at least three individuals . . . retained on the
police force following their convictions of similar crimes. Id. at 779.
Given the similarity of the offenses and the fact that all officers were
equally subject to the character requirement and its offense list,
they were similarly situated. Id. That was so despite any number of
differences between the three officers in their employment and
personal characteristics; the inquiry properly focused only on
whether those individual characteristics were relevant to the states
proffered rationale for its action. 39 3. The Plaintiff Must Establish
That The Unequal Treatment Is Not Rationally Related to a
Legitimate Government Purpose. The third element of class-of-one
claims requires a plaintiff to demonstrate that the governments
intentional discrimination was without a legitimate basis. This Court
has explained that a classification neither involving fundamental
rights nor proceeding along suspect lines . . . cannot run afoul of the
Equal Protection Clause if there is a rational relationship between
disparity of treatment and some legitimate governmental purpose.
Cent. State Univ. v. Am. Assn of Univ. Professors, 526 U.S. 124,
127-28 (1999) (internal quotation marks omitted). Rational basis
review is premised on the judicial deference due to governmental
policy decisions resulting from democratic processes, see, e.g.,
United States v. Carolene Prods. Co., 304 U.S. 144, 152 & n.4
(1938). Yet, this Courts jurisprudence has consistently reaffirmed
that state action against a nonsuspect class fails even this relaxed
scrutiny if, inter alia, the classification is based on an irrational
prejudice rather than legitimate governmental interests, see, e.g.,
Cleburne, 473 U.S. at 447-50, or if the asserted policy reason for the
justification is not plausible, see, e.g., Nordlinger, 505 U.S. at 11. In
rational-basis cases, the plaintiff must overcome a strong
presumption in favor of the government. Hodel v. Indiana, 452 U.S.
314, 331-32 (1981). To be sure, the plaintiff always has an
opportunity to negate the governments asserted bases for its
discriminatory classification or treatment. If the reasons the
government puts forward for treating an individual unequally reveal
an illegitimate purpose, 40 or are not rationally related to the
proffered objective, then the plaintiff can prevail. In Cleburne, for
example, this Court invalidated the application of an ordinance
requiring a home for the mentally disabled to obtain a special use
permit before constructing a new facility. See 473 U.S. at 450. The
plaintiffs prevailed by establishing that each of the defendant citys
asserted rationales for the discriminatory treatment was either
unrelated to a legitimate objective or was based on an illegitimate
purpose. This Court concluded that the classification bore no rational
relationship to more legitimate government objectives, such as
concerns about overcrowding or the possibility of a flood. Id. at 44950. The Equal Protection Clause is a guarantee against
discriminatory treatment, not adverse government actions (unless
they affect fundamental rights).15 Thus, equal protection analysis
does not focus on whether the government had a rational basis for
harming someoneinstead it focuses on whether the 15 For this
reason, cases in which this Court has refrained from recognizing
certain Due Process Clause rights for public employees, e.g.,
Collins, 503 U.S. 115; Bishop v. Wood, 426 U.S. 341 (1976), bear no
relation to the guarantee the Equal Protection Clause provides
against intentional discriminatory treatment at the hands of
government actors. Although the Due Process Clause only protects
against the deprivation of discrete recognized interests, the Equal
Protection Clause applies to all persons, whether or not they are part
of a special class or exercising a special right. Unlike the plaintiffs in
Bishop and Collins, Engquist does not seek recognition of a special
right, nor does she ask the courts to impose any novel duty on public
employers. And unlike the plaintiffs in these Due Process Clause
cases, Engquist does allegeand a jury foundthat she was
treated differently from similarly situated individuals, and

discriminated against irrationally by the government. 41 government
had a rational basis for harming one person and not another. As
Olech explains, this Courts cases have recognized successful
equal protection claims brought by a class of one, where the plaintiff
alleges that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference
in treatment. 528 U.S. at 564 (emphasis added). For this reason, an
equal protection plaintiff need not establish that the government had
no rational basis for taking action against her. But the plaintiff is
required to prove that the government had no rational basis for
taking action against her as opposed to somebody else similarly
situated. A governmental employment decision is thus rational
whenever the discrimination relates to a legitimate government
interest. E.g., Bizzarro v. Miranda, 394 F.3d 82, 89 (2d Cir. 2005). In
practice, it has been difficult for plaintiffs to show that the
government has failed to meet this standard, particularly in the
context of public employment. For example, the courts of appeals
have noted that a government employers disciplinary decision is
rationally related to a legitimate government purpose where the
employee violated an established rule or policy. See Wojcik, 300
F.3d at 105; Lauth v. McCollum, 424 F.3d 631, 634 (7th Cir. 2005).
Only an arbitrary governmental deviation from established policy
undermines the rationality of the governments proffered basis for
action. See Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir. 1981).
The rationality of a government employment decision relying on
either an employee rule violation or a legitimate government purpose
reduces the universe of potentially irrational government decisions.
Accordingly, court conclusions of 42 irrationality have been largely
confined to cases in which the plaintiff employee demonstrates
animus or improper motive on the part of the government decisionmaker. See Scarbrough, 470 F.3d at 261; Ciechon, 686 F.2d at 516.
These principles, at the heart of rational basis review, have
effectively limited the number of classof-one cases. The Equal
Protection Clause does not require perfect equality in treatment for
all similarly situated individuals. Instead, a plaintiff must prove that
the governments discrimination is not rationally related to a
legitimate government purpose, a showing possible for only that tiny

fraction of plaintiffs who have suffered intentional, irrational, and
discriminatory government treatment. In this case, Engquist alleged
malice and the jury can be said to have credited her evidence that
she was discriminated against because of Respondents ill-will
instead of a legitimate government purpose. 4. The Presence of
Animus, Ill-Will, Malice, or Vindictiveness. If the government is
unable to articulate a rational basis for discriminating against an
individual plaintiff, it follows that the governments discrimination was
either arbitrary or motivated by animus. In Cleburne itself, after
negating the proffered rationales, this Court emphasized that the
citys decision appears to us to rest on an irrational prejudice. 473
U.S. at 450. In other words, rather than looking behind the record to
evaluate the subjective intent of the citys decision to require a
special use permit, the Court concluded that the citys offered
justifications were facially unconvincing. See, e.g., id. (noting that the
citys interests in 43 avoiding concentration of population and
lessening congestion of the streets . . . obviously fail to explain why
apartment houses, fraternity and sorority houses, hospitals and the
like, may freely locate in the area without a permit). Like Cleburne,
this Courts decision in Olech did not require a plaintiff to allege
animus. Olech, 528 U.S. at 565 (permitting claim due to allegations
of irrational and wholly arbitrary government action, without
reaching the alternative theory of subjective ill will relied on by [the
lower] court). Justice Breyers concurring opinion nonetheless
viewed allegations of vindictive action, illegitimate animus, or ill
will as sufficient to state a class-ofone claim. Id. at 566 (Breyer, J.,
concurring in the result). Following Justice Breyer, several courts,
including the trial court in this case, have looked to animus or
vindictiveness in assessing class-of-one violations. Proof of animus
need not, however, be an independent, additional factor in class-ofone cases. Rather, courts use evidence of malice and vindictiveness
as a proxy for other elements that a plaintiff must prove. Given the
potential value of evidence of animus in reducing the likelihood of
elevating innocuous government mistakes to constitutional issues,
courts have looked to evidence of animus and vindictiveness as
probative of (1) whether the classification is rationally related to a
legitimate government purpose, (2) the existence of similarly situated

comparators, and (3) the intentional nature of the governmental
discrimination. For example, in Scarbrough, 470 F.3d 250, the Sixth
Circuit relied on evidence of improper animus undergirding a
governmental employment decision to 44 establish the irrationality of
the government action. In that case, the defendant board of
education refused to rehire the plaintiff as the director of schools
after plaintiff was asked to speak at a church convention with a
predominantly gay and lesbian congregation. Id. at 253-54.
Reviewing the boards differential treatment of the plaintiff, as
compared to the successful candidate, for rationality, the court
noted that [t]he desire to effectuate ones animus against
homosexuals can never be a legitimate governmental purpose. Id.
at 261 (citation omitted). Noting that a plaintiff may demonstrate that
the government action lacks a rational basis either [1] by negativing
every conceivable basis which might support the government action,
or [2] by demonstrating that the challenged government action was
motivated by animus or ill-will, id. at 261 (citation omitted), the court
concluded that the plaintiff offered sufficient evidence to create a
genuine issue of material fact as to whether [board members] were
motivated by animus against homosexuals. Id. Similarly, the First
Circuit has viewed evidence that the governmental decision was
motivated by vindictiveness or animus as relevant to the requirement
that the plaintiff be treated differently from others who are similarly
situated. See CordiAllen, 494 F.3d at 251 n.4 (We note that the
degree of similarity required may be relaxed somewhat if the plaintiff
has presented evidence of personal malice and bad faith retaliation.
(internal quotation marks omitted)). Otherwise, a class-of-one plaintiff
would face greater difficulty in establishing a claim where the plaintiff
produced significant evidence of animosity underlying the
government action, because that animosity would itself distinguish
the plaintiff 45 from potentially similarly situated comparators. See
U.S. Dept of State v. Ray, 502 U.S. 164, 179 (1991) ([w]e generally
accord . . . official conduct a presumption of legitimacy); United
States v. Chem. Found., 272 U.S. 1, 14-15 (1926) (The presumption
of regularity supports the official acts of public officers, and, in the
absence of clear evidence to the contrary, courts presume that they
have properly discharged their official duties.) Moreover, a plaintiffs

evidence of vindictiveness or malice can be used to demonstrate that
the mere act of discrimination was committed intentionally. In classof-one challenges to governmental regulation, the regulation itself
might give rise to an inference of improper motive, but in the
employment context the plaintiff may need to demonstrate personal
vindictiveness or malice in order to prove that the unequal treatment
was intentionally directed at her. Indeed, although subjective intent
has littleif anythingto contribute to analysis of whether particular
legislation is rational, it understandably plays a greater role in
assessing the propriety of governmental employment decisions. See,
e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (noting the
reliance upon subjective intent in employment cases alleging
disparate treatment). Here, as in Olech, this Court need not decide
as a general rule whether proof of malicious or vindictive conduct is
necessary in order to state a class-of-one claim. It would suffice
merely to adopt the principle, as have so many courts of appeals,
that a finding of animus is highly relevant to establishing the
elements required to prove an equal protection violation. 46 5. The
Jury Found the Governments Different Treatment of Engquist to Be
Without Any Rational Basis. Because plaintiffs face significant
hurdles in proving a class-of-one claim, as established in Olech,
allowing plaintiffs to bring such claims does not substantially burden
the day-to-day administration of government, but it does protect
individuals from the rare circumstance in which the government
discriminates without a rational basis. Although it is difficult for a
plaintiff to overcome the rational basis test, it is not impossible. See,
e.g., Hooper v. Bernalillo County Assessor, 472 U.S. 612, 623 (1985)
(invalidating a New Mexico tax exemption because there was no
reason for the state to prefer established resident veterans over
newcomers in the retroactive apportionment of an economic
benefit); see also Allegheny Pittsburgh, 488 U.S. at 345-46. In
Olech itself, this Court found that the Village lacked a rational basis
for requiring the respondents to cede it a 33-foot easement in
exchange for connecting their property to the municipal water supply
when similarly situated property owners were asked only for 15-foot
easements. Here, the district court properly instructed the jury on all
of the elements Engquist needed to prove to win her class-of-one

equal protection claim. Pursuant to the judges instructions, the jury
found in this case that (1) the acts . . . of the defendants were
intentional, (2) the plaintiff prove[d] that defendants treated her
differently than others similarly situated, (3) the different treatment
caused the denial of Plaintiffs promotion, the exercise of her
bumping rights or the termination of her employment, (4) no rational
basis exists for the difference in treatment, and (5) Defendant took
47 these actions for arbitrary, vindictive, or malicious reasons. JA
63-64. By finding each of these factors, the jurys verdict places
Engquists case in the small set of cases in which plaintiffs are able
to prove that unequal treatment at the hands of the government is
not rationally related to a legitimate government purpose. B.
Employees Class-of-One Claims Are Inherently Limited by the Wide
Array of Public Employers Legitimate Objectives. For a class-of-one
claim to succeed, the plaintiff must establish that the governments
discrimination was not rationally related to a legitimate government
purpose. In practice, this has proven a high hurdle for plaintiffs to
clear, especially in the publicemployment setting, in which
government has a wide array of legitimate interests that justify
differential treatment of employees. Indeed, the range of legitimate
government objectives is likely to be far greater in the employment
context than in others. For example, a government employer, like a
private employer, has a legitimate interest in retaining a competent
and professional workforce and promoting collegiality in the
workplace. Accordingly, the government employer generally can
reasonably terminate an individual on the basis that he or she lacks
adequate knowledge of the relevant subject matter or is antisocial or
insubordinate. It follows that public employees will have fewer
opportunities to bring a valid class-of-one claim than citizens subject
to other government action. For example, it would not be rationally
related to a legitimate government objective for a zoning official 48 to
deny a home permit to an individual based on the officials belief that
the individual was antisocial. In contrast, for an agency to terminate
an employee for the same reason generally would relate rationally to
a legitimate interest of a government employer. Unlike the zoning
official, the public employer often must take into account the
individual personalities and interpersonal relationships of employees

in the workplace. The close relationship between the employer and
employee, and the varied needs and interests involved in the
employment context, mean that considerations such as concerns
over personality conflicts that would be unreasonable as grounds for
arms-length government decisions (e.g., zoning, licensing) may
well justify different treatment of a public employee. Public employers
in different fields have cited to a vast array of specific legitimate
objectives in the courts of appeals. In Bizzarro, for instance, a
corrections officer refused to assist his superiors in conducting an
internal prison investigation into the shipment of contraband into the
facility. 394 F.3d at 83. The court concluded that the ensuing
disciplinary charges were rationally related to the departments
legitimate need to eliminate contraband. Id. at 88- 89. The rationality
of a government decision relying on either an employee rule violation
or a legitimate policy interest further reduces the universe of
potentially illegitimate government decisions. Still, not all public
employment decisions will be related to a legitimate government
objective. See Scarbrough, 470 F.3d at 261 (animus against
homosexuals can never be a legitimate governmental purpose);
Cleburne, 473 U.S. at 446-47 ([S]ome objectivessuch as a bare .
. . desire to harm a politically unpopular group,are not legitimate
state 49 interests.) (citation omitted). If an employee is discriminated
against for having some particular personal characteristic unrelated
to workplace efficiency, or belonging to some unpopular group, this
does not serve a legitimate government objective. So too, it serves
no legitimate interest of the government if an employee is
discriminated against for whistleblowing, or because a boss has
been bribed to hire somebody else. Nonetheless, the wide range of
legitimate bases for discriminatory treatment that are unique to the
employment relationship places firm limits on classof-one
employment cases. C. Public Employers Have Been Subject to
Rational-Basis Review For Years With No Ill Effects. Both before and
since Olech, circuit and district courts have applied a variety of
principles that limit the field of class-of-one public employment
cases. Such claims have placed no strain on the docket. In the
seven years since Olech was decided, only 162 reported public
employment cases approximately 24 cases per yeareven

asserted an Olech class-of-one equal-protection violation in federal
court. All but a handful were disposed of via summary judgment or a
motion to dismiss. These small numbers are dwarfed by the large
number of employment suits filed every year. In fiscal year 2006,
there were nearly 15,000 claims of employment discrimination filed in
federal court alone. Judicial Business of the United States Courts,
2006 Annual Report of the Director, available at
http://www.uscourts.gov/judbususc/judbus.html. The relatively small
number of class-of-one public employment cases filed over the
course of seven 50 yearseven though no circuit (until now) has
held them invaliddemonstrates that applying this doctrine to public
employment has not led, and will not lead, to a flood of litigation.16
16 The Ninth Circuits decision was driven in part by concern that
allowing class-of-one claims by public employees would invalidate
the practice of public at-will employment. Pet. 25a. This concern is
misplaced for several reasons. First, [i]t is the former employee who
has the burden of proving that his discharge was motivated by an
impermissible consideration, Rutan, 497 U.S. at 80 (Stevens, J.,
concurring) here, a violation of the Equal Protection Clause.
There is a clear distinction between the grant of tenure to an
employeea right which cannot be conferred by judicial fiatand
the prohibition of a discharge for a particular impermissible reason.
Id. at 80-81 (emphasis added) (citations omitted). Second, as noted
supra, a class-of-one claim must be based on intentional conduct
and differential treatment of similarly situated employees. A public
employer, accordingly, can terminate or discipline an at-will
employee without cause if its conduct is not intentional and if there
is no differential treatment of similarly situated employees. Third, the
Ninth Circuits prediction is devoid of practical support. Nine circuits
permit such claims, and there is no flood of class-of-one claimslet
alone successful claimsby formerly at-will employees. Finally, the
Ninth Circuits quotation of Waters, 511 U.S. at 679, for the
proposition that an at-will government employee . . . generally has
no claim based on the Constitution at all, misreads the decision. In
Waters itself, the Court granted all public employeeswhether at-will
or nota right to sue their employers for violations of First
Amendment rights. See id. at 678. This Court has made clear that atwill employees may bring constitutional claims against their public
employers. E.g., Perry v. Sindermann, 408 U.S. 593, 599 (1972)
(although at-will employment status is highly relevant to [an
employees] procedural due process claim[,] a lack of formal
contractual or tenure security in continued employment . . . [is]
irrelevant to his free speech claim). In sum, there is no need to 51 In
comparison to the numerous avenues into courts already available to
plaintiffs in employment disputesany of which may permit
extensive discoveryit is difficult to envision a circumstance in which
the class-of-one claim would seriously alter the current litigation
balance in the trial courts. Public employees who are members of no
special class can still allege substantive and procedural due process
violations, retaliation in violation of the First Amendment, and a
variety of other claims.17 And no matter what the race or gender of a
public employee may be, that employee can allege discrimination (or
so-called reverse discrimination) under 1983 with its
accompanying heightened scrutiny, which will undoubtedly be more
attractive to litigants than the deferential rational basis standard.
This case amply demonstrates the point: Ms. Engquist asserted
statutory and substantive due process violations in addition to her
equal-protection claim. Even if Ms. Engquist had no class-of-one
equal-protection claim, discovery in her case would have proceeded,
and the case would have gone to trial. JA 36 (The court finds that
this evidence is sufficient to create an issue of fact as to whether
defendants were motivated to terminate plaintiff for discriminatory
reasons in violation of Title VII.); id. at 40-41 (denying governments
motion for summary judgment with respect to substantive due
process claim). See also Gilbert v. Homar, 520 U.S. 924, 929eliminate the constitutional right to equal protection for public
employees to preserve at-will public employment. 17 Other statutory
and constitutional causes of action available to public employees are
no substitute for their right to equal protection. Bd. of County
Commrs v. Umbehr, 518 U.S. 668, 680 (1996). Each constitutional
provision guarantees discrete rights. 52 31 (1997) (suggesting that
the Due Process Clause protects against disciplinary measures short
of termination). Of the 162 public employment cases filed over the
past seven years alleging a class-of-one equal protection violation,

the vast majority asserted other causes of action as well. Thus,
curtailing the equalprotection rights of a class-of-one public
employee would do little, if anything, to reduce the caseload of the
federal courts.18 18 Allowing a cause of action for Ms. Engquist, a
state employee, would not automatically create a class-of-one
remedy for federal employees, whether at-will or not. Congress has
provided a statutory cause of action, 42 U.S.C. 1983, to remedy
constitutional violations committed by state and local officials.
Monroe v. Pape, 365 U.S. 167, 183 (1961). However, no similar
statute provides a general cause of action to remedy constitutional
violations committed by federal government officials. See Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388, 397 (1971). In Bivens, this Court suggested that it would
not craft a cause of action for a constitutional violation by the federal
government if the plaintiff had available another remedy, equally
effective in the view of Congress. 403 U.S. at 397. This Court first
applied that exception in Bush v. Lucas, 462 U.S. 367 (1983), where
in light of extensive federal civil service protections it declined to
create a cause of action for a constitutional suit by a federal
employee against his public employer. A similar analysis would be
applicable here. In contrast to cases concerning the availability of a
Bivens remedy, as a general rule this Court does not consider the
availability of state laws and procedures for substantive constitutional
claims brought under 1983. Monroe, 365 U.S. at 183. In the limited
context of procedural due process cases, this Court does consider
available state law remedies to determine whether a constitutional
violation has occurred, for a deprivation of life, liberty, or property is
not complete unless and until the State fails to provide due process.
Zinermon v. Burch, 494 U.S. 113, 125 (1990); see also Parratt v.
Taylor, 451 53 Moreover, federal courts have available a range of
procedural tools to prevent meritless cases from moving forward and
clogging up the courts. For example, through the requirements of
Federal Rule of Civil Procedure 8 or other mechanisms under the
Federal Rules of Civil Procedure (such as Rule 56(f)), courts can
require plaintiffs to plead and produce evidence of the facts that
support a class-of-one claim. Indeed, this Court has recently clarified
that, to survive a motion to dismiss, a complaint must plead enough

facts to state a claim to relief that is plausible on its face. Bell Atl.
Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). In practice,
accordingly, a plaintiff cannot just plead the legal elements of a
class-of-one claim without more, but must also plead facts sufficient
to demonstrate that each element of his or her claim has been
satisfied in the public employment setting. See id. at 1965
([F]ormulaic recitation of the elements of a cause of action will not
do. . . . Factual allegations must be enough to raise a right to relief
above the speculative level.). Thus, when faced with a class-ofone
complaint that fails to make plausible factual allegations that the
governments action was U.S. 527, 531-35 (1981); Hudson v.
Palmer, 468 U.S. 517, 522-30 (1984). Thus, in that one special
category of cases, to determine whether a constitutional violation
has occurred, it is necessary to ask what process the State provided,
and whether it was constitutionally adequate. Zinermon, 494 U.S. at
125. When suits concern substantive constitutional rights, though,
the constitutional violation actionable under 1983 is complete
when the wrongful action is taken. Id. (citations omitted); see also
Collins, 503 U.S. at 119-20 ([T]he Equal Protection . . . Clause[] . . .
afford[s] protection to employees who serve the government as well
as to those who are served by them, and 1983 provides a cause of
action for all citizens injured by an abridgment of [it].). 54 irrational
and intentional, the lower courts can dismiss the case under Rule
12(b)(6). See Assn of Cleveland Fire Fighters v. City of Cleveland,
502 F.3d 545, 548-50 (6th Cir. 2007) (applying Twombly to class-ofone claim and concluding that plaintiffs raised insufficient factual
allegations to raise a right to relief above the speculative level
(quoting Twombly, 127 S. Ct. at 1965)); Phillips v. County of
Allegheny, No. 06-2869, 2008 WL 305025 (3d Cir. Feb. 5, 2008)
(discussing in detail pleading requirements for class-of-one equal
protection claims, and noting Twombly). Other mechanisms provided
by the Federal Rules of Civil Procedure also allow courts to dispose
of meritless class-of-one cases quickly. For example, prior to
discovery, the court may order a reply to the defendants or a third
partys answer under Federal Rule of Civil Procedure 7(a), or grant
the defendants motion for a more definite statement under Rule
12(e). Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see also
Schultea v. Wood, 47 F.3d 1427, 1432- 33 (5th Cir. 1995) (en banc)
(upholding the district courts power in qualified-immunity cases to
order a reply pleading far greater detail than that required by Rule
8(a)(2)). The combination of the substantive elements of a class-ofone cause of action and certain tools embodied in the Federal Rules
of Civil Procedure allows courts to address such claims, while
balancing the equal protection rights of public employees with the
appropriate discretion governmental employers have in making
employment decisions. And, in fact, this is what has happened. The
Ninth Circuits unsubstantiated speculation that allowing class-ofone
claims will overwhelm the federal courts and public employers with
litigation is proven wrong by 55 the courts actual experience in the
nine circuits where such claims have been authorized.19 Finally,
there is no reason to believe that more and more insubstantial classof-one claims will arise in the public-employment context than in
other government settings, such as the land-use context addressed
in Olech. State and local governments make millions of zoning and
licensing decisions each year.20 State and local prosecutors make
hundreds of 19 Notably, the rational-basis standard that applies to
class-ofone claims is virtually identical to the standard this Court
applies in assessing whether a unionwhich has both a statutory
duty to represent its members and an obligation to govern in the
overall interest of the bargaining unit as a wholehas breached its
duty to individual members. In balancing these interests, this Court
has held that a union breaches its duty of fair representation if its
actions are either arbitrary, discriminatory, or in bad faith, and that
a unions actions are arbitrary only if, in light of the factual and legal
landscape at the time of the unions actions, the unions behavior is
so far outside a wide range of reasonableness, as to be irrational.
Air Line Pilots Assn v. ONeill, 499 U.S. 65, 67 (1991) (citation
omitted). Negligence is not enough. United Steelworkers v. Rawson,
495 U.S. 362, 372 (1990). Like unions, public employers have
government and public interests to serveinterests that must be
balanced against employees rights not to be intentionally treated
arbitrarily or irrationally. The Court designed its fair-representation
test to balance the relevant interests, and it has proven wholly
workable. There is no reason why class-of-one claims would be any

different. 20 [Z]oning decisions . . . occur thousands of times every
day in this country. Lemke v. Cass County, 846 F.2d 469, 471 (8th
Cir. 1987) (Arnold, J., concurring). There were over 1.8 million
building permits issued for new construction in 2006. U.S. Census
Bureau, Building Permits-Annual Data, available at
http://www.census.gov/const/bpann.pdf. Oklahoma issued 3 million
licenses in fiscal year 1998, including over 1 million business
licenses. Marie Price, New 56 thousands more.21 And prisons and
jails similarly make millions of individualized decisions each year. In
many of these contexts, a plaintiff can assert that the government is
behaving improperly, and file a federal lawsuit to, for example, strike
down a housing inspection failure, reinstate a liquor license, undo a
plea agreement, or contest the imposition of prison discipline. While
the wholesale elimination of constitutional rights would certainly cut
the number of federal cases, that course is both impermissible and
unnecessary. Instead, the discretion built into rational-basis review,
coupled with the traditional tools that federal courts have employed
to manage such cases, reserves the class-of-one claim for
appropriate cases of irrational and arbitrary government conduct.
Public employees, who after all serve our citizenry, should have the
same rights as the variety of other persons whose ability to bring
rational-basis challenges has been affirmed by this Court. Law
Aimed at Licensing Businesses, Journal Record, June 30, 1998.
New Yorks Division of Alcoholic Beverage Control regulates nearly
70,000 licenses and permits statewide each year. See N.Y. State,
Div. Alcoholic Bev. Control, Licensing Information, available at
http://abc.state.ny.us/JSP/content/licensing.jsp. 21 Approximately
95% of the 1,078,920 convicted state felons in 2004 pled guilty. See
Bureau of Justice Statistics, Sourcebook of Criminal Justice
Statistics Online, available at
http://www.albany.edu/sourcebook/pdf/t5462004.pdf. In 2004, 71,692
defendants pled guilty out of 83,391 federal defendants. Id. 57
CONCLUSION The judgment of the Ninth Circuit should be
reversed.
REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA

KABATAAN PARTY-LIST REPRESENTED BY REP. JAMES MARK
TERRY L. RIDON AND MARJOHARA S. TUCAY; SARAH JANE I.
ELAGO, PRESIDENT OF THE NATIONAL UNION OF STUDENTS
OF THE PHILIPPINES; VENCER MARI E. CRISOSTOMO,
CHAIRPERSON OF THE ANAKBAYAN; MARC LINO J. ABILA,
NATIONAL PRESIDENT OF THE COLLEGE EDITORS GUILD OF
THE PHILIPPINES; EINSTEIN Z. RECEDES, DEPUTY
SECRETARYGENERAL OF ANAKBAYAN; CHARISSE
BERNADINE I. BAEZ, CHAIRPERSON OF THE LEAGUE OF
FILIPINO STUDENTS; ARLENE CLARISSE Y. JULVE, and SINING
MARIA ROSA L. MARFORI, Petitioners, - versus - COMMISSION
ON ELECTIONS, Respondent. x----------------------------------------x
G.R. No. ______________ Petition for Certiorari and Prohibition with
Application for the Issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order PETITION FOR CERTIORARI AND
PROHIBITION (WITH APPLICATION FOR THE ISSUANCE OF A

WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY
RESTRAINING ORDER) Kabataan Partylist v. COMELEC Page 2 of
32 PETITIONERS, through the undersigned counsel, unto the
Honorable Supreme Court, most respectfully state that: The great
constitutional corrective in the hands of the people against
usurpation of power, or corruption by their agents is the right of
suffrage; and this when used with calmness and deliberation will
prove strong enough. -Andrew Jackson NATURE OF THE
PETITION 1. This is a original action for CERTIORARI and
PROHIBITION under Rule 65 of the Rules of Court with an
application for the issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order (TRO) against the respondent
Commission on Elections (COMELEC) and for the exercise of
judicial review to assail the constitutionality of the deactivation of
registration of voters without biometrics and enjoin the
implementation of provisions of the Republic Act No. 10367 or An
Act Providing for Mandatory Biometrics Voter Registration. 2. This
petition seeks the nullification of COMELEC Resolution No. 9721,
dated June 26, 2013, Resolution No. 9863, dated April 1, 2014, and
Resolution No. 10013, all related to deactivation of voter registration
records in the May 9, 2016 National and Local Elections, as directed
by the assailed Republic Act No. 10367. 3. The prayer for the
exercise of judicial review to assail the constitutionality and enjoin
the implementation of Republic Act No. 10367 and the declaration of
respondent COMELECs Resolution No. 9721, Resolution No. 9863,
and Resolution No. 10013 as null and void are anchored on two (2)
crucial grounds: 4. First, Republic Act No. 10367 and its
implementing regulations are unconstitutional as these impose an
unconstitutional, additional substantive requirement imposed on the
exercise of suffrage, thus violating Section 1, Article V of the 1987
Constitution. Section 1, Article V of the 1987 Constitution states
Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year
and in the place wherein they propose to vote for at least six months
Kabataan Partylist v. COMELEC Page 3 of 32 immediately
preceding the election. No literacy, property, or other substantive

requirement shall be imposed on the exercise of suffrage. (Emphasis
supplied.) 5. In contravention of the above-stated constitutional
provision, Republic Act No. 10367 and its implementing regulations
imposed an additional substantive requirement for all voters, both old
and new registrants, to submit for mandatory biometrics validation or
risk being deactivated or removed precinct book of voters, thus
effectively barring them from the exercise of their right to vote. 6.
Further egregious is the fact that voters with active records according
to Republic Act No. 8189, the antecedent Voters Registration Law of
1996, comprise bulk of those who will be deactivated. The
deactivation of registered voters qualified under Republic Act No.
8189 is incompatible with the tenet that laws with penal sanctions
should apply prospectively and not retrospectively. 7. Secondly, the
biometrics validation gravely violates due process as it an
unreasonable deprivation of the constitutional right to vote for
millions of Filipinos who have failed to register their biometric
information despite existing and active registration in effect a
voters re-registration for various reasons whether personal or
institutional. 8. Applying the strict scrutiny test for questioning State
actions that involve fundamental rights, there should be compelling,
rather than substantial, governmental interest and on the absence of
less restrictive means for achieving that interest. In the case at bar,
respondent fails to justify the curtailment, nay, arrogation of the
fundamental right of suffrage. 9. The implementation of Republic Act
No. 10367 and its corresponding implementing regulations cause the
disenfranchisement of more than three (3) million registered voters,
according to official data from respondent COMELEC. This
constitutes almost six (6) percent of the estimated 52.2 million
registered voters for the upcoming 2016 national and local elections.
10. Under the circumstances obtaining in this case, herein
Petitioners have no plain, speedy, and adequate remedy in the
ordinary course of law which will promptly and immediately relieve
herein Petitioners from the injurious effects of the unconstitutional
acts of the respondent in the issuance and implementation of the
assailed Resolutions. 11. Petitioners are likewise praying for the
issuance of a writ of preliminary injunction and/or temporary
restraining order due to the seriousness and extreme urgency of the

matters involved, as well as Kabataan Partylist v. COMELEC Page 4
of 32 the grave and irreparable injuries that are sustained and will
continue to be sustained by Petitioners due to the assailed acts of
respondent. 12. This Petition involves the constitutionality of law and
questions of law, well within the jurisdiction of the Honorable Court.
Article VIII, Section 5 of the 1987 Philippine Constitution is
instructive: Section 5. The Supreme Court shall have the following
powers: (2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in: a) All cases in which the
constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. b) All cases involving the
legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto. c) All cases in which the jurisdiction of
any lower court is in issue. d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher. e) All cases in which only
an error or question of law is involved. 13. In the instant Petition, the
serious and grave constitutional questions involved in this case and
the repercussions of the unconstitutional acts of the respondent on
the separation of powers between the executive and legislative
branches of government and on the statute which provides for a
system of continuing registration of voters to prevent the
disenfranchisement of millions of voters constitute exceptional and
compelling circumstances to justify resort to this Honorable Courts
jurisdiction in the first instance. 14. Furthermore, at the core of the
issues raised in the instant Petition is a most important constitutional
right the right of suffrage. Kabataan Partylist v. COMELEC Page 5
of 32 TIMELINESS OF THE PETITION 15. Republic Act No. 10367
or An Act Providing for Mandatory Biometrics Voter Registration,
was signed as law by President Benigno S. Aquino on February 3,
2013. 16. Respondent COMELEC issued three resolutions
implementing R.A. 10367, all stating that the registration records of
voters without biometrics data who failed to submit for validation on
or before the last day of filing of applications for registration for the
purpose of the May 9, 2016 National and Local Elections shall be
deactivated in the last ERB hearing to be conducted prior to said

election, and that deactivated voters shall not be allowed to vote. 17.
Petitioners attach hereto as Annex A the certified true copy of
Resolution No. 9721 dated June 26, 2013; as Annex B the certified
true copy of Resolution No. 9863 dated April 1, 2014; and as Annex
C the certified true copy of Resolution No. 10013 dated November
3, 2015. 18. On October 14, 2015, petitioner organizations formally
appealed for respondent COMELEC to extend the period for voters
registration and biometrics capture, through an URGENT REQUEST
to the Commission on Elections En Banc. Respondent has yet to
respond or comment as of even time. 19. Thus, on October 29,
2015, Petitioner Ridon, together with several other students and
youth, filed a petition for prohibition and mandamus before this
Honorable Court, docketed as G.R. No. 220918, questioning the
COMELECs termination of voters registration on October 31, 2015.
20. Based on the COMELEC Resolutions, active voters that fail to
submit to the biometrics validation procedure shall be deactivated
and will be expunged from the roll of voters starting November 16,
2015. 21. Thus, this Petition to enjoin the deactivation of voters,
pursuant to Resolution Nos. 9721, 9863, and 10013 is timely, having
been filed within the sixty (60) day period mandated by Rule 65 of
the Rules of Court. THE PARTIES 22. Petitioner KABATAAN
PARTY-LIST, as represented by its party-list representative in the
House of Representatives, JAMES MARK TERRY L. RIDON, and its
national president, MARJOHARA Kabataan Partylist v. COMELEC
Page 6 of 32 S. TUCAY, is a youth sector party-list currently serving
in the House of Representatives. Both are of legal age and Filipino,
and also suing in their personal capacities. The office address of
Kabataan Party-list is at North Wing Rm. 616, House of
Representatives, Batasan Hills, Quezon City. For this purpose, the
copy of the Board Resolution authorizing Ridon and Tucay to file this
complaint for and in behalf of KABATAAN PARTY-LIST is hereto
attached as ANNEX D. 23. Petitioner SARAH JANE I. ELAGO,
PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP), an alliance organization of tertiary student
councils in the Philippines, is 24 years old and Filipino. Her office
address is at 1139-A, P. Guevarra St., Brgy. Central Market, Sta.
Cruz, Manila. She is a registered voter. 24. Petitioner VENCER

MARI E. CRISOSTOMO, CHAIRPERSON OF THE ANAKBAYAN, a
national youth mass organization, is of legal age and Filipino. His
residential address is at 56 Caimito, Mapayapa Village 1, Quezon
City. He is a registered voter. 25. Petitioner MARC LINO J. ABILA,
NATIONAL PRESIDENT OF THE COLLEGE EDITORS GUILD OF
THE PHILIPPINES (CEGP), a national formation of campus student
publications, is 23 years old and Filipino. His office address is at
1139-A, P. Guevarra St., Brgy. Central Market, Sta. Cruz, Manila. He
is a registered voter. 26. Petitioner EINSTEIN Z. RECEDES,
DEPUTY SECRETARY-GENERAL OF ANAKBAYAN, a national
youth mass organization, is of legal age and Filipino. His residential
address is at 25 Mozart St., Ideal Subdivision, Capitol District,
Quezon City. 27. Petitioner CHARISSE BERNADINE I. BAEZ,
CHAIRPERSON OF THE LEAGUE OF FILIPINO STUDENTS, a
national student mass organization, is of legal age and Filipino. Her
residential address is at 444 M.F. Jhocson St., Sampaloc, Manila.
She is a registered voter. 28. Petitioner ARLENE CLARRISE Y.
JULVE, 26 years old, is a member of AGHAM Advocates of Science
and Technology for the People. She is a Filipino and is registered
voter since October 2009 and has actively participated in past
national elections. Her residential address is at Block 24 Lot 7 Phase
4 Soldiers Hills 4, Molino 6, Bacoor City, Cavite. 29. Petitioner
SINING MARIA ROSA L. MARFORI, 37 years old, is a Filipino and a
registered voter who has participated in the Kabataan Partylist v.
COMELEC Page 7 of 32 past two general elections. Her residential
address is at 56 Caimito Street, Mapayapa Village 1, Quezon City.
30. All notices, orders, resolutions, judgment and other court
processes pertinent to ALL PETITIONERS may be served through
counsel at 3F Maaralin cor. Matatag Sts., Central District, Quezon
City 1109. 31. Respondent COMMISSION ON ELECTIONS is the
administrative body which has issued and implemented Resolution
Nos. 9721, 9863, and 10013. Respondents office address is Palacio
Del Gobernador Building, Intramuros, Manila where it may be served
notices, orders, resolutions, judgment and other court processes.
JURISDICTIONAL AVERMENTS A. Parties have legal standing 32.
Petitioner Kabataan Party-List, the first and only youth party-list
group in Philippine Congress today, is suing for and in behalf of its

constituency. It is a large network of energized and proactive young
people who are leaders in various organizations, and formations,
with a membership of over 90,000 youth across the country. 33. The
issuance and implementation of Resolution Nos. 9721, 9863, and
10013 are ultra vires acts on the part of respondent for instituting
additional substantive qualifications for voters in violation of the 1987
Philippine Constitution as such acts constitute a clear usurpation of
the legislative power of Congress. 34. Verily, the unconstitutional
acts of the respondent infringe upon the prerogatives of herein
Petitioner, through its representative Ridon, as legislator.1 35.
Hence, Petitioner Ridon has locus standi as a legislator. 36.
Moreover, the issues raised hereunder are of transcendental
importance which must be settled early given the farreaching
implications of the unconstitutional acts of respondent on the
separation of powers between the executive and legislative branches
of government and on the citizens fundamental right of suffrage. 1
Gonzales v. Macaraig Jr., 191 SCRA 452 (2000) and Sandoval v.
PAGCOR, G.R. No. 138982, November 29, 2000 Kabataan Partylist
v. COMELEC Page 8 of 32 37. Petitioners Tucay, Elago,
Crisostomo, Abila, Recedes, and Baez, are suing in their capacities
as concerned citizens under the same grounds as petitioner Ridon.
This is a suit for and in behalf of millions of unregistered, deactivated
and delisted voters, particularly those who are members of their
respective organizations. 38. Petitioners Julve and Marfori are
directly aggrieved, real parties in interest who will suffer injury
traceable to the act challenged herein. This Petition is a motion to
redress that injury. Petitioner Julve is considered an active voter
within the purview of R.A. 8189. In fact, in the 2013 senatorial
elections, she served as a Poll Clerk at Saint Alphonsus Liguori
Integrated School Brgy. Molino 2, Bacoor City, Cavite. However,
when she checked her registration status recently, she found out that
the Commission on Elections has deactivated her registration due to
failure to submit to the mandatory biometrics procedure. 39.
Petitioner Marfori likewise is an active voter, who was informed by
the Commission on Elections via registered mail that her voting
records were also deactivated due to failure to submit to the
mandatory biometrics procedure. She received two letters: initial

notice to present herself before the COMELEC for biometrics capture
in July 2015, and final notice to validate her registration in October
2015. She attempted several times to validate her registration, but
was deterred by the long lines that took up too much time from her
work. A photograph of the notices, as well as the covering address
slip, from respondent COMELEC are attached as Annexes E and
E-1, and F and F-1. The originals are with petitioner Marfori, in
case the COMELEC reopens registration and biometric capture. 40.
All of the petitioners have locus standi as concerned citizens seeking
to enforce a public constitutional right. B. There are legal and factual
grounds to directly invoke the jurisdiction of this Court. 41. There are
legal and factual grounds for the petitioner to directly invoke the
jurisdiction of this Honorable Court. 42. This Petition is covered by
the exception on principle of hierarchy courts, and there is legal and
factual basis justifying direct recourse to this Honorable Court
through this Petition for Certiorari and Prohibition. In Ernesto Dy vs.
Hon. Gina M. Bibat- Palamos, etc., et al.2 : 2 G.R. No. 196200,
September 11, 2013 Kabataan Partylist v. COMELEC Page 9 of 32
Under the principle of hierarchy of courts, direct recourse to this
Court is improper because the Supreme Court is a court of last resort
and must remain to be so in order for it to satisfactorily perform its
constitutional functions, thereby allowing it to devote its time and
attention to matters within its exclusive jurisdiction and preventing
the overcrowding of its docket. Nonetheless, the invocation of this
Courts original jurisdiction to issue writs of certiorari has been
allowed in certain instances on the ground of special and important
reasons clearly stated in the petition, such as,(1) when dictated by
the public welfare and the advancement of public policy; (2) when
demanded by the broader interest of justice; (3) when the challenged
orders were patent nullities; or (4) when analogous exceptional and
compelling circumstances called for and justified the immediate and
direct handling of the case. 43. Petitioners submit that this case is
covered by the first, second and third exceptions enumerated in the
above-cited case. The Petition raises issues affecting a constitution
right. It involves the interest of the public, especially so of the millions
who will be deprived of their right to vote. This interest is being
violated by the issuance of the assailed resolutions which are patent

nullities in view of the failure of the public respondents to observe
procedural and. C. Exhaustion of Administrative Remedies is not
applicable in this case. 44. In Philip L. Go, et al. vs. Distinction
Properties Development and Construction, Inc.3 , this Honorable
Court enumerated the instances where exhaustion of administrative
remedies may be dispensed with allowing direct resort to judicial
remedy. Thus, this Honorable Court held: The doctrine of
exhaustion of administrative remedies is a cornerstone of our judicial
system. The thrust of the rule is that courts must allow administrative
agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective
competence. It has been held, however, that the doctrine of
exhaustion of administrative remedies and the doctrine of primary
jurisdiction are not ironclad rules. In the case of Republic of the
Philippines v. Lacap, the Court enumerated the numerous
exceptions to these rules, namely: (a) where there is estoppel on the
part of the 3 G.R. No. 194024, April 25, 2012 Kabataan Partylist v.
COMELEC Page 10 of 32 party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of
jurisdiction; (c) where there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant; (d) where the amount
involved is relatively so small as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where
judicial intervention is urgent; (g) where the application of the
doctrine may cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) where the issue of nonexhaustion of administrative remedies has been rendered moot; (j)
where there is no other plain, speedy and adequate remedy; (k)
where strong public interest is involved; and (l) in quo warranto
proceedings. (Emphasis supplied) 45. This case is covered by the
multiple exceptions to the principle of exhaustion of administrative
remedies. As previously stated, the assailed Resolutions are patent
nullities, the implementation of which is detrimental to public interest.
Moreover, there is urgency to this Petition considering that the
deactivation of voters began on November 16, 2015, and whatever
available administrative remedy will not be sufficient and speedy to

give ample remedies to the petitioners. 46. Besides, there is no
available and clear procedure designed to afford an adequate and
timely opportunity to question the propriety of the deactivation. These
are sufficient justifications for the petitioner to resort to judicial
remedy without exhausting administrative remedies. 47. The same
grounds also compelled the petitioners to file this Petition without
seeking a reconsideration of the assailed resolutions. Thus, the filing
of this Petition for Certiorari without filing a Motion for
Reconsideration is likewise justified under the circumstances.4 48.
The petitioners validly availed of the remedy of Certiorari and
Prohibition under Rule 65 of the Rules of Court considering that the
respondent usurped an authority the exercise of which requires the
exercise of discretion and is considered to be quasi-judicial in nature.
As such, it is correctible through certiorari proceedings under Rule
65 of the Rules of Court. 4 Please see: Nemia Castro vs. Rosalyn
Guevarra, et al., G.R. No. 192737, April 25, 2012 Kabataan Partylist
v. COMELEC Page 11 of 32 STATEMENT OF FACTS AND OF THE
CASE 49. On February 15, 2013, President Aquino signed into law
R.A. 10367, known as the Biometrics Law, a consolidation of Senate
Bill No. 1030 and House Bill No. 3469 and passed by the Senate and
the House of Representatives on December 12, 2012 and December
11, 2012, respectively. 50. Section 3 of R.A. 10367 provides that all
registered voters whose biometrics data which include photograph,
fingerprint, and signature details from the voter have not yet been
captured should submit to the validation or biometrics capturing
procedure. 51. Section 7 of the same law provides that voters who
fail to submit for validation on or before the last day of filing of
application for registration for purposes of the May 2016 elections
shall be deactivated pursuant to this Act. RA 10367 defines
deactivation as the removal of the registration record of the
registered voter from the corresponding precinct book of voters for
failure to comply with the validation process. 52. Section 8 of RA
10367 further provides for a system of reactivation, to wit,
Reactivation. Those deactivated under the preceding section may
apply for reactivation after the May 2016 elections following the
procedure provided in Section 28 of Republic Act No. 8189. 53. On
June 26, 2013, respondent COMELEC released Resolution No.

9721, which serve as the implementing rules and regulations of R.A.
10367. Under this resolution, COMELEC provided the procedure for
validation, deactivation, and reactivation of voter records. 54. The
resolution formally instituted the no biometrics data, no boto
(voting) policy in this wise: Sec. 8. Deactivation. - The registration
records of voters without biometrics data who failed to submit for
validation on or before the last day of filing of applications for
registration for the purpose of the May 9, 2016 National and Local
Elections shall be deactivated in the last ERB hearing to be
conducted prior to said elections. Deactivated voters shall not be
allowed to vote. Deactivation under this section shall comply with the
requirements on posting, ERB hearing and service of Kabataan
Partylist v. COMELEC Page 12 of 32 individual notices to the
deactivated voters. (Emphasis supplied.) 55. Ominously, the same
resolution noted that as of the last day of registration and validation
for the May 13, 2013 Elections on October 31, 2012, the total
number of registered voters without biometrics data is nine million
eighteen thousand two hundred fifty-six (9,018,256). The said
number of active registered voters, if unable to undergo the
validation procedure stipulated under RA 10367 will be subject to
deactivation and are in danger of losing their right to vote in the 2016
national and local elections. 56. On April 1, 2014, respondent
COMELEC released Resolution No. 9863 which amended certain
portions of Resolution No. 9853. Among other things, COMELEC
added under Resolution No. 9863 a new ground for the deactivation
of voters the failure to submit for validation pursuant to RA 10367.
57. In Resolution No. 9863, COMELEC instructed Election
Registration Boards (ERBs) in the country to deactivate the voter
registration records not only of those disqualified by law due to
criminal sentences and failure to participate in two successive
preceding regular elections, but also those who will fail to submit to
biometrics voter registration. 58. Under Resolution No. 9863, active
voters who fail to submit for validation will be deactivated and
expunged from the voter registration records, and will not be allowed
to participate in the 2016 national and local elections. The said move
effectively disqualifies active voters from exercising their right of
suffrage due to the imposition of a new substantive requirement. 59.

On November 3, 2015, COMELEC issued Resolution No. 10013
which promulgated the procedures in the deactivation of registration
records of voters who do not have biometrics data in the Voters
Registration System after the October 31, 2015 deadline of
registration and validation. Among other things, COMELEC clarified
in this resolution that only voters without biometrics data will be
deactivated, explaining that the registration records of voters with
incomplete biometrics data and those corrupted data in the database
shall not be deactivated and be allowed to vote in the May 9, 2016
national and local elections. 60. This clarification springs from reports
published by the media back in June 2015 that some two million
voter biometrics data Kabataan Partylist v. COMELEC Page 13 of 32
stored in the central office of COMELEC were found to be corrupted5
. The clarification on the status of voters with incomplete biometrics,
meanwhile, sought to address the fact that close to half a million
registered voters have incomplete biometrics information. 61. The
revelation that some two million voter biometrics data have been
corrupted has raised concerns on the infringement and/or threat to
privacy posed by the mandatory collection of biometrics data. 62. In
consonance with these issuances related to the implementation of
RA 10367, respondent COMELEC conducted the #NoBioNoBoto (No
Biometrics, No Vote) campaign, which supposedly aims to spread
awareness to everyone who will be affected by the new policy. 63.
Despite the #NoBioNoBoto campaign, however, official data
provided by respondent COMELEC through an official
communication dated October 22, 2015 to petitioner Ridon6 showed
that only three million five hundred ninety-nine thousand nine
hundred six (3,599,906) registered voters have undergone the
mandatory biometrics validation procedure, as of September 30,
2015. 64. In the same communication to petitioner Ridon, COMELEC
revealed that a total of three million fifty-nine thousand six hundred
one (3,059,601) registered voters remain without biometrics data as
of September 30, 2015. According to COMELEC, this figure is
equivalent to 5.86 percent of the total fifty-two million two hundred
thirty-nine thousand four hundred eighty-eight (52,239,488)
registered voters for the 2016 national and local elections. A certified
true copy of said document along with the attached tables is

integrally attached to this petition as Annex G. 65. It is thus
apparent that over three (3) million registered voters stand to illegally
lose their right of suffrage in the May 9, 2016 national and local
elections without the benefit of due process due to the
implementation of an additional requirement that is patently
unconstitutional. 66. Hence, this Petition. 5 Aquino, Leslie Ann.
Close to 2-M biometrics data files corrupted. Manila Bulletin, June
28, 2015. Retrieved from http://www.mb.com.ph/close-to-2mbiometrics-data-files-corrupted/ Last accessed November 22,
2015. 6 Letter of Atty. Teopisto E. Elnas, Jr. to Kabataan Partylist
Rep. Terry Ridon dated October 22, 2015, providing latest available
data of registered voters with and without biometrics. Kabataan
Partylist v. COMELEC Page 14 of 32 GROUNDS IN SUPPORT OF
THE PETITION I. BIOMETRICS VALIDATION AND DEACTIVATION
UNDER REPUBLIC ACT NO. 10367 AND ITS IMPLEMENTING
REGULATIONS ARE AN UNCONSTITUTIONAL SUBSTANTIAL
REQUIREMENT IMPOSED ON THE EXERCISE OF SUFFRAGE II.
BIOMETRICS VALIDATION GRAVELY VIOLATES
CONSTITUTIONAL DUE PROCESS, APPLYING THE STRICT
SCRUTINY TEST, AS IT IS NOT POISED AS A COMPELLING
REASON FOR STATE REGULATION AND IS AN
UNREASONABLE DEPRIVATION OF THE RIGHT TO SUFFRAGE
ARGUMENTS I BIOMETRICS VALIDATION AND DEACTIVATION
UNDER REPUBLIC ACT NO. 10367 AND ITS IMPLEMENTING
REGULATIONS ARE AN UNCONSTITUTIONAL SUBSTANTIAL
REQUIREMENT IMPOSED ON THE EXERCISE OF SUFFRAGE
67. Section 1, Article V of the 1987 Constitution states Suffrage
may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who
shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months
immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of
suffrage. (Emphasis supplied.) 68. The above-mentioned
constitutional provision constitutes a general grant of right to citizens
on the exercise of the right of suffrage, with clear prohibitions on the
imposition of substantive requirements such as literacy, property,

among others as a condition precedent for the exercise of suffrage.
Kabataan Partylist v. COMELEC Page 15 of 32 69. The right to
suffrage a right heavily guarded and guaranteed by the
Constitution lies at the heart of our democracy. Except for
requirements already enshrined in the Constitution, no other
substantive requirement should be imposed to hinder qualified voters
from the exercise of such sacred right. Imposing new limits to the
right to vote is tantamount to piercing through the very fabric of our
nationhood. 70. In the concurring and dissenting opinion of Chief
Justice Reynato C. Puno in Macalintal v. COMELEC7 , he discussed
the liberalization of the right of suffrage and discussed the
fundamental qualifications in the exercise of the right to suffrage,
stating thus x x x The 1987 Constitution further liberalized the right
of suffrage. For the first time, it required Congress to provide a
system for absentee voting by qualified Filipinos abroad and to
design a procedure for the disabled and the illiterates to vote without
assistance from other persons. Be that as it may, four qualifications
existing since the 1935 Constitution were retained: (1) Filipino
citizenship; (2) age; (3) one year residence in the Philippines; and (4)
six months residence in the place where the voter proposes to vote.
The wisdom of these four qualifications has not been questioned at
any given time in the history of our suffrage. It is easy to see the
reason. Suffrage is a political right appertaining to citizenship. Each
individual qualified to vote is a particle of popular sovereignty, hence,
the right of suffrage cannot be extended to noncitizens. As an
attribute of citizenship, suffrage is reserved exclusively to Filipinos
whose allegiance to the country is undivided. It is also conceded that
the right of suffrage can be exercised only by persons of a certain
age. Nobody could doubt the reason for preventing minors from
taking part in the political exercise. Voting is an act of choice and
involves prescience. It requires not only a familiarity of political
realities but also the maturity to make reasoned choices out of these
realities. But citizenship and age requirements are not enough. For
the vote to be more meaningful as an expression of sovereignty, the
voter must possess more than a passing 7 Chief Justice Puno,
Reynato. Concurring and Dissenting Opinion, Macalintal v.
COMELEC. G.R. No. 157013. July 2003. Kabataan Partylist v.

COMELEC Page 16 of 32 acquaintance with the problems and
prospects of the country. Thus, residence is imposed as a
qualification to exclude a stranger and a newcomer, unacquainted
with the conditions and needs of the community and not identified
with the latter. The residence requirement is also necessary for
administrative purposes such as the preparation of accurate list of
voters. xxx 71. In fact, this constitutional right has been a right given
utmost significance such that in a line of cases, the exercise of the
right of suffrage is indispensable to the existence of a republican
government. 72. In Macolor v. Amores, it was stated that the right of
suffrage is predicated upon the theory that the people who bear the
burden of government should share in the privilege of choosing the
officials of that government.8 73. In Pungutan v. Abubakar, Justice
Laurel was further quoted on the importance of the right of suffrage
to republicanism, stating thus xxx The right to vote has reference to
a constitutional guarantee of the utmost significance. It is a right
without which the principle of sovereignty residing in the people
becomes nugatory. In the traditional terminology, it is a political right
enabling every citizen to participate in the process of government to
assure that it derives its power from the consent of the governed.
What was so eloquently expressed by Justice Laurel comes to mind:
"As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies wrought by
the people through their Constitution in the interest of good
government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government,
necessarily 8 Macolor v. Amores. G.R. No. L-6806. November 5,
1953. Kabataan Partylist v. COMELEC Page 17 of 32 points to the
enfranchised citizen as a particle of popular sovereignty and as the
ultimate source of the established authority." xxx 74. It is thus
respectfully submitted that the current controversy on the
constitutionality of validation and deactivation under R.A. No. 10367
and its implementing regulations must be viewed with the
overwhelming consideration that the constitutional exercise of the
right of suffrage must be protected instead of restricted. Biometrics

validation rises to the level of additional, substantial qualification
where there is penalty of deactivation 75. Section 1 of R.A. No.
10367 states that it is the policy of the State to establish a clean,
complete, permanent and updated list of voters through the adoption
of biometric technology. 76. While this statutory state policy is indeed
a laudable objective, it must however be stated that it should
proceed without running afoul with the constitutional prohibition on
the imposition of substantial requirements in the exercise of suffrage.
77. The necessary question therefore is this: Does biometrics
validation and deactivation rise to the level of a substantive
qualification, akin to property and literacy, to merit a ruling of
unconstitutionality? 78. It is our most respectful position that
biometrics validation and deactivation under R.A. 10367 and its
implementing regulation rises to the level of an unconstitutional
substantive qualification on the constitutional right of suffrage. 79. As
early as the 1973 Constitution, the imposition of substantive
requirements such as property and literacy had been constitutionally
prohibited. 80. The reason for this is to reflect the democratic and
republican nature of the elections, in which the non-ability to read or
write and the non-possession or non-ownership of property shall not
bar any citizen from the exercise of the right of suffrage. 81. This
meant that the uneducated and the poor have as much of a right to
vote as the educated and the rich. Kabataan Partylist v. COMELEC
Page 18 of 32 82. The statutory requirement of biometric validation
under R.A. No. 10367 and its implementing regulation is no different
from the unconstitutional requirement of literacy and property,
because mere non-validation already absolutely curtails the exercise
of the right of suffrage through deactivation. 83. It is our submission
that the framers of the Constitution did not envision that a mere
technology solution such as biometrics validation should curtail the
right of suffrage. 84. Biometrics validation is a mere tool for the
positive identification of voters and does not purport itself as the
substitute for other proof of the fundamental requirements for the
exercise of the right of suffrage. 85. Voters should still, without issue,
be able to show their credentials to the election officers in the
precinct even without biometrics validation, whether through their
Voters ID Card, or other accompanying documents as proof of the

fundamental requirements for the exercise of the right. 86. If the
concern of the COMELEC in implementing this technology solution is
to remove dead, redundant, and other similar types of voters from its
master list, there are many other ways to do so without imposing this
unconstitutional substantive requirement. 87. In fact, the COMELEC
could have proceeded with biometrics validation without this
constitutional question if there was no penalty of deactivation. 88. By
imposing the penalty of deactivation in the event of failure to validate,
it has risen to the level of an unconstitutional substantive
requirement in the exercise of the right of suffrage. Biometrics
deactivation is not the disqualification by law contemplated by the
1987 Constitution 89. Section 1, Article V of the 1987 Constitution
states Suffrage may be exercised by all citizens of the Philippines
not otherwise disqualified by law, who are at least eighteen years of
age, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six
months immediately preceding the election. No literacy, property,
Kabataan Partylist v. COMELEC Page 19 of 32 or other substantive
requirement shall be imposed on the exercise of suffrage. (Emphasis
supplied.) 90. Some might be of the view that biometrics deactivation
due to non-validation under R.A. No. 10367 constitutes the
disqualification by law contemplated under the 1987 Constitution. 91.
This view is incorrect, because disqualification by law arises only in
the event of a criminal conviction in which the offense committed has
among its penalties either the perpetual or temporary special
disqualification for the exercise of the right of suffrage. 92. The
disqualification contemplated in the Constitution necessitates the
completion of full criminal proceedings with conviction before such
disqualification arises. 93. Furthermore, biometrics validation and
deactivation cannot be the disqualification by law contemplated in
the 1987 Constitution because it is a disqualification that does not
even comply with constitutional due process. Under COMELEC
Resolution Nos. 9721, 9863, and 10013, which are implementing
regulations of RA 10367, there is no such process or proceeding
outlined. In fact, COMELEC Resolution No. 9863 insipidly and
illegally added biometrics deactivation as ground for disqualification
of a registered voter. 94. Unlike criminal disqualification of the right of

suffrage which undergoes trial and conviction before any
disqualification is imposed, biometrics validation and deactivation
proceeds without notice and hearing to voters. 95. Surely, the
framers did not contemplate a disqualification by law of the right of
suffrage which would violate other constitutional rights. 96.
Biometrics, at the very least, is a type of registration that has been
imposed for voter registrants February 2013 onwards. 97. In fine,
these are the most compelling constitutional reasons for the
declaration of unconstitutionality of biometrics validation and
deactivation under R.A. No. 10367 and its implementing regulations.
98. The overarching consideration in resolving this question must be
the constitutional grant of right to the citizens to exercise their right of
suffrage, not the technology solutions intended by statute and its
regulations. Kabataan Partylist v. COMELEC Page 20 of 32 II
BIOMETRICS VALIDATION GRAVELY VIOLATES
CONSTITUTIONAL DUE PROCESS, APPLYING THE STRICT
SCRUTINY TEST, AS IT IS NOT POISED WITH COMPELLING
REASON FOR STATE REGULATION AND IS AN
UNREASONABLE DEPRIVATION OF THE RIGHT TO SUFFRAGE
99. All plausible infringements on the fundamental right to vote are to
be appreciated using the standard of strict scrutiny, under the due
process guaranty against arbitrary governmental encroachment
against the life, liberty and property of individuals. 100. In the case of
White Light Corporation v. City of Manila9 , the Supreme Court
delved into the standards for judicial review of statutes or
ordinances. In terms of judicial review of statutes or ordinances,
strict scrutiny refers to the standard for determining the quality and
the amount of governmental interest brought to justify the regulation
of fundamental freedoms. Strict scrutiny is used today to test the
validity of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights as expansion from its earlier
applications to equal protection. The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental
rights such as suffrage, judicial access, and interstate travel. 101.
The standard requires that there is a legislative classification that
impermissibly interferes with the exercise of fundamental right or
operates to the peculiar class disadvantage of a suspect class is

presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling
state interest and that it is the least restrictive means to protect such
interest. COMELECs biometric validation system creates artificial
classifications of voters 102. In the case at bar, petitioners contend
that the imposition of new guidelines as to registration creates
classes of voters, among them: first-time voters registered directly
through biometrics between 9 G.R. No. 122846, January 20, 2009
Kabataan Partylist v. COMELEC Page 21 of 32 May 2014 and
October 2015; prior voters who have complete biometric information
encoded and updated between May 2014 and October 2015; voters
from the prior two groups but with incomplete biometric information;
those who are considered active voters prior to November 16, 2015
but have no biometric data; those who are definitely unregistered.
103. Using this taxonomy, only the first time registrants and reregistrants would be allowed to vote. Notwithstanding COMELEC
pronouncements that those with incomplete information would still be
allowed to vote, the current regime when strictly applied only entitles
those with complete biometric information processed between May
2014, when the COMELEC began registration for the 2016 elections,
and October 31, 2015, the prescribed deadline. 104. Ergo, those
falling outside that class are to be deactivated and not allowed to
vote. This is made very clear in COMELECs tagline, #No Bio, No
Boto, and emphasized in Resolution No. 9721: Sec. 8.
Deactivation. - The registration records of voters without biometrics
data who failed to submit for validation on or before the last day of
filing of applications for registration for the purpose of the May 9,
2016 National and Local Elections shall be deactivated in the last
ERB hearing to be conducted prior to said elections. Deactivated
voters shall not be allowed to vote. Deactivation under this section
shall comply with the requirements on posting, ERB hearing and
service of individual notices to the deactivated voters. 105. Where
the policy of the state is to obtain a clean, complete, permanent and
updated list of voters10, it cannot be shown that biometric
validation, especially for those voters who fall outside the privileged
class, the obedient group, is State regulation that is narrowly tailored
and fit towards the purpose. 106. Biometric validation discriminates

against groups of citizens who may have faulty or incomplete
biometric information, those who have already registered but are
incapable of trooping to the COMELEC offices or malls, those who
patiently waited but were not accommodated, and those who were
not adequately informed and guided about the new policy. 107.
There is already an existing system of registration that strives
towards the same objectives. Respondent COMELEC cannot 10
Section 1, Declaration of Policy, RA 10367 Kabataan Partylist v.
COMELEC Page 22 of 32 insist that its new system, i.e. biometric
validation, blanket supersedes and overruns the previous one,
though it may be manual. 108. Applying the strict scrutiny test, the
burden is thence on the government to prove that the artificial
classification created is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such
interest. 109. What constitutes compelling interest? The Court in
Serrano v. Gallant11 opined in this wise: [It] is measured by the
scale of rights and powers arrayed in the Constitution and calibrated
by history. It is akin to the paramount interest of the state for which
some individual liberties must give way, such as the public interest in
safeguarding health or maintaining medical standards, or in
maintaining access to information on matters of public concern. 110.
Petitioners submit that the means forwarded by the biometrics law,
and the COMELEC resolutions that penalize noncompliance, are
simply not closely fit nor hewn to the State interest of accurate voters
details to forward clean and honest elections. Deactivation by
November 16, 2015 involves the appurtenant issue of premature
termination of registration 111. COMELEC Resolution No. 9863 sets
the timeframe for deactivation, as such: B. 2. The Election
Registration Board (Boards) shall: (a) Deactivate the VRRs based on
the following grounds: x x x 7. Those who failed to submit for
validation despite notice on or before October 31, 2015. Deactivation
for cases falling under this ground shall be made during the
November 16, 2015 Board hearing. x x x 112. Fixing the schedule
on such date necessarily references the precursor case petitioners
filed on October 29, 2015. The deadline of November 16, 2015 for
deactivation is premature, being well ahead of the schedule for
continuing registration prescribed by R.A. 8189. 11 G.R. No. 167614,

March 24, 2009 Kabataan Partylist v. COMELEC Page 23 of 32 113.
Section 8 of The Voters Registration Act of 1996 is clear and
categorical about the system of continuing registration of voters,
thus: Section 8. System of Continuing Registration of Voters. The
personal filing of application of registration of voters shall be
conducted daily in the office of the Election Officer during regular
office hours. No registration shall, however, be conducted during the
period starting one hundred twenty (120) days before a regular
election and ninety (90) days before a special election. (Emphasis
supplied) 114. The foregoing provision is unequivocal and definite
that the filing of application of registration of voters shall be
conducted daily but no registration shall be conducted during the
period starting one hundred twenty (120) days before a regular
election and ninety (90) days before a special election. 115. The
start of the 120-day prohibitive period is on January 9, 2015 and until
May 9, 2015. Thus, the last day for the filing of application of
registration alongside biometrics capture should be January 8,
2015 instead of October 31, 2015 laid down in the assailed
COMELEC resolutions, about seventy (70) days less than that
prescribed by the statute. 116. Respondent COMELEC has issued
the assailed resolutions based on its power to issue rules and
regulations in the implementation of election laws. Petitioners do not
deny that respondent COMELEC has the power to issue rules and
regulations for the filing of the application of registration of voters.
117. However, it is noteworthy to emphasize at this moment the wellsettled doctrines as regards the power to promulgate implementing
rules and regulations and the nature and character of such
implementing rules and regulations, thus: It must be stressed that
the power of administrative officials to promulgate rules in the
implementation of a statute is necessarily limited to what is provided
for in the legislative enactment. The implementing rules and
regulations of a law cannot extend the law or expand its coverage,
as the power to amend or repeal a statute is vested in the legislature.
xxx. All that is required is that xxx the regulation does not contradict
but conforms with the standards prescribed by law. [The Public
Schools District Supervisors Association v. Hon. Kabataan Partylist
v. COMELEC Page 24 of 32 Edilberto C. De Jesus, G.R. No.

157286, June 16, 2006] (Emphasis supplied) The implementing
rules cannot add to or detract from the provisions of the law it is
designed to implement. [The Honorable Secretary of Finance v. The
Honorable Ricardo M. Ilarde, G.R. No. 121782, May 9, 2005]
(Emphasis supplied) 118. Thus, it cannot be gainsaid that by
providing a period different than that prescribed under Section 8 of
The Voters Registration Act of 1996, respondent COMELEC has
actually amended the said statute. The assailed Resolution has
detracted from said Section 8 and has amended The Voters
Registration Act of 1996. And this is manifestly an unconstitutional
exercise of legislative power; it is beyond the province of
administrative agencies, thus a serious and grave violation of the
1987 Philippine Constitution. Voters to be deactivated are not
afforded due process 119. COMELEC attempts to remedy its
position by providing opportunities for voters to protest their
deactivation or delistment. 120. Resolution No. 10013 provides: A.
PRE-ELECTION REGISTRATION BOARD (ERB) HEARING The
Election Officers shall: 1. Within three (3) days after the October 31,
2015 deadline, generate and print four (4) sets of lists of voters
without biometrics data in the Voter's Registration System (VRS); 2.
Registration records of voters with incomplete biometrics data and
those corrupted data (biometrics) in the database shall not be
deactivated and be allowed to vote in the May 9, 2016 Synchronized
National, Local and ARMM Regional Elections; 3. Post the lists of
voters without biometrics data in the bulletin boards of the
City/Municipal hall , Office of the Election Officer and in the barangay
hall a long with the notice of ERB hearing; Kabataan Partylist v.
COMELEC Page 25 of 32 4. Send individual notices to the affected
voters included in the generated list of voters without biometrics
data; 5. Any opposition /objection to the deactivation of records shall
be filed not later than November 9, 2015 in accordance with the
period prescribed in Section 4. Resolution No. 9853; 6. Submit to the
ERB a copy of the list of voters without biometrics data for
deactivation; B. DURING ELECTION REGISTRATION BOARD
(ERB) HEARING The ERBs shall, based on the list of voters without
biometrics data, order the deactivation of registration records on the
ground of "failure to validate"; 1. Indicate in the Minutes of the

proceeding the number of registration records being deactivated; and
2. The conduct of deactivation proceedings shall be summary in
nature. No dilatory tactics or scheme that will delay the proceedings
shall be countenanced by the Board and the resolution/decision of
the objection/opposition shall be based on the evidence presented.
C. POST ELECTION REGISTRATION BOARD (ERB) HEARING
The Election Officers shall: 1. Execute the ERB Order by tagging the
registration records of voters without biometrics data and
subsequently deactivate the same in the VRS; 2. Remove the
deactivated Voters' Registration Records (VRRs) from the
corresponding Book of Voters and place the same in the inactive
file/folder, properly marked "Deactivated VRR" pursuant to Republic
Act No. 10367; 3. Include in the generation and submission of
Quarterly Progress Reports, the total number of voters deactivated
by reason of failure to validate; and Kabataan Partylist v. COMELEC
Page 26 of 32 4. Send individual notices to the deactivated voters
within five (5) days from the last day of ERB hearing. 121.
Noticeable among the provisions are the short periods of time
between hearing and notice, and the summary nature of the
proceedings. Questionable at present is the actual conduct of the
deactivation procedure for the three million who stand to be
disenfranchised of their right to vote. 122. But even granting that
procedural due process has been observed, and the issue were to
be confined solely to such, there would arise absurd situation of
arbitrary government action, provided the proper formalities are
followed. 123. Thus, substantive due process as earlier discussed
would complete the protection envisioned by the due process clause.
It inquires whether the government has sufficient justification for
depriving a person of life, liberty, or property.12 The question of
substantive due process, moreso than most other fields of law, has
reflected dynamism in progressive legal thought tied with the
expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though
of constitutional due process has not been predicated on the
frequency with which it has been utilized to achieve a liberal result
for, after all, the libertarian ends should sometimes yield to the
prerogatives of the State. Instead, the due process clause has
acquired potency because of the sophisticated methodology that has
emerged to determine the proper metes and bounds for its
application.13 Poor experience with biometrics should serve as
warning against exacting adherence to the system 124. Authorities
have warned that the country will not be able achieve the stated
objective of establish[ing] a clean, complete, permanent and
updated list of voters through the adoption of biometric technology.
COMELEC Chairman Andres Bautista himself has recently
announced that the poll body will still be using the old manual
method of validating voters identities for purposes of the 12 Please
see White Light. 13 White Light, supra note 8. Kabataan Partylist v.
COMELEC Page 27 of 32 2016 national and local elections. In other
words, COMELEC itself defeats the sole purpose of biometrics
registration by opting for a manual verification process instead of
biometric voter authentication.14 125. To deepen the discussion on
voter registration and mandatory biometrics capturing, petitioners
feel the need to discuss the experience of other nations. 126.
Employing biometrics can only help solve imminent fraud (e.g.
double registration) and not all other problems faced by election
management bodies (EMBs) in conducting elections (e.g. vote
buying, source code manipulation, etc). This is why EMBs are tasked
to study carefully what appropriate voter registration system to
employ so that it addresses the needs of the country. Several
countries in Africa and Latin America employ biometrics in their voter
registration systems and have produced varied results. These
countries include Bolivia, Cameroon, Colombia, Cote dIvoire,
Ghana, Guatemala, Venezuela, and Uganda. 127. In Guatemala, for
example, decided in 2007 to use biometrics in their voter registration.
The International Crisis Group (ICG), in a report, said that the
registration process has been fairly disastrous: The exercise was
overambitious from the start. Planners misjudged the time required
to retrieve and sort old data from municipalities and then collect and
verify new data from around fourteen million Guatemalans. The bad
design was compounded by corruption. Deputies in Congress and
RENAPs managers, who have since been replaced, reportedly
awarded contracts inappropriately, or at least without sufficient

transparency. Ill-qualified cronies were appointed to key positions.
The combination of poor design, nepotism and incompetence led,
unsurprisingly, to a deficient registration. The exercise has cost far
more than originally projected but remains incomplete. Politicians,
especially from opposition parties, and some in civil society have
accused RENAP of inflating registration numbers so as to benefit the
ruling party.15 14 http://www.manilatimes.net/comelec-jeopardizingclean-elections-in- 2016/228256/ 15 Ibid. Kabataan Partylist v.
COMELEC Page 28 of 32 128. The Guardian reports that Britains
move to individual voter registration has made a simple process
more complex and potentially less democratic. Reporter Paul
Wheeler said: Individual electoral registration voting may be a good
idea but the way it has been introduced in the past four years has
been a disaster. Voters whose existing details cannot be confirmed
by data matching with a single Department for Work and Pensions
database of national insurance numbers have to provide additional
forms of identification.16 The most recent attempt in 2013 at this
data matching found more than 7 million voters currently on the
register were not matched and would need to provide additional
evidence of residence. The Cabinet Office insists the switch to
individual voter registration will not affect the general election since
anyone on the old household register in December 2013 will be
entitled to vote in 2015 - but anyone who has moved house in the
interim does need to re-register. Wheeler warns that up to 7 million
registered voters will be removed from the register if they fail to
provide the additional information by the end of 2015. This is
comparable to whats happening in the country as registered voters
are burdened to provide their biometric data or risk getting
disenfranchised.17 129. Voter registration employing biometrics has
delayed the electoral process in many states. 130. The European
Union (EU) observer report from 2010 discusses the launch of a
biometric registration phase in Cote dIvoire, conducted through a
French legal company. Technically complex and crystallizing the
profound lack of confidence between the political parties, the voter
registration phase was prolonged from six weeks initially planned
and lasted ten (10) months.18 131. The government of Uganda
launched a new photographic registry in 2001. When put into action

in 2006, at least two (2) million people were not able to obtain their
ID cards. In 2010 the commission was better prepared but the
president demanded that they begin again with a new biometric
system using fingerprint technology, requiring everyone to register
anew. Four million people registered, 16
http://www.theguardian.com/public-leadersnetwork/2015/feb/05/missingvoters-individual-electoral-registrationdisaster 17 Ibid. 18 Ibid. Kabataan Partylist v. COMELEC Page 29 of
32 but their ID cards were never produced. 46 According to the
Commonwealth Observer Group, although the law provides for the
issuance of voter cards, the commission decided not to use them
because they did not have the resources or time to issue them;
therefore, the only identification requirement at the polling station
was to have ones name on the registration list.47 The country is still
trying to implement the new biometric system, but as of 2011 only
400 cards were issued. 132. Kenya, a country that requires the use
of a national ID card for registration and voting, has also confronted
capacity issues. A 2012 National Democratic Institute (NDI) report
noted, In July 2011, news reports indicated that approximately four
million youth were in danger of disenfranchisement due to nonissuance of national identity cards. This was attributed to inadequate
material resources to facilitate registration and to issue identity
cards, which had resulted in the Ministrys suspension of issuing new
national identity cards between January 2011 and July 2011. While
the process has since resumed, it is believed that millions of youth
remain under threat of disenfranchisement.19 133. There are some
groups that think that biometric capture for voter registration is an
additional burden on the part of the voter because this creates an
artificial barrier that disenfranchises voters should they fail to
comply. Election expert Tova Wang noted that: [L]aunching a new
biometric system, because it can be so complex and vulnerable to so
many different variables, such as environmental and geographical
challenges, lack of training and skills, mechanical breakdowns,
delays, and usually necessitates to re-registration of every citizen in
the country within a finite period of time, can cause
disenfranchisement.20 APPLICATION FOR PRELIMINARY
MANDATORY INJUNCTION AND/OR TEMPORARY

RESTRAINING ORDER 134. Petitioners are likewise praying for the
issuance of a Preliminary Mandatory Injunction and/or Temporary
Restraining Order due to the seriousness and extreme urgency of
the matters involved, as well as the grave and irreparable injuries
that are sustained and will continue to be sustained by Petitioners
due to the unconstitutionality of COMELEC Resolution Nos. 9721,
9863, and 10013, alongside the patent violation of Section 8 of The
Voters 19 Ibid. 20 Tova Wang (n.d.). Voter Identification
Requirements and Public International Law: An Examination of Africa
and Latin America. Kabataan Partylist v. COMELEC Page 30 of 32
Registration Act of 1996 with voter deactivation commencing on
November 16, 2015, stating thus: a. That Petitioners replead by
reference the foregoing allegations as well as the allegations
hereunder, as part of this application; b. That grave and irreparable
injury results to Petitioner Ridon as a legislator, who has sustained
and will to continue to sustain direct injury by virtue of the usurpation
of the legislative power of Congress by respondent in the issuance
and implementation of the assailed Resolutions; c. That grave and
irreparable injury results to Petitioners as concerned citizens, and to
the over three million voters who will be deprived of the right to
suffrage for the May 9, 2016 elections due to failure to comply with
biometric validation; d. That Petitioners and millions of registrants
and voters are entitled to the relief demanded in the instant Petition,
and part of such relief consists in requiring respondent to desist from
deactivation of millions of voters registration without biometric
information, and parallelly, to extend the deadline of application of
registration and biometric capture of voters during the pendency of
the present Petition, otherwise the instant Petition may be rendered
ineffectual; e. That the deactivation of the voters registration and
nonextension of deadline of application of registration of voters
during the pendency of the present Petition would work injustice to
Petitioners and millions of youth registrants and voters who cannot
be accommodated by respondent as of October 31, 2015 for
purposes of the May 9, 2016 elections, as it would cause the
disenfranchisement of millions of voters; f. That respondent is very
adamant in its efforts to delist and deactivate voters registration
without biometric information and refusal to extend the registration of

voters and capture of biometric information beyond the October 31,
2015 deadline, in violation of the rights of Petitioners and of millions
of first-time youth registrants and voters who cannot be
accommodated by respondent as of October 31, 2015 for purposes
of the May 9, 2016 elections. Thus, the necessity for a preliminary
mandatory injunction in order not to render the judgment ineffectual;
and; g. There is no other plain, speedy, and adequate remedy to
address these pervasive injuries to the Petitioners and to the millions
of youth registrants and voters who cannot be accommodated by
Kabataan Partylist v. COMELEC Page 31 of 32 respondent as of
October 31, 2015 for purposes of the May 9, 2016 elections, before
this Petition could be heard by the Honorable Court. 135. Hence,
based on the foregoing allegations, Petitioners are entitled to the
issuance of a Preliminary Mandatory Injunction and/or a Temporary
Restraining Order to require respondent to desist from deactivating
registered voters without biometric information and to extend the
system of continuing registration and capture of biometric information
of voters until January 8, 2016. PRAYER WHEREFORE, premises
considered, Petitioners most respectfully pray of the Honorable Court
the following: 1. That this Petition be given due course; 2. That a
Temporary Restraining Order or a Preliminary Mandatory Injunction
be issued to require the respondent Commission on Elections to
desist from deactivating registered voters without biometric
information and to extend the system of continuing registration and
capture of biometric information of voters until January 8, 2016; 3.
That after notice and hearing, a final order is issued: (a) Declaring
the respondent Commission on Elections COMELEC Resolution
Nos. 9721, 9863, and 10013 as unconstitutional and void; (b)
Declaring RA 10367 as unconstitutional, as applied to a classification
of citizens; (c) Commanding the respondent Commission on Elections
to desist from deactivating registered voters without biometric information, to
reinstate voters who are compliant with the requisites of R.A. 8189 but have
already been delisted, and to extend the system of continuing registration
and capture of biometric information of voters until January 8, 2016.
Petitioners likewise pray for such other reliefs as are just and equitable
under the circumstances.

SUPREME COURT
Manila
EN BANC
G.R. No. 179267
June 25, 2013
JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge,
Regional Trial Court-Branch 41, Bacolod City, and ROSALIE
JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all
surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of
86.8 million Filipinos- or 93 percent of a total population of 93.3
million adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just
as Christ loved the church and gave himself up for her2 failed to
prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino
Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands
and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by
women's groups, Congress enacted Republic Act (R.A.) No. 9262,
entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes." It took effect on March
27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts

of violence against women and their children (VAWC) perpetrated by
women's intimate partners, i.e, husband; former husband; or any
person who has or had a sexual or dating relationship, or with whom
the woman has a common child.5 The law provides for protection
orders from the barangay and the courts to prevent the commission
of further acts of VAWC; and outlines the duties and responsibilities
of barangay officials, law enforcers, prosecutors and court personnel,
social workers, health care providers, and other local government
officials in responding to complaints of VAWC or requests for
assistance.
A husband is now before the Court assailing the constitutionality of
R.A. 9262 as being violative of the equal protection and due process
clauses, and an undue delegation of judicial power to barangay
officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed,
for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial Court
(RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner),
pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of
marital infidelity on the part of petitioner, with threats of deprivation of
custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34
years old and the former was eleven years her senior. They have
three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted;
Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia,
3 years old.8
Private respondent described herself as a dutiful and faithful wife,

whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately
isolated her from her friends. When she took up law, and even when
she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home.
He was often jealous of the fact that his attractive wife still catches
the eye of some men, at one point threatening that he would have
any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a
bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted
to the household help about his sexual relations with said bank
manager. Petitioner told private respondent, though, that he was just
using the woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private
respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and
shook her with such force that caused bruises and hematoma. At
another time, petitioner hit private respondent forcefully on the lips
that caused some bleeding. Petitioner sometimes turned his ire on
their daughter, Jo-Ann, who had seen the text messages he sent to
his paramour and whom he blamed for squealing on him. He beat
Jo-Ann on the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her mother to
stay for fear that if the latter leaves, petitioner would beat her up.
Even the small boys are aware of private respondent's sufferings.
Their 6-year-old son said that when he grows up, he would beat up
his father because of his cruelty to private respondent. 11
All the emotional and psychological turmoil drove private respondent
to the brink of despair. On December 17, 2005, while at home, she
attempted suicide by cutting her wrist. She was found by her son
bleeding on the floor. Petitioner simply fled the house instead of
taking her to the hospital. Private respondent was hospitalized for
about seven (7) days in which time petitioner never bothered to visit,
nor apologized or showed pity on her. Since then, private respondent
has been undergoing therapy almost every week and is taking antidepressant medications.12
When private respondent informed the management of Robinson's
Bank that she intends to file charges against the bank manager,
petitioner got angry with her for jeopardizing the manager's job. He
then packed his things and told private respondent that he was
leaving her for good. He even told private respondent's mother, who
lives with them in the family home, that private respondent should
just accept his extramarital affair since he is not cohabiting with his
paramour and has not sired a child with her.13
Private respondent is determined to separate from petitioner but she
is afraid that he would take her children from her and deprive her of
financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single centavo. 14
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three corporations
326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation of which he and private respondent are both
stockholders. In contrast to the absolute control of petitioner over
said corporations, private respondent merely draws a monthly salary
of P20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less
than P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary
of P60,000.00 from Negros Rotadrill Corporation, and enjoys
unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16After private respondent
confronted him about the affair, petitioner forbade her to hold office
at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full
information about said businesses. Until the filing of the petition a
quo, petitioner has not given private respondent an accounting of the

businesses the value of which she had helped raise to millions of
pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of
violence against the private respondent and her children exists or is
about to recur, the RTC issued a TPO18 on March 24, 2006 effective
for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the
conjugal dwelling or family home within 24 hours from
receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers from
the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236
Realty Holdings Inc. (Republic Act No. 9262 states
"regardless of ownership"), this is to allow the Petitioner
(private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal
dwelling, or anytime the Petitioner decides to return to the
conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police
assistance on Sunday, 26 March 2006 because of the
danger that the Respondent will attempt to take her children
from her when he arrives from Manila and finds out about
this suit.
b) To stay away from the petitioner and her children, mother
and all her household help and driver from a distance of
1,000 meters, and shall not enter the gate of the subdivision
where the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise

communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly her
children, mother and household help, nor send gifts, cards,
flowers, letters and the like. Visitation rights to the children
may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber
firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the Respondent's
firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the
children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits,
bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March 2006,
which himself and as President of the corporations and his
Comptroller, must submit to the Court not later than 2 April
2006. Thereafter, an accounting of all these funds shall be
reported to the court by the Comptroller, copy furnished to
the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.
h) To ensure compliance especially with the order granting
support pendente lite, and considering the financial
resources of the Respondent and his threat that if the
Petitioner sues she will not get a single centavo, the
Respondent is ordered to put up a BOND TO KEEP THE
PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the

trial court issued an amended TPO,20 effective for thirty (30)
days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the
continued use of the Nissan Patrol and the Starex Van which
they are using in Negros Occidental.
j) The petitioners are given the continued use and
occupation of the house in Paraaque, the continued use of
the Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to
keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed
in the sum of One Hundred Fifty Thousand Pesos (Php
150,000.00) per month plus rental expenses of Fifty
Thousand Pesos (Php 50,000.00) per month until the matter
of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to
the Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the
denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of
hearing. He further asked that the TPO be modified by (1) removing
one vehicle used by private respondent and returning the same to its
rightful owner, the J-Bros Trading Corporation, and (2) cancelling or
reducing the amount of the bond from P5,000,000.00 to a more
manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the
modification of the TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again,
but subject only to the following modifications prayed for by private
respondent:
a) That respondent (petitioner herein) return the clothes and

other personal belongings of Rosalie and her children to
Judge Jesus Ramos, co-counsel for Petitioner, within 24
hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of
Court;
b) Respondent shall make an accounting or list of furniture
and equipment in the conjugal house in Pitimini St.,
Capitolville Subdivision, Bacolod City within 24 hours from
receipt of the Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod
City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he
cannot return until 48 hours after the petitioners have left, so
that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an
inventory of the household furniture, equipment and other
things in the conjugal home, which shall be submitted to the
Court.
d) Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes of the
three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be
declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24 hours
from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational expenses
of the children upon presentation of proof of payment of such
expenses.23
Claiming that petitioner continued to deprive them of financial

support; failed to faithfully comply with the TPO; and committed new
acts of harassment against her and their children, private respondent
filed another application24for the issuance of a TPO ex parte. She
alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no longer president,
with the end in view of recovering the Nissan Patrol and Starex Van
used by private respondent and the children. A writ of replevin was
served upon private respondent by a group of six or seven
policemen with long firearms that scared the two small boys, Jessie
Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school,
two men allegedly attempted to kidnap him, which incident
traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, JoAnn, by the arm and threatened her.26 The incident was reported to
the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the
"Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by
the housemaids working at the conjugal home of a complaint for
kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said
home to get her and her children's belongings. Finding some of her
things inside a housemaid's (Sheryl Jamola) bag in the maids' room,
private respondent filed a case for qualified theft against Jamola. 27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30)
days, which reads as follows:
1) Prohibited from threatening to commit or committing,

personally or through another, acts of violence against the
offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form with the
offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends,
relatives, employees or agents, from all the Petitioners
Rosalie J. Garcia and her children, Rosalie J. Garcia's three
brothers, her mother Primitiva Jaype, cook Novelita
Caranzo, driver Romeo Hontiveros, laundrywoman
Mercedita Bornales, security guard Darwin Gayona and the
petitioner's other household helpers from a distance of 1,000
meters, and shall not enter the gate of the subdivision where
the Petitioners are temporarily residing, as well as from the
schools of the three children; Furthermore, that respondent
shall not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for their
tuition or other fees directly, otherwise he will have access to
the children through the schools and the TPO will be
rendered nugatory;
4) Directed to surrender all his firearms including .9MM
caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental for the
period from August 6 to September 6, 2006; and support in
arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007
the amount of Php75,000.00 and Php25,000.00;
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

7) Directed to allow the continued use of a Nissan Patrol with
Plate No. FEW 508 and a Starex van with Plate No. FFD
991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another

vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease
or otherwise dispose of the conjugal assets, or those real
properties in the name of Jesus Chua Garcia only and those
in which the conjugal partnership of gains of the Petitioner
Rosalie J. Garcia and respondent have an interest in,
especially the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other properties
which are conjugal assets or those in which the conjugal
partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I1," and "I-2," including properties covered by TCT Nos. T186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and
E.B. Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the
transfer, sale, encumbrance or disposition of these abovecited properties to any person, entity or corporation without
the personal presence of petitioner Rosalie J. Garcia, who
shall affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her
signature will be forged in order to effect the encumbrance or
sale of these properties to defraud her or the conjugal
partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a
period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private
respondent's motion to modify/renew the TPO, the trial court directed
in its Order31 dated October 6, 2006 that petitioner be furnished a
copy of said motion. Nonetheless, an Order32 dated a day earlier,
October 5, had already been issued renewing the TPO dated August
23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally
terminated, the Temporary Protection Order issued on August 23,
2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such modifications as
may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no
longer submitted the required comment to private respondent's
motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before
the Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEBSP. No. 01698), with prayer for injunction and temporary restraining
order, challenging (1) the constitutionality of R.A. 9262 for being
violative of the due process and the equal protection clauses, and (2)
the validity of the modified TPO issued in the civil case for being "an
unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary
Restraining Order36 (TRO) against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court
dismissed36 the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the civil
case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the
protection orders issued by the trial court constituted a collateral
attack on said law.
His motion for reconsideration of the foregoing Decision having been

denied in the Resolution37 dated August 14, 2007, petitioner is now
before us alleging that
DELEGATION OF JUDICIAL POWER TO THE BARANGAY

OFFICIALS.38
The Ruling of the Court
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN
NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO
PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
Before delving into the arguments propounded by petitioner against

the constitutionality of R.A. 9262, we shall first tackle the propriety of
the dismissal by the appellate court of the petition for prohibition (CAG.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at
the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate
a question of constitutional law in advance of the necessity of
deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262
before the RTC of Bacolod City, petitioner argues that the Family
Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special
courts, of the same level as Regional Trial Courts. Under R.A. 8369,
otherwise known as the "Family Courts Act of 1997," family courts
have exclusive original jurisdiction to hear and decide cases of
domestic violence against women and children.42 In accordance with
said law, the Supreme Court designated from among the branches of
the Regional Trial Courts at least one Family Court in each of several
key cities identified.43 To achieve harmony with the first mentioned
law, Section 7 of R.A. 9262 now provides that Regional Trial Courts
designated as Family Courts shall have original and exclusive
jurisdiction over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family

Court shall have original and exclusive jurisdiction over cases of
violence against women and their children under this law. In the
absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where
the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City
remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization,
admiralty or insolvency.44 It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine
what are the valid and binding laws by the criterion of their
conformity to the fundamental law."46 The Constitution vests the
power of judicial review or the power to declare the constitutionality
or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not
only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co.,
Inc. v. CA48 that, "plainly the Constitution contemplates that the
inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review
of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the
1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in

question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at the earliest
opportunity in his Opposition to the petition for protection order
before the RTC of Bacolod City, which had jurisdiction to determine
the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against
Women and Their Children, lays down a new kind of procedure
requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an
opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be
issued.
(b) Respondent shall not include in the opposition any counterclaim,
cross-claim or third-party complaint, but any cause of action which
could be the subject thereof may be litigated in a separate civil
action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since
a counterclaim, cross-claim and third-party complaint are to be
excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for
money or other relief which a defending party may have against an
opposing party.50 A cross-claim, on the other hand, is any claim by
one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of
a counterclaim therein.51Finally, a third-party complaint is a claim that
a defending party may, with leave of court, file against a person not a
party to the action for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim.52 As pointed out by
Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a

statute is not a cause of action that could be the subject of a
counterclaim, cross-claim or a third-party complaint. Therefore, it is
not prohibited from being raised in the opposition in view of the
familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of
the case a quo because the right of private respondent to a
protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will
sustain, direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a
valid cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in
nature should not have deterred petitioner from raising the same in
his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC
nonetheless allows the conduct of a hearing to determine legal
issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the
need for further hearing, it may issue an order containing the
following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have
been marked and will be presented;
(d) Names of witnesses who will be ordered to present their
direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties
which shall be done in one day, to the extent possible, within
the 30-day period of the effectivity of the temporary

protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the
conduct of a hearing when necessary, Section 26 (b) of A.M. No. 0410-11-SC provides that if a temporary protection order issued is due
to expire, the trial court may extend or renew the said order for a
period of thirty (30) days each time until final judgment is rendered. It
may likewise modify the extended or renewed temporary protection
order as may be necessary to meet the needs of the parties. With
the private respondent given ample protection, petitioner could
proceed to litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of the rules on
summary procedure.
In view of all the foregoing, the appellate court correctly dismissed
the petition for prohibition with prayer for injunction and temporary
restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a
superior court, he could be granted an injunctive relief. However,
Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing
of a petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-day TRO
issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was
improper, and it effectively hindered the case from taking its normal
course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment
granting permanent protection shall not stay its enforcement,55 with
more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or
invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the
United States declared, thus:
Federal injunctions against state criminal statutes, either in their

entirety or with respect to their separate and distinct prohibitions, are
not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune
from prosecution, in good faith, for his alleged criminal acts. The
imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until
the trial court hears fully the merits of the case. It bears stressing,
however, that protection orders are granted ex parte so as to protect
women and their children from acts of violence. To issue an
injunction against such orders will defeat the very purpose of the law
against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from
our obligation to determine novel issues, or issues of first impression,
with far-reaching implications. We have, time and again, discharged
our solemn duty as final arbiter of constitutional issues, and with
more reason now, in view of private respondent's plea in her
Comment59 to the instant Petition that we should put the challenge to
the constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and
criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under
the law.60
A perusal of the deliberations of Congress on Senate Bill No.
2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized
measure"62 an amalgamation of two measures, namely, the "AntiDomestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 providing protection to "all family members,

leaving no one in isolation" but at the same time giving special
attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied
protection under the same measure. We quote pertinent portions of
the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr.
President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members of the
household, including children or the husband, they fear that this
would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the
spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this
kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women
who call themselves "WIIR" Women in Intimate Relationship. They
do not want to include men in this domestic violence. But plenty of
men are also being abused by women. I am playing safe so I placed
here members of the family, prescribing penalties therefor and
providing protective measures for victims. This includes the men,
children, live-in, common-law wives, and those related with the
family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion
whether to limit this to women and not to families which was the
issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I
remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during
the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the
measure. Do not get me wrong. However, I believe that there is a
need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women
who have not had the opportunity to file a case against their
spouses, their live-in partners after years, if not decade, of battery
and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses,
then it would not equalize the already difficult situation for women,
Mr. President.
I think that the sponsor, based on our earlier conversations, concurs
with this position. I am sure that the men in this Chamber who love
their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women are,
we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he
is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee

came up with this bill because the family members have been
included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While
women are most likely the intended victims, one reason incidentally
why the measure focuses on women, the fact remains that in some
relatively few cases, men also stand to be victimized and that
children are almost always the helpless victims of violence. I am
worried that there may not be enough protection extended to other
family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the
special needs of abused children. The same law is inadequate.
Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the
same protection to men, fearing that they may use this law to justify
their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our
courts which give credence to evidentiary support and cannot just
arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations
and to protect the family as the basic social institution. Though I
recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights
and dignity of both husband and wife and their immediate family
members, particularly children.
While I prefer to focus mainly on women, I was compelled to include
other family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups
and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other
senators.
Senator Sotto. Yes, with the permission of the two ladies on the
Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized.
babae kaysa sa lalake. At saka iyong mga lalake, puwede na

talagang magulpi iyan. Okey lang iyan. But I cannot agree that we
remove the children from this particular measure.
So, if I may propose an amendment
Senator Sotto. I presume that the effect of the proposed amendment

of Senator Legarda would be removing the "men and children" in this
particular bill and focus specifically on women alone. That will be the
net effect of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito
Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.
The President Pro Tempore. To the amendment.
I am willing to wait whether she is accepting this or not because if

she is going to accept this, I will propose an amendment to the
amendment rather than object to the amendment, Mr. President.
Because of the inadequate existing law on abuse of children, this

particular measure will update that. It will enhance and hopefully
prevent the abuse of children and not only women.
xxxx
SOTTO-LEGARDA AMENDMENTS
Senator Estrada. The amendment is accepted, Mr. President.
Therefore, may I propose an amendment that, yes, we remove the

aspect of the men in the bill but not the children.
Senator Sotto. more than the women, the children are very much
abused. As a matter of fact, it is not limited to minors. The abuse is
not limited to seven, six, 5-year-old children. I have seen 14, 15year-old children being abused by their fathers, even by their
mothers. And it breaks my heart to find out about these things.
The President Pro Tempore. Is there any objection?

Senator Legarda. I agree, Mr. President, with the Minority Leader.
xxxx
Senator Sotto. x x x May I propose an amendment to the
amendment.
The President Pro Tempore. Effectively then, it will be women AND

CHILDREN.
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Before we act on the amendment?

Senator Estrada. It is accepted, Mr. President.
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
The President Pro Tempore. Is there any objection? [Silence] There

being none, the amendment, as amended, is approved.66
Senator Sotto. Mr. President, I am inclined to believe the rationale

used by the distinguished proponent of the amendment. As a matter
of fact, I tend to agree. Kung may maaabuso, mas malamang iyong
It is settled that courts are not concerned with the wisdom, justice,
policy, or expediency of a statute.67 Hence, we dare not venture into
the real motivations and wisdom of the members of Congress in
limiting the protection against violence and abuse under R.A. 9262 to
women and children only. No proper challenge on said grounds may
be entertained in this proceeding. Congress has made its choice and
it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to
seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only
step in when there is a violation of the Constitution. However, none
was sufficiently shown in this case.
the mere fact of inequality in no manner determines the matter of

constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based
on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
R.A. 9262 does not violate the guaranty of equal protection of the
laws.
Measured against the foregoing jurisprudential yardstick, we find that

R.A. 9262 is based on a valid classification as shall hereinafter be
discussed and, as such, did not violate the equal protection clause
by favoring women over men as victims of violence and abuse to
whom the State extends its protection.
Equal protection simply requires that all persons or things similarly

situated should be treated alike, both as to rights conferred and
responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state. It
is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such,
but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact
that women are more likely than men to be victims of violence; and
the widespread gender bias and prejudice against women all make
for real differences justifying the classification under the law. As
Justice McIntyre succinctly states, "the accommodation of
differences ... is the essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National
Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked with
the unequal power relationship between women and men otherwise
known as "gender-based violence". Societal norms and traditions
dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's
companions and supporters, and take on subordinate roles in
society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power.
And VAW is a form of men's expression of controlling women to

retain power.71
The United Nations, which has long recognized VAW as a human
rights issue, passed its Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on December 20, 1993
stating that "violence against women is a manifestation of historically
unequal power relations between men and women, which have led
to domination over and discrimination against women by men and to
the prevention of the full advancement of women, and that violence
against women is one of the crucial social mechanisms by which
women are forced into subordinate positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social
context of gender-based violence and developments in advocacies
to eradicate VAW, in his remarks delivered during the Joint
Launching of R.A. 9262 and its Implementing Rules last October 27,
2004, the pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence
against women. The patriarch of a family was accorded the right to
use force on members of the family under his control. I quote the
early studies:
Traditions subordinating women have a long history rooted in
patriarchy the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave,
concubine or wife, were under the authority of men. In law, they were
treated as property.
The Roman concept of patria potestas allowed the husband to beat,
or even kill, his wife if she endangered his property right over her.
Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of
society.
English feudal law reinforced the tradition of male control over
women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one
was the husband. However, in the late 1500s and through the entire
1600s, English common law began to limit the right of husbands to
chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no
thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights
to chastise wives or inflict corporeal punishment ceased. Even then,
the preservation of the family was given more importance than
preventing violence to women.
The metamorphosis of the law on violence in the United States
followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a
stick, to pull her hair, choke her, spit in her face or kick her about the
floor, or to inflict upon her like indignities, is not now acknowledged
by our law... In person, the wife is entitled to the same protection of
the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became
more organized. The temperance leagues initiated it. These leagues
had a simple focus. They considered the evils of alcoholism as the
root cause of wife abuse. Hence, they demonstrated and picketed
saloons, bars and their husbands' other watering holes. Soon,
however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for
women's right to vote, to own property, and more. Since then, the
feminist movement was on the roll.
The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No less than
the United States Supreme Court, in 1992 case Planned Parenthood
v. Casey, noted:
In an average 12-month period in this country, approximately two

million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The
[American Medical Association] views these figures as "marked
underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude
the very poor, those who do not speak English well, and women who
are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence
agree that the true incidence of partner violence is probably double
the above estimates; or four million severely assaulted women per
year."
Studies on prevalence suggest that from one-fifth to one-third of all
women will be physically assaulted by a partner or ex-partner during
their lifetime... Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many
of these incidents involve sexual assault... In families where wife
beating takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence
is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also
common.
In the International front, the women's struggle for equality was no

less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW). In 1993, the UN General Assembly also adopted
the Declaration on the Elimination of Violence Against Women.
World conferences on the role and rights of women have been
regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The
UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps
of all these women's movements. No less than Section 14, Article II
of our 1987 Constitution mandates the State to recognize the role of
women in nation building and to ensure the fundamental equality
before the law of women and men. Our Senate has ratified the
CEDAW as well as the Convention on the Rights of the Child and its
two protocols. To cap it all, Congress, on March 8, 2004, enacted
Rep. Act No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for
Victims, Prescribing Penalties therefor and for other Purposes."
(Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
Many victims of domestic violence remain with their abusers,

perhaps because they perceive no superior alternative...Many
abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of
income... Returning to one's abuser can be dangerous. Recent
Federal Bureau of Investigation statistics disclose that 8.8 percent of
all homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by their
male partners.
Finally in 1994, the United States Congress enacted the Violence
Against Women Act.
At the time of the presentation of Senate Bill No. 2723, official

statistics on violence against women and children show that
x x x physical injuries had the highest number of cases at 5,058 in
2002 representing 55.63% of total cases reported (9,903). And for
the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of
women in especially difficult circumstances served by the
Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the
total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a
total number of 3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of abuse and

violence and more than 90% of these reported cases were Sexual
committed by the women's intimate partners such as their husbands
Harassment
and live-in partners.73
53
37
38
46
18
54
83
218
924
1,269
2,387
3,599
5,285
9,974
9,02
319
223
199
182
220
208
374
21
62
19
29
30
19
19
25
121
2011
102
93
109
109
99
158
12
17
832
11
16
24
34
152
190
Abduction
/Kidnapping 29
27
19
16
34
23
28
18
25
22
Unjust
Vexation
167
90
201
50
59
59
83
703
183
15
5,374
4,881
5,729
6,905
9,485
15,104
12,94
Recently, the Philippine Commission on Women presentedRA 9262

comparative statistics on violence against women across an eightyear period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since
Threats
its
implementation in 2004,74 thus:
Seduction
Table 1. Annual Comparative Statistics on Violence Against
Women,
2004 - 2011*
Reported
Cases
ape
cestuous
ape
tempted
ape
cts of
asciviousness
hysical
uries
2004
2005
2006
2007
2008
997
927
659
837
811
38
194
46
148
26
185
22
147
28
204
Concubinage
2009
2010
RA 9208
770
1,042
268
Total
580
536
382
358
445
485
23
6,271
745
625
*2011 report covers only from January to August
3,553
2,335
1,892
1,505
1,307
1,498
Philippine National Police Women and Children Protection

2,018 Source:
1,588
Center (WCPC)
On the other hand, no reliable estimates may be obtained on
domestic abuse and violence against men in the Philippines because
incidents thereof are relatively low and, perhaps, because many men
will not even attempt to report the situation. In the United Kingdom,
32% of women who had ever experienced domestic violence did so
four or five (or more) times, compared with 11% of the smaller
number of men who had ever experienced domestic violence; and
women constituted 89% of all those who had experienced 4 or more
incidents of domestic violence.75 Statistics in Canada show that
spousal violence by a woman against a man is less likely to cause
injury than the other way around (18 percent versus 44 percent).
Men, who experience violence from their spouses are much less
likely to live in fear of violence at the hands of their spouses, and
much less likely to experience sexual assault. In fact, many cases of
physical violence by a woman against a spouse are in self-defense
or the result of many years of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse
perpetrated against men in the Philippines, the same cannot render
R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring
drivers of animal-drawn vehicles to pick up, gather and deposit in
receptacles the manure emitted or discharged by their vehicledrawing animals in any public highways, streets, plazas, parks or
alleys, said ordinance was challenged as violative of the guaranty of
equal protection of laws as its application is limited to owners and
drivers of vehicle-drawing animals and not to those animals,
although not utilized, but similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason
that, while there may be non-vehicle-drawing animals that also
traverse the city roads, "but their number must be negligible and their
appearance therein merely occasional, compared to the rig-drawing
ones, as not to constitute a menace to the health of the
community."77 The mere fact that the legislative classification may
result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation
by law produces inequality in some degree, but the law is not thereby
rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and
less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act (VAWA), in defending
the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He
stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or
domestic violence, subjecting them to "double victimization" first at
the hands of the offender and then of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech
for Senate Bill No. 2723 that "(w)henever violence occurs in the
family, the police treat it as a private matter and advise the parties to
settle the conflict themselves. Once the complainant brings the case
to the prosecutor, the latter is hesitant to file the complaint for fear
that it might later be withdrawn. This lack of response or reluctance
to be involved by the police and prosecution reinforces the
escalating, recurring and often serious nature of domestic
violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases
against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge
Venancio J. Amila for Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in reference to the complainant
in a petition for TPO and PPO under R.A. 9262, calling her as "only a
live-in partner" and presenting her as an "opportunist" and a
"mistress" in an "illegitimate relationship." Judge Amila even called
her a "prostitute," and accused her of being motivated by "insatiable
greed" and of absconding with the contested property.81 Such
remarks betrayed Judge Amila's prejudices and lack of gender
sensitivity.
The enactment of R.A. 9262 aims to address the discrimination
brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting

discrimination through specific measures focused on women does
not discriminate against men.82 Petitioner's contention,83 therefore,
that R.A. 9262 is discriminatory and that it is an "anti-male,"
"husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines
bound itself to take all appropriate measures "to modify the social
and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he paradigm
shift changing the character of domestic violence from a private affair
to a public offense will require the development of a distinct mindset
on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose
of R.A. 9262, which is to address violence committed against women
and children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State
values the dignity of women and children and guarantees full respect
for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from
violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against
Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a
party.
In 1979, the U.N. General Assembly adopted the CEDAW, which the
Philippines ratified on August 5, 1981. Subsequently, the Optional
Protocol to the CEDAW was also ratified by the Philippines on

October 6, 2003.86 This Convention mandates that State parties shall
accord to women equality with men before the law87 and shall take
all appropriate measures to eliminate discrimination against women
in all matters relating to marriage and family relations on the basis of
equality of men and women.88 The Philippines likewise ratified the
Convention on the Rights of the Child and its two protocols.89 It is,
thus, bound by said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing
conditions when it was promulgated, but to future conditions as well,
for as long as the safety and security of women and their children are
threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer
violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with whom
the person has or had a sexual or dating relationship, or with whom
he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty. It includes,
but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical
harm;
B. "Sexual violence" refers to an act which is sexual in nature,
committed against a woman or her child. It includes, but is not limited
to:
a) rape, sexual harassment, acts of lasciviousness,

treating a woman or her child as a sex object,
making demeaning and sexually suggestive
remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make
films thereof, forcing the wife and mistress/lover to
live in the conjugal home or sleep together in the
same room with the abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical or
other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or
likely to cause mental or emotional suffering of the victim such as but
not limited to intimidation, harassment, stalking, damage to property,
public ridicule or humiliation, repeated verbal abuse and marital
infidelity. It includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the family to
which the victim belongs, or to witness pornography in any form or to
witness abusive injury to pets or to unlawful or unwanted deprivation
of the right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make a
woman financially dependent which includes, but is not limited to the
following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of
the Family Code;
2. deprivation or threat of deprivation of financial

resources and the right to the use and enjoyment of
the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties or
solely controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted
provision are attributable to research that has exposed the
dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence
Against Women.90 Hence, the argument advanced by petitioner that
the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and
ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate
contrast between the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited, and need not
guess at its meaning nor differ in its application.91 Yet, petitioner
insists92 that phrases like "depriving or threatening to deprive the
woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing
mental or emotional anguish" are so vague that they make every
quarrel a case of spousal abuse. However, we have stressed that
the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will
not be held invalid merely because it might have been more explicit
in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles

out the husband or father as the culprit. As defined above, VAWC
may likewise be committed "against a woman with whom the person
has or had a sexual or dating relationship." Clearly, the use of the
gender-neutral word "person" who has or had a sexual or dating
relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be
related or connected to the victim by marriage, former marriage, or a
sexual or dating relationship, it does not preclude the application of
the principle of conspiracy under the Revised Penal Code (RPC).
Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of
Sharica Mari L. Go-Tan, the victim, were held to be proper
respondents in the case filed by the latter upon the allegation that
they and their son (Go-Tan's husband) had community of design and
purpose in tormenting her by giving her insufficient financial support;
harassing and pressuring her to be ejected from the family home;
and in repeatedly abusing her verbally, emotionally, mentally and
physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the
issuance of POs, of all protections afforded by the due process
clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is
stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an
inkling of what happened."95
A protection order is an order issued to prevent further acts of
violence against women and their children, their family or household
members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability to
regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure that
the victim or offended party is afforded all the remedies necessary to
curtail access by a perpetrator to the victim. This serves to safeguard

the victim from greater risk of violence; to accord the victim and any
designated family or household member safety in the family
residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables
the court to award temporary custody of minor children to protect the
children from violence, to prevent their abduction by the perpetrator
and to ensure their financial support."97
The rules require that petitions for protection order be in writing,
signed and verified by the petitioner98 thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be
prevented,"99 the court is authorized to issue ex parte a TPO after
raffle but before notice and hearing when the life, limb or property of
the victim is in jeopardy and there is reasonable ground to believe
that the order is necessary to protect the victim from the immediate
and imminent danger of VAWC or to prevent such violence, which is
about to recur.100
There need not be any fear that the judge may have no rational basis
to issue an ex parte order. The victim is required not only to verify
the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as
violative of the right to due process. Just like a writ of preliminary
attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the
defendant to abscond or dispose of his property,102 in the same way,
the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death,
if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities
of protecting vital public interests,103 among which is protection of
women and children from violence and threats to their personal
safety and security.
It should be pointed out that when the TPO is issued ex parte, the
court shall likewise order that notice be immediately given to the
respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of
the petition and TPO be served immediately on the respondent by
the court sheriffs. The TPOs are initially effective for thirty (30) days
from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order
the immediate issuance and service of the notice upon the
respondent requiring him to file an opposition to the petition within
five (5) days from service. The date of the preliminary conference
and hearing on the merits shall likewise be indicated on the notice.105
The opposition to the petition which the respondent himself shall
verify, must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order should
not be issued.106
It is clear from the foregoing rules that the respondent of a petition
for protection order should be apprised of the charges imputed to
him and afforded an opportunity to present his side. Thus, the fear of
petitioner of being "stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be
found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. "To be heard"
does not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an
Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO
that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the
TPO to allow him visitation rights to his children. Still, the trial court in
its Order dated September 26, 2006, gave him five days (5) within
which to show cause why the TPO should not be renewed or

extended. Yet, he chose not to file the required comment arguing
that it would just be an "exercise in futility," conveniently forgetting
that the renewal of the questioned TPO was only for a limited period
(30 days) each time, and that he could prevent the continued
renewal of said order if he can show sufficient cause therefor. Having
failed to do so, petitioner may not now be heard to complain that he
was denied due process of law.
Petitioner next laments that the removal and exclusion of the
respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a "blank check"
issued to the wife to claim any property as her conjugal home. 108
The wording of the pertinent rule, however, does not by any stretch
of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection
order shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of
the offended party, regardless of ownership of the residence, either
temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent
must remove personal effects from the residence, the court shall
direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things
and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily for
the purpose of protecting the latter. Such removal and exclusion may
be permanent only where no property rights are violated. How then
can the private respondent just claim any property and appropriate it
for herself, as petitioner seems to suggest?
The non-referral of a VAWC case

to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments,
instead of encouraging mediation and counseling, the law has done
violence to the avowed policy of the State to "protect and strengthen
the family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not
refer the case or any issue thereof to a mediator. The reason behind
this provision is well-explained by the Commentary on Section 311 of
the Model Code on Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to
mediation in a proceeding for an order for protection. Mediation is a
process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand.
Violence, however, is not a subject for compromise. A process which
involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because the
petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis
supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of
judicial power which, under the Constitution, is placed upon the
"Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay
officials to issue protection orders.111 The pertinent provision reads,
as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and
How. Barangay Protection Orders (BPOs) refer to the protection
order issued by the Punong Barangay ordering the perpetrator to
desist from committing acts under Section 5 (a) and (b) of this
Act.1wphi1 A Punong Barangay who receives applications for a

BPO shall issue the protection order to the applicant on the date of
filing after ex parte determination of the basis of the application. If the
Punong Barangay is unavailable to act on the application for a BPO,
the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order
must be accompanied by an attestation by the Barangay Kagawad
that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its
personal service.
The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.112 On
the other hand, executive power "is generally defined as the power to
enforce and administer the laws. It is the power of carrying the laws
into practical operation and enforcing their due observance." 113
As clearly delimited by the aforequoted provision, the BPO issued by
the Punong Barangay or, in his unavailability, by any available
Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening
to cause the woman or her child physical harm. Such function of the
Punong Barangay is, thus, purely executive in nature, in pursuance
of his duty under the Local Government Code to "enforce all laws
and ordinances," and to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law
to inquire into the existence of certain facts and to apply the law
thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an
exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a
preliminary inquiry or proceeding "whether there is reasonable
ground to believe that an offense has been committed and the
accused is probably guilty thereof," the Punong Barangay must
determine reasonable ground to believe that an imminent danger of
violence against the woman and her children exists or is about to
recur that would necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with the
issuance of a BPO.
We need not even belabor the issue raised by petitioner that since
barangay officials and other law enforcement agencies are required
to extend assistance to victims of violence and abuse, it would be
very unlikely that they would remain objective and impartial, and that
the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent
with their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an
unequivocal breach of, or a clear conflict with the Constitution, not
merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other
words, the grounds for nullity must be beyond reasonable
doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a
declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v.
Sandiganbayan, 117 courts must assume that the legislature is ever
conscious of the borders and edges of its plenary powers, and
passed laws with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of the majority.
We reiterate here Justice Puno's observation that "the history of the

women's movement against domestic violence shows that one of its
most difficult struggles was the fight against the violence of law itself.
If we keep that in mind, law will not again be a hindrance to the
struggle of women for equality but will be its
fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it
should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby
DENIED for lack of merit.
SO ORDERED.
United States Supreme Court

BRADWELL v. STATE OF ILLINOIS, (1872)
Argued: Decided: December 1, 1872
IN error to the Supreme Court of the State of Illinois.
Mrs. Myra Bradwell, residing in the State of Illinois, made application
to the judges of the Supreme Court of that State for a license to
practice law. She accompanied her petition with the usual certificate
from an inferior court of her good character, and that on due
examination she had been found to possess the requisite
qualifications. Pending this application she also filed an affidavit, to
the effect 'that she was born in the State of Vermont; that she was
(had been) a citizen of that State; that she is now a citizen of the
United States, and has been for many years past a resident of the
city of Chicago, in the State ofIllinois.' And with this affidavit she also
filed a paper asserting that, under the foregoing facts, she was
entitled to the license prayed for by virtue of the second section of
the fourth article of the Constitution of the United States, and of the
fourteenth article of amendment of that instrument. [83 U.S. 130,
131] The statute of Illinois on the subject of admissions to the bar,
enacts that no person shall be permitted to practice as an attorney or
counsellor-at-law, or to commence, conduct, or defend any action,
suit, or complaint, in which he is not a party concerned, in any court
of record within the State, either by using or subscribing his own
name or the name of any other person, without having previously
obtained a license for that purpose from some two of the justices of
the Supreme Court, which license shall constitute the person
receiving the same an attorney and counsellor- at-law, and shall
authorize him to appear in all the courts of record within the State,
and there to practice as an attorney and counsellor-at- law,
according to the laws and customs thereof.
On Mrs. Bradwell's application first coming before the court, the
license was refused, and it was stated as a sufficient reason that
under the decisions of the Supreme Court of Illinois, the applicant-'as
a married woman would be bound neither by her express contracts
nor by those implied contracts which it is the policy of the law to
create between attorney and client.' After the announcement of this
decision, Mrs. Bradwell, admitting that she was a married womanthough she expressed her belief that such fact did not appear in the
record-filed a printed argument in which her right to admission,
notwithstanding that fact, was earnestly and ably maintained. The

court thereupon gave an opinion in writing. Extracts are here given:
'Our statute provides that no person shall be permitted to practice as
an attorney or counsellor at law without having previously obtained a
license for that purpose from two of the justices of the Supreme
Court. By the second section of the act, it is provided that no person
shall be entitled to receive a license until he shall have obtained a
certificate from the court of some county of his good moral character,
and this is the only express limitation upon the exercise of the power
thus intrusted to this court. In all other respects it is left to our
discretion to establish the rules by which admission to this office
shall be determined. But this discretion is not an arbitrary one, and
must be held subject to at least two limitations. One is, that the [83
U.S. 130, 132] court should establish such terms of admission as
will promote the proper administration of justice; the second, that it
should not admit any persons or class of persons who are not
intended by the legislature to be admitted, even though their
exclusion is not expressly required by the statute.
'The substance of the last limitation is simply that this important trust
reposed in us should be exercised in conformity with the designs of
the power creating it.
'Whether, in the existing social relations between men and women, it
would promote the proper administration of justice, and the general
well- being of society, to permit women to engage in the trial of cases
at the bar, is a question opening a wide field of discussion, upon
which it is not necessary for us to enter. It is sufficient to say that, in
our opinion, the other implied limitation upon our power, to which we
have above referred, must operate to prevent our admitting women
to the office of attorney at law. If we were to admit them, we should
be exercising the authority conferred upon us in a manner which, we
are fully satisfied, was never contemplated by the legislature.
'It is to be remembered that at the time this statute was enacted we
had, by express provision, adopted the common law of England,
and, with three exceptions, the statutes of that country passed prior
to the fourth year of James the First, so far as they were applicable
to our condition.
'It is to be also remembered that female attorneys at law were

unknown in England, and a proposition that a woman should enter
the courts of Westminster Hall in that capacity, or as a barrister,
would have created hardly less astonishment than one that she
should ascend the bench of bishops, or be elected to a seat in the
House of Commons.
'It is to be further remembered, that when our act was passed, that
school of reform which claims for women participation in the making
and administering of the laws had not then arisen, or, if here and
there a writer had advanced such theories, they were regarded
rather as abstract speculations than as an actual basis for action.
'That God designed the sexes to occupy different spheres of action,
and that it belonged to men to make, apply, and execute the laws,
was regarded as an almost axiomatic truth.
'In view of these facts, we are certainly warranted in saying [83 U.S.
130, 133] that when the legislature gave to this court the power of
granting licenses to practice law, it was with not the slightest
expectation that this privilege would be extended to women.'
The court having thus denied the application, Mrs. Brad-well brought
the case here as within the twenty-fifth section of the Judiciary Act,
or the recent act of February 5th, 1867, amendatory thereto; the
exact language of which may be seen in the Appendix.
Mr. Matthew Hale Carpenter, for the plaintiff in error:
The question does not involve the right of a female to vote. It
presents a narrow matter:
Can a female citizen, duly qualified in respect of age, character, and
learning, claim, under the fourteenth amendment,1 the privilege of
earning a livelihood by practicing at the bar of a judicial court?
The original Constitution said:
'The citizens of each State shall be entitled to all privileges and
immunities of citizens in the several States.'
Under this provision each State could determine for itself what the
privileges and immunities of its citizens should be. A citizen
emigrating from one State to another carried with him, not the
privileges and immunities he enjoyed in his native State, but was
entitled, in the State of his adoption, to such privileges and

immunities as were enjoyed by the class of citizens to which he
belonged by the laws of such adopted State.
But the fourteenth amendment executes itself in every State of the
Union. Whatever are the privileges and immunities of a citizen in the
State of New York, such citizen, emigrating, carries them with him
into any other State of the Union. It utters the will of the United
States in every State, and silences every State constitution, usage,
or law which conflicts with it. If to be admitted to the bar, on attaining
the age and learning required by law, be one of the [83 U.S. 130,
134] privileges of a white citizen in the State of New York, it is
equally the privilege of a colored citizen in that State; and if in that
State, then in any State. If no State may 'make or enforce any law' to
abridge the privileges of a citizen, it must follow that the privileges of
all citizens are the same.
Does admission to the bar belong to that class of privileges which a
State may not abridge, or that class of political rights as to which a
State may discriminate between its citizens?
It is evident that there are certain 'privileges and immunities' which
belong to a citizen of the United States as such; otherwise it would
be nonsense for the fourteenth amendment to prohibit a State from
abridging them. I concede that the right to vote is not one of those
privileges. And the question recurs whether admission to the bar, the
proper qualification being possessed, is one of the privileges which a
State may not deny.
In Cummings v. Missouri,2 this court say:
'The theory upon which our political institutions rest is, that all men
have certain inalienable rights-that among these are life, liberty, and
the pursuit of happiness; and that in the pursuit of happiness all
avocations, all honors, all positions, are alike open to every one, and
that in the protection of these rights all are equal before the law. Any
deprivation or suspension of any of these rights for past conduct is
punishment, and can be in no otherwise defined.'
In Ex parte Garland,3 this court say:
'The profession of an attorney and counsellor is not like an office
created by an act of Congress, which depends for its continuance, its
powers, and its emoluments upon the will of its creator, and the
possession of which may be burdened with any conditions not
prohibited by the Constitution. Attorneys and counsellors are not

officers of the United States; they are not elected or appointed in the
manner prescribed by the Constitution for the election and
appointment of such officers. They are officers of the court, admitted
as such by its order, upon [83 U.S. 130, 135] evidence of their
possessing sufficient legal learning and fair private character. . . .
The order of admission is the judgment of the court, that the parties
possess the requisite qualifications as attorneys and counsellors,
and are entitled to appear as such and conduct causes therein. From
its entry the parties become officers of the court, and are responsible
to it for professional misconduct. They hold their office during good
behavior, and can only be deprived of it for misconduct, ascertained
and declared by the judgment of the court, after opportunity to be
heard has been offered.'4
It is now settled by numerous cases,5 that the courts in admitting
attorneys to, and in expelling them from, the bar, act judicially, and
that such proceedings are subject to review on writ of error or
appeal, as the case may be.
From these cases the conclusion is irresistible, that the profession of
the law, like the clerical profession and that of medicine, is an
avocation open to every citizen of the United States. And while the
legislature may prescribe qualifications for entering upon this pursuit,
they cannot, under the guise of fixing qualifications, exclude a class
of citizens from admission to the bar. The legislature may say at
what age candidates shall be admitted; may elevate or depress the
standard of learning required. But a qualification, to which a whole
class of citizens never can attain, is not a regulation of admission to
the bar, but is, as to such citizens, a prohibition. For instance, a State
legislature could not, in enumerating the qualifications, require the
candidate to be a white citizen. This would be the exclusion of all
colored citizens, without regard to age, character, or learning. Yet no
sound mind can draw a distinction between such an act and a
custom, usage, or law of a State, which denies this privilege to all
female citizens, without regard to age, character, or learning. If the
legislature may, under pretence of fixing qualifications, declare that
no [83 U.S. 130, 136] female citizen shall be permitted to practice
law, it may as well declare that no colored citizen shall practice law;
for the only provision in the Constitution of the United States which
secures to colored male citizens the privilege of admission to the bar,

or the pursuit of the other ordinary avocations of life, is the provision
that 'no State shall make or enforce any law which shall abridge the
privileges or immunities of a citizen.' And if this provision does
protect the colored citizen, then it protects every citizen, black or
white, male or female.
Now, Mrs. Bradwell is a citizen of the United States, and of the State
of Illinois, residing therein; she has been judicially ascertained to be
of full age, and to possess the requisite character and learning.
Still admission to the bar was denied her, not upon the ground that
she was not a citizen; not for want of age or qualifications; not
because the profession of the law is not one of those avocations
which are open to every American citizen as matter of right, upon
complying with the reasonable regulations prescribed by the
legislature; but first upon the ground that inconvenience would result
from permitting her to enjoy her legal rights in this, to wit, that her
clients might have difficulty in enforcing the contracts they might
make with her, as their attorney, because of her being a married
woman; and, finally, on the ground of her sex, merely.
Now, the argument ab inconvenienti, which might have been urged
with whatever force belongs to it, against adopting the fourteenth
amendment in the full scope of its language, is futile to resist its full
and proper operation, now that it has been adopted. But that
objection is really without force; for Mrs. Bradwell, admitted to the
bar, becomes an officer of the court, subject to its summary
jurisdiction. Any malpractice or unprofessional conduct towards her
client would be punishable by fine, imprisonment, or expulsion from
the bar, or by all three. Her clients would, therefore, not be
compelled to resort to actions at law against her. The objection
arising from her coverture was in fact [83 U.S. 130,
137] abandoned, in its more full consideration of the case, by the
court itself; and the refusal put upon the fact that the statute of
Illinois, interpreted by the light of early days, could not have
contemplated the admission of any woman, though unmarried, to the
bar. But whatever the statute of Illinois meant, I maintain that the
fourteenth amendment opens to every citizen of the United States,
male or female, black or white, married or single, the honorable
professions as well as the servile employments of life; and that no
citizen can be excluded from any one of them. Intelligence, integrity,
and honor are the only qualifications that can be prescribed as

conditions precedent to an entry upon any honorable pursuit or
profitable avocation, and all the privileges and immunities which I
vindicate to a colored citizen, I vindicate to our mothers, our sisters,
and our daughters. The inequalities of sex will undoubtedly have
their influence, and be considered by every client desiring to employ
counsel.
There may be cases in which a client's rights can only be rescued by
an exercise of the rough qualities possessed by men. There are
many causes in which the silver voice of woman would accomplish
more than the severity and sternness of man could achieve. Of a bar
composed of men and women of equal integrity and learning, women
might be more or less frequently retained, as the taste or judgment of
clients might dictate. But the broad shield of the Constitution is over
them all, and protects each in that measure of success which his or
her individual merits may secure.
No opposing counsel.
Mr. Justice MILLER delivered the opinion of the court.
The record in this case is not very perfect, but it may be fairly taken
that the plaintiff asserted her right to a license on the grounds,
among others, that she was a citizen of the United States, and that
having been a citizen of Vermont at one time, she was, in the State
of Illinois, entitled to any right granted to citizens of the latter State.
The court having overruled these claims of right founded on the
clauses of the Federal Constitution before referred [83 U.S. 130,
138] to, those propositions may be considered as properly before
this court.
As regards the provision of the Constitution that citizens of each
State shall be entitled to all the privileges and immunities of citizens
in the several States, the plaintiff in her affidavit has stated very
clearly a case to which it is inapplicable.
The protection designed by that clause, as has been repeatedly held,
has no application to a citizen of the State whose laws are
complained of. If the plaintiff was a citizen of the State of Illinois, that
provision of the Constitution gave her no protection against its courts
or its legislation.
The plaintiff seems to have seen this difficulty, and attempts to avoid
it by stating that she was born in Vermont.
While she remained in Vermont that circumstance made her a citizen

of that State. But she states, at the same time, that she is a citizen of
the United States, and that she is now, and has been for many years
past, a resident of Chicago, in the State of Illinois.
The fourteenth amendment declares that citizens of the United
States are citizens of the State within which they reside; therefore
the plaintiff was, at the time of making her application, a citizen of the
United States and a citizen of the State of Illinois.
We do not here mean to say that there may not be a temporary
residence in one State, with intent to return to another, which will not
create citizenship in the former. But the plaintiff states nothing to take
her case out of the definition of citizenship of a State as defined by
the first section of the fourteenth amendment.
In regard to that amendment counsel for the plaintiff in this court truly
says that there are certain privileges and immunities which belong to
a citizen of the United States as such; otherwise it would be
nonsense for the fourteenth amendment to prohibit a State from
abridging them, and he proceeds to argue that admission to the bar
of a State of a person who possesses the requisite learning and
character is one of those which a State may not deny. [83 U.S. 130,
139] In this latter proposition we are not able to concur with
counsel. We agree with him that there are privileges and immunities
belonging to citizens of the United States, in that relation and
character, and that it is these and these alone which a State is
forbidden to abridge. But the right to admission to practice in the
courts of a State is not one of them. This right in no sense depends
on citizenship of the United States. It has not, as far as we know,
ever been made in any State, or in any case, to depend on
citizenship at all. Certainly many prominent and distinguished
lawyers have been admitted to practice, both in the State and
Federal courts, who were not citizens of the United States or of any
State. But, on whatever basis this right may be placed, so far as it
can have any relation to citizenship at all, it would seem that, as to
the courts of a State, it would relate to citizenship of the State, and
as to Federal courts, it would relate to citizenship of the United
States.
The opinion just delivered in the Slaughter-House Cases6 renders
elaborate argument in the present case unnecessary; for, unless we
are wholly and radically mistaken in the principles on which those
cases are decided, the right to control and regulate the granting of
license to practice law in the courts of a State is one of those powers
which are not transferred for its protection to the Federal
government, and its exercise is in no manner governed or controlled
by citizenship of the United States in the party seeking such license.
It is unnecessary to repeat the argument on which the judgment in
those cases is founded. It is sufficient to say they are conclusive of
the present case.
JUDGMENT AFFIRMED.
Mr. Justice BRADLEY:
I concur in the judgment of the court in this case, by which the
judgment of the Supreme Court of Illinois is affirmed, but not for the
reasons specified in the opinion just read. [83 U.S. 130, 140] The
claim of the plaintiff, who is a married woman, to be admitted to
practice as an attorney and counsellor-at-law, is based upon the
supposed right of every person, man or woman, to engage in any
lawful employment for a livelihood. The Supreme Court of Illinois
denied the application on the ground that, by the common law, which
is the basis of the laws of Illinois, only men were admitted to the bar,
and the legislature had not made any change in this respect, but had
simply provided that no person should be admitted to practice as
attorney or counsellor without having previously obtained a license
for that purpose from two justices of the Supreme Court, and that no
person should receive a license without first obtaining a certificate
from the court of some county of his good moral character. In other
respects it was left to the discretion of the court to establish the rules
by which admission to the profession should be determined. The
court, however, regarded itself as bound by at least two limitations.
One was that it should establish such terms of admission as would
promote the proper administration of justice, and the other that it
should not admit any persons, or class of persons, not intended by
the legislature to be admitted, even though not expressly excluded
by statute. In view of this latter limitation the court felt compelled to
deny the application of females to be admitted as members of the
bar. Being contrary to the rules of the common law and the usages of
Westminster Hall from time immemorial, it could not be supposed
that the legislature had intended to adopt any different rule.
The claim that, under the fourteenth amendment of the Constitution,
which declares that no State shall make or enforce any law which
shall abridge the privileges and immunities of citizens of the United

States, the statute law of Illinois, or the common law prevailing in that
State, can no longer be set up as a barrier against the right of
females to pursue any lawful employment for a livelihood (the
practice of law included), assumes that it is one of the privileges and
immunities of women as citizens to engage in any and every
profession, occupation, or employment in civil life. [83 U.S. 130,
141] It certainly cannot be affirmed, as an historical fact, that this
has ever been established as one of the fundamental privileges and
immunities of the sex. On the contrary, the civil law, as well as nature
herself, has always recognized a wide difference in the respective
spheres and destinies of man and woman. Man is, or should be,
woman's protector and defender. The natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it for many
of the occupations of civil life. The constitution of the family
organization, which is founded in the divine ordinance, as well as in
the nature of things, indicates the domestic sphere as that which
properly belongs to the domain and functions of womanhood. The
harmony, not to say identity, of interest and views which belong, or
should belong, to the family institution is repugnant to the idea of a
woman adopting a distinct and independent career from that of her
husband. So firmly fixed was this sentiment in the founders of the
common law that it became a maxim of that system of jurisprudence
that a woman had no legal existence separate from her husband,
who was regarded as her head and representative in the social state;
and, notwithstanding some recent modifications of this civil status,
many of the special rules of law flowing from and dependent upon
this cardinal principle still exist in full force in most States. One of
these is, that a married woman is incapable, without her husband's
consent, of making contracts which shall be binding on her or him.
This very incapacity was one circumstance which the Supreme Court
of Illinois deemed important in rendering a married woman
incompetent fully to perform the duties and trusts that belong to the
office of an attorney and counsellor.
It is true that many women are unmarried and not affected by any of
the duties, complications, and incapacities arising out of the married
state, but these are exceptions to the general rule. The paramount
destiny and mission of woman are to fulfil the noble and benign
offices of wife and mother. This is the law of the Creator. And the
rules of civil society [83 U.S. 130, 142] must be adapted to the
general constitution of things, and cannot be based upon exceptional
cases.
The humane movements of modern society, which have for their
object the multiplication of avenues for woman's advancement, and
of occupations adapted to her condition and sex, have my heartiest
concurrence. But I am not prepared to say that it is one of her
fundamental rights and privileges to be admitted into every office and
position, including those which require highly special qualifications
and demanding special responsibilities. In the nature of things it is
not every citizen of every age, sex, and condition that is qualified for
every calling and position. It is the prerogative of the legislator to
prescribe regulations founded on nature, reason, and experience for
the due admission of qualified persons to professions and callings
demanding special skill and confidence. This fairly belongs to the
police power of the State; and, in my opinion, in view of the peculiar
characteristics, destiny, and mission of woman, it is within the
province of the legislature to ordain what offices, positions, and
callings shall be filled and discharged by men, and shall receive the
benefit of those energies and responsibilities, and that decision and
firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of
are not obnoxious to the charge of abridging any of the privileges
and immunities of citizens of the United States.
Mr. Justice SWAYNE and Mr. Justice FIELD concurred in the
foregoing opinion of Mr. Justice BRADLEY.
The CHIEF JUSTICE dissented from the judgment of the court, and
from all the opinions.
Michael M. v. Superior Court of Sonoma County, 101 S. Ct. 1200

(1981). The United States Supreme Court recently considered the
constitutionality of a gender-based statutory rape law. In Michael M.
v. Superior Court of Sonoma County,I the Court held, in a split
decision,2 that California's statutory rape law3 does not violate the
equal protection clause of the fourteenth amendment 4 even though
it subjects only males to criminal liability. In deciding Michael M., the
Supreme Court participated in a denial of fourteenth amendment
rights and opened the way for future circumvention of the
constitutional guarantee of equal protection of the laws. This Note
critically examines the opinions filed by the Supreme Court in
Michael M. and suggests an alternative resolution for the issue of
whether gender-based statutory rape laws are consistent with the
demands of the equal protection clause. I. FACTS AND CASE
HISTORY On the evening of June 3, 1978, Sharon, a 161/2-year-old
female, and her 21-year-old sister purchased a half pint of whiskey
and began drinking. At approximately midnight, Sharon and her
sister were wait- 1 101 S. Ct. 1200 (1981). 2 Five justices concluded
that the statute did not violate the Equal Protection Clause of the
fourteenth amendment. Justice Rehnquist announced the judgment
of the Court in an opinion in which Chief Justice Burger and Justices
Stewart and Powell joined. Justice Stewart also filed a concurring
opinion. Justice Blackmun filed an opinion concurring in the
judgment. Justice Brennan wrote a dissent which was joined by
Justices White and Marshall. A separate dissenting opinion was filed
by Justice Stevens. 3 CAL. PENAL CODE 261.5 (West Supp.
1981) states that "[u]nlawful sexual intercourse is an act of sexual
intercourse accomplished with a female not the wife of the
perpetrator, where the female is under the age of 18 years." 4 U.S.
CONST. amend. XIV, 1: "No state shall . . . deny to any person
within its jurisdiction the equal protection of the laws." 1374
STATUTORY RAPE ing at a bus stop when they were approached
by Michael, age 17 , and two other male youths who offered the girls
some wine. The five youths drank together and walked to nearby
railroad tracks.5 At the railroad tracks, Sharon and Michael moved
away from the others, went into the bushes, laid down together, and
kissed and hugged. After about thirty minutes, Sharon's sister
approached them and asked Sharon if she was ready to go home.
Sharon declined the invitation to leave, so her sister left with one of
the other boys. At this time, Sharon began kissing the third boy until
he left by himself a few minutes later. After the others had departed,
Sharon and Michael walked to a park.6 At the park, Sharon and
Michael lay down on a bench and resumed kissing and hugging.
Michael told Sharon to remove her pants, but she refused. After
Michael struck her with his fist, Sharon then said to herself, "[f]orget
it," and offered no further resistance to Michael's advances. He
removed her pants, and the couple had intercourse. 7 Michael was
charged by information with a felony violation of section 261.5 of the
California Penal Code which makes an act of sexual intercourse
unlawful if accomplished with a female under the age of eighteen. 8
He sought to set aside the information on both federal and state
constitutional grounds, claiming that the California statute unlawfully
discriminated against males. Both the trial court and the California
Court of Appeals rejected his arguments. 9 Michael then sought a
writ of prohibition from the California Supreme Court to compel the
trial court "to dismiss the information on the ground that section
261.5 violates the equal protection clauses of both the United States
and California Constitutions, because only females are protected by
the statute and only males may be prosecuted under it."1 The
Supreme Court of California denied Michael's petition for a writ of
prohibition in a 4 to 3 decision. I' Justice Richardson, writing for the
majority, acknowledged that the statute discriminates on the basis of
sex.' 2 He then applied a standard of strict scrutiny to the statute,
purportedly requiring the state to demonstrate both a compelling
interest to 5 Michael M. v. Superior Court of Sonoma County, 25 Cal.
3d 608,615-16,601 P.2d 572, 577, 159 Cal. Rptr. 340, 345 (1979)
(Mosk, J., dissenting). 6 Id. 7 Id. See also 101 S. Ct. at 1212-13
(Blackmun, J., concurring) (partial text of Sharon's preliminary
hearing tdstimony). 8 Michael M. v. Superior Court of Sonoma
County, 25 Cal. 3d at 610, 601 P. 2d at 574, 159 Cal. Rptr. at 342.
See note 3 .upra. 9 See Michael M. v. Superior Court of Sonoma
County, 101 S. Ct. at 1203. 10 Michael M. v. Superior Court of
Sonoma County, 25 Cal. 3d at 610, 601 P. 2d at 574, 159 Cal. Rptr.
at 342. 11 Michael M. v. Superior Court of Sonoma County, 25 Cal.
3d 608, 601 P.2d 572, 159 Cal. Rptr. 340. 12 Id. at 611, 601 P.2d at
574, 159 Cal. Rptr. at 342. 1981] 1375 1376 SUPREME COURT
REVIEW [Vol. 72 justify the law and the necessity of the genderbased classification to achieve the statute's purpose.13 According to
the majority, the state established a compelling interest in preventing
pregnancies among unwed teenage girls. 14 Justice Richardson
stated that the "[1]egislature is well within its power in imposing

criminal sanctions against males, alone, because they are the on4,
persons who may physiologically cause the result which the law
properly seeks to avoid."1 5 In challenging the statute, Michael
argued that the statute is (1) overbroad because it includes those
who practice birth control or are incapable of procreation and (2)
underinclusive because it does not hold females equally culpable
with males.16 The majority of the California Court rejected both of
these contentions as well as Michael's assertion that the statute
reflects negatively upon the capacity of minor females to make
intelligent decisions concerning sexual relations. Accordingly, the
majority concluded that the constitutional mandate of equal
protection of the laws does not require the adoption of a genderneutral statutory 13 Id. at 610-11, 601 P.2d at 574, 159 Cal. Rptr. at
342 (citing Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1, 485 P.2d 529, 95
Cal. Rptr. 329 (1971)). See Comment, The Constitutionality oftalutog
Rape Laws, 27 U.C.L.A. L. REv. 757, 784-87 (1980) for the view that
the California Supreme Court failed to apply the standard of strict
scrutiny properly in Michael M. 14 Michael M. v. Superior Court of
Sonoma County, 25 Cal. 3d at 612, 601 P.2d at 575, 159 Cal. Rptr.
at 343. 15 Id. at 612, 601 P.2d at 575, 159 Cal. Rptr. at 343
(emphasis in original). 16 Statutes challenged under the equal
protection clause of the fourteenth amendment are subject to a
three-step inquiry. The first step is to identify the purpose of the
challenged law. The second step is to examine the relationship
between the statutory classification and the statutory purpose. The
third step is to determine whether the statutory classification is
underinclusive or overinclusive, or both, in relation to the
achievement of the statutory purpose. P. POLYVIOu, THE EQUAL
PROTECTION OF THE LAWS 57 (1980). In discussing this
approach to equal protection, Polyviou notes that courts often do not
distinguish between the second and third steps. Courts generally
incorporate these two steps into a single inquiry of whether the
statutory classification "can be justified in terms of the achievement
of the State's permissible objectives." Id. Yet, Polyviou cites Rinaldi
v. Yeager, 384 U.S. 305 (1966), in making a distinction between the
requirement of "rationality in the nature of the class singled out" and
the "requirement of an adequate relationship between trait and
objective." P. PoLYvIou, supra at 57. He concluded that the
"[c]omposition as well as nexus must therefore be rational." Id. If a
court finds a statute to be overbroad because it includes individuals

in its classification which are not "tainted with the mischief at which
the law apparently aims," the court will require the state to justify the
overinclusion. Id. at 78. Overinclusion will be allowed in only
exceptional cases such as emergency situations where there is a
threat to national security. Id. at 78-80 (citing Korematsu v. United
States, 323 U.S. 214 (1944)). An underinclusive statute is one which
leaves out individuals who are similar, with regard to the purpose of
the statute, to those individuals who are included within the statutory
classification. Courts will generally not tolerate underinclusiveness
unless the state can show that differences actually do exist between
the statutory class and those left out or that administrative factors
justify the underinclusion. P. POLYVIOU, supra at 71-78.
STATUTORY RAPE rape law.17 Justice Mosk of the California
Supreme Court filed a vigorous dissent. Pointing out that the
Attorney General and the majority both failed to offer any support for
their contention that the purpose of the statute is the prevention of
teenage pregnancies, Justice Mosk offered his own analysis of the
history behind the California statutory rape law.18 He found that the
statutory rape laws were originally meant "to prohibit sexual
intercourse with the underage female because she was believed to
be 'too young to understand the nature and quality of her act' .. . and
hence incapable of intelligently consenting thereto."19 Moreover, he
found no support in either the legislative history or earlier court
interpretations for the argument that prevention of teenage
pregnancy was the purpose of the statute. Justice Mosk concluded
that the true purpose behind the statute was the protection of the
virtue of underage females who are presumed to be incapable of
giving informed consent to sexual intercourse. 20 He was troubled to
find that the statute reflects and perpetuates the sexual stereotypes
of underage females being incapable of making informed decisions
regarding sexual relations and being less responsible for their
actions than their male counterparts. 21 Justice Mosk expressed
additional disagreement with the majority by finding that the statute
would still be unconstitutional even if pregnancy prevention was the
actual purpose of the statute. He reasoned that, since both the male
and female are equally responsible if a pregnancy results, they
should be treated equally. The state has no compelling reason for
excusing only the female from criminal responsibility. Hence, he
determined that the law was impermissibly underinclusive. 22 The
Supreme Court of the United States granted certiorari to consider the

constitutionality of California's statutory rape law under the equal
protection clause of the fourteenth amendment.23 II. SUPREME
COURT DECISION There was no majority opinion for the Court.
Justice Rehnquist announced the judgment of the Court, and Chief
Justice Burger and Justices Stewart and Powell joined in his opinion.
Justice Stewart also 17 Michael M. v. Superior Court of Sonoma
County, 25 Cal. 3d at 614, 601 P.2d at 576, 159 Cal. Rptr. at 344. 18
Id. at 617-21, 601 P.2d at 578-80, 159 Cal. Rptr. at 346-48 (Mosk, J.,
dissenting). 19 Id. at 617, 601 P.2d at 578, 159 Cal. Rptr. at 346
(citing Myers, Reasonable Mistake ofAge: A Needed Defense to
Statutogi Rape, 64 MICH. L. REv. 105, 110 (1965)). 20 Id. at 618,
601 P.2d at 578-79, 159 Cal. Rptr. at 346-47. 21 Id. at 624-25, 601
P.2d at 582-83, 159 Cal. Rptr. at 350-51 (Mosk, J., dissenting). 22 Id.
at 621, 601 P.2d at 580, 150 Cal. Rptr. at 348 (Mosk, J., dissenting).
See also note 16 supra on the impermissibility of underinclusive
classifications. 23 100 S. Ct. 2984 (1980). 1981] 1377 SUPREME
COURT REVIEW filed a concurring opinion. Justice Blackmun filed
an opinion concurring in the judgment. Justices White and Marshall
joined in the dissenting opinion of Justice Brennan. Justice Stevens
filed a separate dissenting opinion. In the plurality opinion, Justice
Rehnquist set out the appropriate standard for judicial review of
gender-based statutory classifications. The California statute treats
males and females under the age of eighteen differently and thereby
establishes a gender-based classification. Relying upon Stanton v.
Stanton,24 Craig v. Boren ,25 and Reed v. Reed,26 Justice
Rehnquist explained that a gender-based statutory classification will
survive an equal protection challenge if it bears a substantial
relationship to an important state objective. 27 Under this
intermediate level of scrutiny, gender-based classifications which
realistically reflect "the fact that the sexes are not similarly situated in
certain circumstances" 28 will survive the Court's scrutiny. In
examining California's purpose for its statutory rape law, Justice
Rehnquist prefaced his findings by noting that individual legislators
most likely voted for the statute for a variety of reasons and that the
actual purpose of the statute was "likely to be elusive."' 29 Justice
Rehnquist then accepted the State's assertion and the California
Supreme Court's conclusion that the prevention of illegitimate
teenage pregnancies was one of the purposes of the statute. Finding
this to be a permissible purpose for the statute, Justice Rehnquist
declined to consider the allegation that the actual legislative purpose

of the statute was, impermissibly, "to protect the virtue and chastity
of young women. ' '3 Applying the intermediate level of scrutiny,
Justice Rehnquist found that the California gender-based
classification does not violate the equal protection clause since the
classification bears a substantial relationship to the achievement of
an important state interest. In reaching 24 421 U.S. 7 (1975) (Utah
child support statute setting age of majority at 21 for males and at 18
for females violated the equal protection clause because the
classifications were not adequately related to the statutory objective).
25 429 U.S. 190 (1976) (Oklahoma statute prohibiting the sale of
3.2% beer to males under 21 and to females under 18 violated the
equal protection clause because the classifications were not
substantially related to the asserted purpose of enhancing traffic
safety). 26 404 U.S. 71 (1971) (Idaho statute giving a preference to a
man over a woman for appointment as an administrator of a
decedent's estate when both persons were of the same entitlement
class violated the equal protection clause because the state's
interest in administrative convenience could not justify such
discriminatory treatment). 27 Michael M. v. Superior Court of
Sonoma County, 101 S. Ct. at 1204. This intermediate level of
scrutiny is less demanding than the strict scrutiny standard applied
by the Supreme Court of California. See text accompanying note 13
supra. 28 Michael M. v. Superior Court of Sonoma County, 101 S.
Ct. at 1204. 29 Id. 30 Id. at 1205-06 n.7. 1378 [Vol. 72 STATUTORY
RAPE his decision, Justice Rehnquist initially recognized that the
prevention of teenage pregnancies is a matter in which the State has
an important interest.31 Moreover, he found that the punishment of
males who engage in sexual intercourse with females under the age
of eighteen years is substantially related to achieving the State's
objective of preventing teenage pregnancies. 32 According to Justice
Rehnquist, the exclusion of minor females, but not minor males, from
such punishment is reasonable because the criminal sanction
imposed only upon the males "serves to roughly 'equalize' the
deterrents on the sexes." 33 Without factual support or a discussion
of the effects of birth control on teenage sexuality, Justice Rehnquist
concluded that minor females are substantially deterred from
engaging in sexual intercourse by the risk of pregnancy. 34 He also
justified the unequal treatment of minor females and males by
accepting the State's contention that the gender-based classification
enhances effective enforcement of the statute. The state reasoned

that females would be less likely to report violations under a genderneutral statute for fear of being subjected to criminal prosecution. 35
Justice Rehnquist rejected the argument that the statute is overbroad
because it prohibits intercourse with prepubescent females who are
incapable of becoming pregnant. After noting that the statute could
be justified on the grounds that prepubescent females are
susceptible to injury from intercourse, Justice Rehnquist summarily
rejected the overbreadth argument as "ludicrous. '36 As a final point,
Justice Rehnquist noted that the statute burdens males and not
females. Since men have not traditionally been discriminated
against, Justice Rehnquist determined that males are not "in need of
the special solicitude of the courts."37 He concluded that the
discrimination of section 261.5 is not invidious, is not solely for
administrative convenience, and does not stem from sexual
stereotypes. "[T]he statute instead reasonably reflects the fact that
the consequences of sexual intercourse and pregnancy fall more
heavily on the female than on the male."38 In his concurring opinion,
Justice Stewart chose a simplistic reasoning process to uphold the
statute against the equal protection challenge. 31 Id. at 1205. 32 Id.
at 1206. 33 Id. 34 Id. 35 Id. at 1206-07. 36 Id. at 1207. With regard to
prepubescent children, Justice Stewart also found that the
discrimination was justified because female children faced greater
physical risks than male children. Id. at 1210 (Stewart, J.,
concurring). 37 Id. at 1208. Justice Rehnquist did not explain the
significance of this fact. 38 Id. 1981] 1379 SUPREME COURT
REVIEW Of significance to Justice Stewart was the fact that section
261.5 is only one part of California's statutory scheme to protect
minors from the dangers of adolescent sexual activity.39 Without
commenting upon the legislative purpose, Justice Stewart summarily
concluded that "[y]oung women and men are not similarly situated
with respect to the problems and risks associated with intercourse
and pregnancy, and the statute is realistically related to the
legitimate state purpose of reducing those problems and risks."4 He
assumed that risk of pregnancy is a significant deterrent for
unmarried minor females but not for unmarried males. Therefore,
Justice Stewart concluded that, since males are not situated in a
position similar to minor females, the state can limit criminal
punishment to males. 41 While Justice Stewart acknowledged that
California might have been able to draft the statute to more precisely
achieve the objective of preventing teenage pregnancies, he found

that the gender classifications of section 261.5 are permissible. 42
Justice Blackmun voted to affirm on the basis of the intermediate
level of scrutiny which was the same test used by Justices Rehnquist
and Stewart. 43 The major portion of Justice Blackmun's opinion,
however, was devoted to what he considered to be important
distinctions between the State's power to control the sexual activities
of minors and the State's power over individuals after conception has
occurred, especially as related to abortion decisions. 44 Justice
Blackmun expressed concern over the problem of teenage
pregnancies while recognizing that minors have "substantial privacy
rights in intimate affairs connected with procreation. '45 Justice
Blackmun would allow greater State interference with these rights
prior to conception than he would once a pregnancy occurred. 46 In
his dissenting opinion, Justice Brennan concluded that the State
failed to show that the gender-based classification bears a
substantial 39 Id. (Stewart, J. concurring). Also included in
California's statutory scheme are CAL. PENAL CODE 272, 647(a)
(West Supp. 1981) which prohibit any person of either sex from
molesting, annoying, or contributing to the delinquency of anyone
under eighteen years of age, and CAL. PENAL CODE 288 (West
Supp. 1981) which prohibits all persons from committing "any lewd or
lascivious act," including sexual intercourse, with a minor under
fourteen years of age. 40 101 S. Ct. at 1209 (Stewart, J.,
concurring). Apparently, Justice Stewart's realistic relation is similar
to the equalizer argument ofJustice Rehnquist. See note 33 and
accompanying text supra. 41 Id. at 1210. 42 Id. 43 Id. at 1211
(Blackmun, J., concurring). 44 Id. Justice Blackmun refers
specifically to Carey v. Population Services International, 431 U.S.
678 (1977) and Griswold v. Connecticut, 381 U.S. 479 (1965). 45
101 S. Ct. at 1211 (Blackmun, J., concurring). 46 Id. 1380 [Vol. 72
STATUTORY RAPE relationship to the prevention of teenage
pregnancies.47 Justice Brennan initially noted that the State has the
burden of proving both the importance of its objective and the
substantiality of the relationship between the classification and the
objective. He pointed out that, in order to meet this burden, the State
must show that a gender-neutral statute would be less effective than
a gender-based law in achieving the State's objective.48 Justice
Brennan cited two flaws in the State's assertion that a gender-neutral
statute would be less effective. First, he noted that at least thirty-
seven states have gender-neutral statutory rape laws and that

California offered no evidence that any of those states faced
enforcement or effectiveness problems. In addition, Justice Brennan
referred to sodomy and oral copulation statutes in California that
apply in a gender-neutral manner and are enforced without
increased difficulty.49 Second, even if a gender-neutral statute were
more difficult to enforce, the State failed to show that such a statute
would be less effective in deterring minor females from sexual
intercourse.50 As a consequence, Justice Brennan argued that the
State's failure to show that "a gender-neutral law would be a less
effective deterrent than a genderbased law, like the State's failure to
prove that a gender-neutral -law would be difficult to enforce,"
required the invalidation of section 261.5.51 Justice Brennan
commented that the State's inability to produce evidence of a
substantial relationship between the gender classification and the
prevention of teenage pregnancies was possibly due to the fact that
the gender classification of the statutory rape law stemmed from
"outmoded sexual stereotypes."'52 He concluded that section 261.5
47 Id. at 1215-16 (Brennan, J., dissenting). 48 Id. at 1215. Justice
Brennan relied upon the prior Supreme Court decisions in Kirchberg
v. Feenstra, 101 S. Ct. 1195 (1981); Wengler v. Druggists Mutual
Ins. Co., 446 U.S. 142 (1980); Caban v. Mohammed, 441 U.S. 380
(1979); Orr v. Orr, 440 U.S. 268 (1979); Craig v. Boren, 429 U.S. 190
(1976). His formulation on what the state must show illustrates how a
state can meet its burden of proving a substantial relationship
between a gender-based classification and a statutory objective. A
state will not be permitted to classify on the basis of sex if the state's
purpose could be served as well by a gender-neutral classification
that does not carry with it sexual stereotypes. Orr v. Orr, 440 U.S. at
283. 49 101 S. Ct. at 1216 (Brennan, J., dissenting); CAL. PENAL
CODE 286(b)(1), 288a(b)(1) (West Supp. 1981). 50 101 S. Ct. at
1216. 51 Id. at 1217. 52 Id. at 1218. He'also noted that pregnancy
prevention was first named as a purpose of 261.5 in the California
Supreme Court's decision in Michael M. despite the fact that the
statute has been in force for 130 years. Historically, 261.5 was
based on the stereotypical premise that the chastity of young women
was in need of special protection because young women were
considered legally incapable of consenting to sexual intercourse,
whereas young men were presumed to be legally capable of giving
such consent. For this contention, Justice Brennan cited the Statutes
of Westminster (3 Edw. 1, ch. 13 (1275), 13 Edw. 1, ch. 34 (1285)),

the draftsmen's notes to the Penal Code of 1872 (Code
Commissioners' note, subd. 1, foil. Pen. Code 261 (lst ed. 1872, p.1
1 l)), and Note, Forcible and Statutog Rape: An Explanation of the
1981] 1381 SUPREME COURT REVIEW violates the equal
protection clause and that the California Supreme Court should be
reversed. In his dissent, Justice Stevens expressed surprise over the
plurality's belief that the risk of pregnancy is an effective deterrent to
prevent minor females from engaging in sexual intercourse. He
acknowledged that minor females may need special protection in
order to prevent unwanted and illegitimate teenage pregnancies. Yet,
he argued that this need for protection warrants making minor
females subject to the statute rather than exempting them from it. 5 3
In making this argument, Justice Stevens recognized that the State
has an interest in preventing teenage pregnancies and could
effectuate this interest by prohibiting and punishing sexual
intercourse involving minor females.54 He contended that both
participants in "risk-creating conduct" should receive equal treatment
under the law unless one party is more guilty than the other.55 He
concluded that the imposition of criminal sanctions only upon the
male seemed to arbitrarily assume that the male is somehow more
guilty than the female for engaging in forbidden sexual activity.56 On
these grounds, he dissented. III. ANALYSIS In recent years, a
number of state and lower federal courts have considered, with
divergent outcomes, the constitutionality of genderbased statutory
rape laws.57 Hence, the Supreme Court's decision to consider this
question is not surprising. The outcome of Michael M. is Operation
and Objectives of the Consent Standard, 62 YALE L. J. 55 (1952).
Under the Statutes of Westminster, the age of consent for engaging
in sexual intercourse was twelve years old and therefore the
proscription on statutory rape was unrelated to pregnancy
prevention. The draftsmen's notes to the California Penal Code of
1872 did not mention pregnancy prevention as a purpose behind the
statutory rape law but rather referred to the inability of a girl under
ten years old to give consent to an act of intercourse. The Yale Law
Journal Note provides a general discussion of the historical purpose
of statutory rape laws. 53 101 S. Ct. at 1219 (Stevens, J.,
dissenting). 54 Id. at 1218. Justice Stevens referred to such activity
as "risk-creating conduct." 55 Id. at 1220. 56 Id. at 1220-21. ("A rule
that authorizes punishment of only one of two equally guilty
wrongdoers violates the essence of the constitutional requirement

that the sovereign must govern impartially.") 57 Cases in which the
constitutionality of gender-based "statutory rape" laws has been
upheld: Rundlett v. Oliver, 607 F.2d 495 (lst Cir. 1979); Hall v.
McKenzie, 537 F.2d 1232 (4th Cir. 1976); State v. Gray, 122 Ariz.
445, 595 P.2d 990 (1979); State v. Drake, 219 N.W.2d 492 (Iowa
1974); In Re Interest of J.D.G., 498 S.W.2d 786 (Mo. 1973); Olson v.
State, 95 Nev. 1, 588 P.2d 1018 (1979); State v. Wilson, 296 N.C.
298, 250 S.E.2d 621 (1979); State v. Elmore, 24 Or. App. 651, 546
P.2d 1117 (1976). Cases in which gender-based "statutory rape"
laws were held to violate equal protection include: United States v.
Hicks, 625 F.2d 216 (9th Cir. 1980), vacated, 101 S. Ct. 1752 (1981);
Navedo v. Preisser, 630 F.2d 636 (8th Cir. 1980); Meloon v.
Helgemoe, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950
(1978). 1382 [Vol. 72 STATUTORY RAPE unfortunate, however,
because it opens the way for state circumvention of the Equal
Protection Clause. Furthermore, the Supreme Court's decision in
Michael M suffers from three major flaws. First, the Supreme Court
should not have accepted the pregnancy prevention rationale without
questioning it. Second, the gender-based classification cannot bear a
substantial relation to the prevention of teenage pregnancies
because the statute is impermissibly overbroad. Finally, the statute
also fails to satisfy the substantial relation test since the classification
is underinclusive. A. ACCEPTANCE OF THE PREGNANCY
PREVENTION RATIONALE The United States Supreme Court
should have rejected the California Supreme Court's determination
that the prevention of teenage pregnancies was the purpose of
section 261.5. As explained by Justice Mosk, the true purpose
behind the statute was the protection of the chastity of minor females
who were presumed to be incapable of giving informed consent to
sexual intercourse.5 8 An examination of the history of statutory rape
laws, the language of section 261.5, and prior decisions of California
courts all suggest that prevention of teenage pregnancies was not
one of the purposes of the statute.59 The California Supreme Court's
eagerness to embrace pregnancy prevention as the purpose of
section 261.5 without any evidence to support the finding suggests
an attempt to circumvent the requirements of equal protection.
Certainly, nothing in the 130-year history of the statute justified the
conclusion that pregnancy prevention was a purpose behind the
statute. Rather, determination that pregnancy prevention is the
objective of section 261.5 was first made by the California Supreme

Court in Michael M. Other courts have refused to accept the
assertion by government 58 25 Cal. 3d at 617-21, 601 P.2d at 57880, 159 Cal. Rptr. at 346-48 (Mosk, J., dissenting). 59 Comment,
The Constlutionality of Statuloe Rape Laws, sumpra note 13, at 78687 ("[B]oth the history of statutory rape laws and the language of the
statute suggest that pregnancy prevention was not among the
purposes of California's statutory rape law."); Michael M. v. Superior
Court of Sonoma County, 25 Cal. 3d at 617-21, 601 P.2d at 577-80,
159 Cal. Rptr. at 346-48 (Mosk, J., dissenting) ("[R]educing illicit
pregnancies among teenage girls may well be a laudable
governmental objective, but it is wishful thinking to believe that the
California statutory rape law was actually enacted or reenacted for
that purpose.'); Michael M. v. Superior Court of Sonoma County, 101
S. Ct. at 1217 (Brennan, J., dissenting) ("Until very recently, no
California court or commentator had suggested that the purpose of
California's statutory rape law was to protect young women from the
risk of pregnancy. Indeed, the historical development of 261.5
demonstrates that the law was initially enacted on the premise that
young women, in contrast to young men, were to be deemed legally
incapable of consenting to an act of sexual intercourse.'); People v.
Hernandez, 61 Cal.2d 529, 393 P.2d 673, 39 Cal. Rptr. 316 (1964)
(describing the purpose of California's statutory rape law to be the
protection of young females presumed to be too innocent and naive
to give informed consent to sexual intercourse). 1981] 1383
SUPREME COURT REVIEW attorneys that gender-based statutory
rape laws were intended to prevent teenage pregnancies. In Meloon
v. Helgemoe,60 the First Circuit examined an asserted pregnancy
prevention rationale "with special wariness. '61 Because the ability to
become pregnant is unique to women, the Meloon court was alert to
the fact that "the very uniqueness of this characteristic makes it an
available hindsight catchall rationalization for laws that were
promulgated with totally different purposes in mind. ' 62 Since the
State failed to produce evidence supporting its assertion that
pregnancy prevention was a purpose of that particular statute, the
Meloon court refused to accept the pregnancy prevention rationale.
63 Similarly, the pregnancy prevention rationale was rejected in
another challenge to a statutory rape law in Navedo v. Preisser.64 In
N~avedo, the State of Iowa offered neither legislative history nor
other evidence to support its contention that a purpose of the statute
was the prevention of pregnancy. The Iowa Supreme Court,

however, had determined in an earlier case 65 that the state
legislature had enacted the statute for the purpose of preventing
teenage pregnancy and its attendant problems. 66 Despite this
earlier finding, the Navedo court concluded that pregnancy
prevention could not justify the gender-based statute. This
conclusion was based on a finding that the statute was
underinclusive since it excluded a class of males, those under
twenty-five, which could have intercourse with and cause pregnancy
in minor females. Accordingly, the Navedo court found the
pregnancy prevention justification implausible and proceeded to
inquire into the statute's actual purpose. 67 The United States
Supreme Court should have reached the same conclusion as the
Navedo court and thereby rejected the asserted purpose for the
California statutory rape statute. In light of history and prior decisions
of the California courts, the rationale of prevention of teenage 60 564
F.2d 602 (lst Cir. 1977). The statute at issue was N.H. REV. STAT.
ANN. 632:1 subd. I(c) (1973) (repealed, superseded by 632-A:2
(XI) (1975) which changed the age to 13) which made it a felony for
a male to have sexual intercourse with a female under the age of 15.
61 Id. at 607. 62 Id. 63 Id. at 608. 64 630 F.2d 636 (8th Cir. 1980).
The statute at issue was IOWA CODE 698.1 (1975) (repealed
1978) which made it a felony for a male over 25 to have sexual
intercourse with a female under 16. 65 State v. Drake, 219 N.W.2d
492 (Iowa 1974). 66 630 F.2d at 640. 67 Id. (citing Caban v.
Mohammed, 441 U.S. 380, 389 (1979); Califano v. Goldfarb, 430
U.S. 199, 209 n.8 (1977); Craig v. Boren, 429 U.S. 199, 209 n.8
(1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16 (1975)
for the proposition that "[a]lthough a court should accept the purpose
of a statute offered by the state or its courts, despite a lack of
legislative history, we remain free to inquire into the actual purpose
of the statute if the proffered justification is not plausible.") 1384 [Vol.
72 STATUTORY RAPE pregnancies appears to be nothing more
that a "hindsight catchall rationalization" 68 that is "not plausible. '69
By accepting the pregnancy prevention rationale without question,
the United States Supreme Court participated in this rationalization
process and thus denied equal protection to the defendant.
Moreover, with its MichaelM. decision, the Supreme Court has sent a
message to state courts and legislatures that the equal protection
clause can be circumvented by asserting for genderbased statutes a
sham purpose which hinges upon physical differences between the

sexes. Presumably, as long as they are adopted by the highest court
of the state, statutory objectives will not be questioned by the United
States Supreme Court even if they are implausible, hindsight
rationalizations that circumvent the guarantee of equal protection of
the laws. This result directly contravenes the notion of the Supreme
Court as the ultimate protector of constitutional rights. It is also
contrary to the Navedo court's conclusion, based upon four United
States Supreme Court cases, that a federal court could reject a state
supreme court's determination as to the purpose of a state law.70
Hence, the Supreme Court should have rejected the pregnancy
prevention rationale. The Supreme Court's reluctance to inquire into
the actual purpose of the statute was not totally unreasonable. The
Court will usually defer to the highest state court on a matter
considered to be a question of state law.7 1 Furthermore, an
examination of the four cases relied upon in Navedo reveals that the
Navedo court did not have unquestioned authority to inquire beyond
the statutory purpose adopted by the supreme court of that state. In
Craig v. Boren,72 the Supreme Court was concerned with possible
false, post hoc rationalizations asserted by a state as a litigant but
never adopted by that state's supreme court. In Cahfano v. Goldfarb
73 and Weinberger v. W~iesenfeld,74 the Supreme Court was
dealing with the actual purposes behind federal statutes, not state
laws. Finally, in Caban v. Mohammed,75 the Supreme Court rejected
one statutory justi- 68 Meloon v. Helgemoe, 564 F.2d at 607. 69
Navedo v. Preisser, 630 F.2d at 640. 70 See note 67 suipra. 71
Kingsley Intemat'l Pictures Corp. v. Regents of the Univ. of the State
of New York, 360 U.S. 684, 688 (1959); United States v. Burnison,
339 U.S. 87, 89 (1950). 72 429 U.S. at 199 n.7. ("For this appeal we
find adequate the appellee's representation of legislative purpose,
leaving for another day consideration of whether the statement of the
State's Assistant Attorney General should suffice to inform this Court
of the legislature's objectives, or whether the Court must determine if
the litigant simply is selecting a convenient, but false, bost hoc
rationalization.") 73 430 U.S. at 209 n.8 (dealing with 42 U.S.C.
402(0(1)(D) (1970 ed. & Supp. V)). 74 420 U.S. at 648 (dealing with
42 U.S.C. 402(g). "[T]he mere recitation of a benign, compensatory
purpose is not an automatic shield which protects against any inquiry
into the actual purposes underlying a statutory scheme."). 75 441
U.S. at 389-92. (New York statute in question allowed unwed
mothers but not unwed fathers to block adoption of the child by

withholding consent. The Court rejected the 1981] 1385 SUPREME
COURT REVIEW fication, offered by a litigant in the case, which had
never been adopted by a state court. While the Navedo court's
interpretation of these cases was broad, it was consistent with their
basic proposition that subsequent rationalizations, unsupported by
historical analysis, should not be accepted by courts in order to
uphold otherwise unconstitutional statutes. Therefore, in Michael M.,
where the pregnancy prevention rationale was obviously a hindsight
rationalization, the Supreme Court should have rejected the asserted
rationale and inquired into the actual purpose of the statute to ensure
that the constitutional guarantee of equal protection would be served.
B. OVERBREADTH AND UNDERINCLUSIVENESS Even if the
United States Supreme Court acted properly in accepting the
justification of pregnancy prevention, it still should have held the
statutory rape statute to be violative of equal protection. Under the
equal protection test for gender-based statutes, a classification
based upon sex must bear a substantial relationship to an important
state interest. 76 The importance and legitimacy of the prevention of
teenage pregnancies as a state interest is not questioned. 77
However, section 261.5 creates a sex classification that is not
substantially related to the objective of preventing teenage
pregnancies since the statute is both overbroad and underinclusive.
78 The effectiveness of a statutory rape law as a means of
preventing teenage pregnancies is open to question. Members of the
Court noted that the statute appears to be an ineffective deterrent of
such sexual activity. 79 Nevertheless, California is attempting to deal
with the teenage pregnancy problem by prohibiting intercourse rather
than by focusproffered justification that the classification was proper
because of fundamental differences between maternal and paternal
relations. The Court accepted the assertion that the purpose of the
statute was to promote the adoption of illegitimate children but found
that the statute was not substantially related to the achievement of
that purpose.) 76 Craig v. Boren, 429 U.S. at 197; Reed v. Reed,
404 U.S. 71 (1971). 77 One commentator has suggested that states
may not have a legitimate interest in preventing or regulating private
consensual intercourse by minors. Hence, statutory rape laws may
be subject to attack on substantive due process grounds as
impermissibly burdening the fundamental right of personal privacy.
The commentator relied most heavily upon the decision in Carey v.
Population Services International, 431 U.S. 678 (1977) in which the

Court held that the right of privacy in matters of procreation extends
to minors. However, the commentator concluded that such a
substantive due process challenge would probably fail since Carq
also recognized that the state has greater latitude in regulating the
conduct of minors than it does with regard to adults. Comment, The
Constitutionality of Statutory Rape Laws, supra note 13, at 800-03.
78 See note 16 supra. 79 101 S. Ct. at 1216 n.8 (Brennan, J.,
dissenting); 101 S. Ct. at 1218 n.2 (Stevens, J., dissenting). See alro
Di Gennaro, Statutory Rape Law in Califomia: Unequal Protection of
the Minor Male, 2 CRIM. JUSTIc. J. 239, 243 (1979). 1386 [Vol. 72
STA TUTORY RAPE3 ing its energies on encouraging the
responsible use of birth control methods. If California is serious
about the prevention of teenage pregnancies, a better approach to
the problem would arguably be to redirect its energies and funds
from the prosecution of acts of consensual intercourse to programs
educating youths concerning birth control methods and to clinics
providing contraceptives and birth control information. Even if the
California statutory rape law is effective in preventing teenage
pregnancies, section 261.5 is impermissibly overbroad.8 0 Sexual
intercourse involving pre-pubescent females, those who use effective
birth control, and those who are sterile is prohibited by the California
law. Yet, the prohibition of such activity cannot be substantially
related to the objective of preventing pregnancy because there is no
threat of pregnancy in these situations. If the prevention of teenage
pregnancies is to be accomplished through a statutory rape law
prohibiting consensual intercourse, the state of California should be
required to exempt from the operation of the statute acts of
intercourse which cannot result in pregnancy. If individuals engaging
in consensual intercourse without risk of pregnancy are not exempt
from prosecution under the statute, some other purpose must be
used to justify the prohibitions of the statutory rape law as applied to
them. Finally, if pregnancy prevention is the only purpose of the
statute and if it includes within its prohibitions sexual intercourse with
individuals who are not yet of child-bearing age or who are sterile or
exercise birth control, the statute must fail as being overinclusive in
violation of equal protection. Of the justices voting to uphold the
statute, only Justice Rehnquist attempted to address this question of
overbreadth. He summarily rejected the argument by stating that "it
is ludicrous to suggest" that equal protection requires the exclusion
of pre-pubescent females from the scope of a statutory rape law.8

Indeed, such a suggestion is ludicrous. However, the suggestion is
inane only because it cuts so sharply against the historical purpose
of statutory rape laws, the protection of the virtue of young females
who are presumed incapable of consent.8 2 Use of this historical
purpose would defeat the overbreadth challenge raised above. Yet,
protecting only minor females on the basis of such an asserted state
interest would be constitutionally impermissible. The presumption
that young females are incapable of consent while young males are
capable of giving such consent is a stereotype that state laws are
forbidden from perpetuating.83 80 See note 16 supra. 81 101 S. Ct.
at 1207. 82 See Di Gennaro, note 79 supra. See also Note, Forcible
and Statutory Rape, note 52 supra. 83 See Orr v. Orr, 440 U.S. at
283. ("Legislative classifications which distribute benefits 1981] 1387
SUPREME COURT REVIEW A second possible justification for
applying the statutory rape law to sexual intercourse with prepubescent females would be that young females are in special need
of protection from physical and psychological injuries resulting from
consensual sexual intercourse. 84 If protection from physical or
psychological injury is the purpose for including prepubescent
females within the scope of the statute, the State would have to
show that pre-pubescent females are not similarly situated with
regard to the possibility of such injury as are males of the same
age.8 5 Clearly, in Michael M., no such showing was made. As a
consequence, the gender-based prohibitions of California's statutory
rape law cannot be justified by the assertion of a secondary purpose
such as the protection of young females from injury or the
presumption of incapability of consent. The validity of the statute's
prohibitions must therefore depend upon the substantiality of the
relationship between the statutory classifications and the objective of
teenage pregnancy prevention. California's pregnancy prevention
rationale does not justify the application of the statute to acts of
intercourse involving those who exercise effective means of birth
control or who are sterile or too young to bear children. Since these
individuals do not create a risk of pregnancy by engaging in sexual
intercourse, the prohibition on their sexual activity adds further
support to the argument that the true purpose of the statute was the
protection of the chastity of young females presumed incapable of
giving consent, rather than the prevention of teenage pregnancies.
The prohibition on sexual intercourse involving individuals who
create no risk of pregnancy is not substantially related to pregnancy

prevention. Therefore, the gender-based statute must fail for
overbreadth under the intermediate level of equal protection scrutiny.
The California statute is also constitutionally defective because it is
underinclusive. 86 The petitioner in Michael M. argued that, in order
to pass judicial scrutiny the statute must be made gender-neutral by
holding the females as criminally liable as the males.87 Justice
Rehnquist rejected this argument of underinclusiveness by finding
that the genderbased distinction was justified because criminal
sanctions imposed only upon males served to equalize the
deterrents on the sexes and aided the and burdens on the basis of
gender carry the inherent risk of reinforcing stereotypes about the
'proper place' of women and their need for special protection.") The
Orr Court added that a state cannot be allowed to classify on the
basis of sex where the state's purpose could be served as well by a
gender-neutral classification as by a gender-based classification
which carries with it sexual stereotypes. 84 Di Gennaro, note 79
supra. 85 Craig v. Boren, 429 U.S. at 200-04. 86 See note 16 supra.
87 101 S. Ct. at 1206. 1388 [Vol. 72 STA TUTORY RAPE state in
the effective enforcement of the statute."" Yet neither of these
arguments justifies California's unequal treatment of males and
females. The position that the gender-based statute is justified
because it serves to equalize the deterrents for engaging in sexual
intercourse as between males and females is untenable. First,
neither Justice Rehnquist nor Justice Stewart cited any authority for
the proposition that females are deterred from engaging in sexual
intercourse more often than males by the risk of pregnancy. To the
contrary, Justice Stevens concluded that the risk of pregnancy is not
an effective deterrent to females engaging in sexual intercourse.8 9
Even if females are more often deterred because of possible
pregnancy, these natural sanctions do not justify unequal treatment
under the laws.9 The equal protection clause guarantees that
individuals will receive equal treatment under the laws. Unequal
treatment by nature does not justify unequal treatment by the state.9
' The argument that the gender-based classification is substantially
related to effective enforcement of the law also fails, since the state
did not show that a gender-neutral statute would be a less effective
means of enforcing the law and thereby of preventing teenage
pregnancies. 92 Justice Brennan set forth evidence that would
indicate that effective enforcement and deterrence are possible
under a gender-neutral statutory rape law. He cited the existence of

gender-neutral laws in at least thirtyseven states and gender-neutral
sodomy and oral copulation statutes in California. 93 He even
asserted that a gender-neutral statute could serve as a greater
deterrent to the conduct which the state was seeking to prevent. 94
Since effective enforcement and deterrence could be achieved
through a gender-neutral law as well as the present California
scheme, the gender-based classification is not substantially related
to the achievement of the state's asserted purpose.95 The State's
failure to meet its 88 Id. Justice Stewart also accepted the equalizer
theory as a basis for upholding the law. See a/so text accompanying
note 33 supra. 89 Id. at 1219 (Stevens, J., dissenting). 90 Id. at
1219-20. ("But from the standpoint of fashioning a general preventive
rule-or, indeed, in determining appropriate punishment when neither
party in fact has suffered any special harm-I regard a total exemption
for the members of the more endangered class as utterly irrational.
In my opinion, the only acceptable justification for a general rule
requiring disparate treatment of the two participants in a joint act
must be a legislative judgment that one is more guilty than the
other.") 91 The fourteenth amendment guarantees "equal protection
of the laws." U.S. CONST. amend. XIV, I. See also note 90 supra.
92 See Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142; Orr v.
Orr, 440 U.S. at 281, 283. See note 49 supra. 93 101 S. Ct. at 1216
(Brennan, J., dissenting). 94 Id. at 1216-17. (A gender-neutral statute
would arguably serve as a greater deterrent since it would have "a
deterrent effect on twice as many potential violators.") 95 See note
48 & accompanying text supra. 1981] 1389 SUPREME COURT
REVIEW burden of establishing a substantial relation between
pregnancy prevention and the sex classification of the statute should
have resulted in the declaration of the unconstitutionality of the
statute based upon underinclusiveness as well as overbreadth. C.
EQUAL PROTECTION AND STATUTORY RAPE LAWS AFTER
MICHAEL M. The decision in Michael M. is unfortunate because it
opens the door for states to justify gender-based statutes with
"hindsight catchall rationalizations.196 In the interest of equal
protection, states should not be given free rein to develop sham
purposes for their gender-based legislation. This freedom would
allow the states to rely on the possibility of pregnancy as proof that
males and females are not similarly situated for purposes of justifying
other gender-based statutes. Michael M. is also disturbing since it
perpetuates the stereotype of the female as less knowledgeable than

the male, incapable of giving informed consent to sexual intercourse,
and therefore less responsible for her actions with regard to sexual
activities than her male counterpart. 97 At the same time, it
preserves the stereotype of the male as an aggressor from whom the
female must be protected even in consensual relations. In discussing
the case, Justice Rehnquist relies on such stereotypes when he
refers to the legislature's purpose of protecting minor females. 98 His
rejection of the overbreadth argument as "ludicrous" also suggests
that he subconsciously views the purpose of the statutory rape law to
be the protection of young females regardless of their capacity to
become pregnant. 99 The time has come to recognize that statutory
rape laws can legitimately be based only upon a state interest in
protecting minors, both male and female, from the physical and
psychological injuries that can result from engaging in sexual
intercourse. Personal privacy rights demand that sexual intercourse
be prohibited only for those who are incapable of giving informed
consent. Hence, the age of eighteen set by California seems too high
in light of the understanding of today's youth. Once an age of
consent is determined by a legislature, statutory rape laws should
apply equally to males and females below that age unless the state
can prove that the sexes are not similarly situated with regard to the
risk of injuries, both physical and psychological, that can result from
engaging in sexual intercourse. Some have suggested that the pre96 Meloon v. Helgemoe, 564 F.2d at 607. See notes 61-63 &
accompanying text supra. 97 See Michael M. v. Superior Court of
Sonoma County, 25 Cal. 3d at 624-25, 601 P.2d at 582-83, 159 Cal.
Rptr. at 350-51 (Mosk, J., dissenting). 98 101 S. Ct. at 1206. 99 Id. at
1207. 1390 [Vol. 72 STATUTORY RAPE sumption of incapacity to
consent under a certain age should be rebuttable. 100 While this
approach would afford greater due process to a defendant and
protect the privacy rights of minors, it would create proof problems
and significant uncertainty. A gender-neutral statute with a
conclusive presumption of incapacity coinciding approximately with
the onset on puberty would be a good alternative since it would
reflect the probable average age at which minors could give informed
consent without substantially burdening privacy rights.' 0' To afford
additional protection, a rebuttable presumption of incapacity to
consent could be established for minors between the age of puberty
and age sixteen or eighteen. 102 The punishment for violation of
such statutory rape laws should fall only upon the adult partner.
Minors who are incapable of consent should not be subjected to
criminal sanctions by these statutes since the laws are designed to
protect the minors from the harmful consequences of acts for which
they are presumed not responsible because of their youth.
Therefore, in Michael M., the seventeen-year-old petitioner should
have been afforded the same protections as the sixteen-year-old
"victim." IV. CONCLUSION Michael M. was wrongly decided by both
the California Supreme Court and the United States Supreme Court.
Although the State failed to prove that teenage pregnancy prevention
was the purpose of the statute, the Courts accepted this rationale as
the statutory objective. By allowing California to maintain a genderbased statute without an inquiry into its actual purpose, the Supreme
Court participated in a denial of equal protection of the laws.
Legislatures and courts need to recognize that the historical purpose
of statutory rape laws was to protect those who are incapable of
consenting to sexual intercourse. While only females were protected
in the past, many states have now realized the need for protecting
both young males and young females from the possible adverse
consequences of engaging in acts to which the youths are incapable
of giving informed consent. As a consequence, these states have
enacted gender-neutral statutory rape laws. 103 Moreover, the
gender-based classification of section 261.5 is not substantially
related to the purported purpose of preventing teenage pregnancies.
The statute is impermissibly overbroad and defectively 100 Note,
Forcible and Statutoq Rape, supra note 52, at 78; Comment, The
Constitutionalip of Statutoq Rape Laws, supra note 13 at 813. 101
Comment, The Constifutionali of Satlutoy Rape Laws, supra note 13,
at 813. 102 Id. 103 101 S. Ct. at 1216 (Brennan, J., dissenting).
1981] 1391 1392 SUPREME COURT REVIEW [Vol. 72
underinclusive. As suggested above, the state could use more
effective means for preventing teenage pregnancies which would not
infringe upon privacy interests and would not violate equal
protection. With regard to statutory rape laws, these should be
gender-neutral and tailored to achieve their true purpose of
protecting those who are incapable of giving informed consent to
sexual intercourse. In this manner, states can effectuate their
important interests without perpetuating sexual stereotypes and
without infringing upon the fourteenth amendment guarantee of
equal protection.

SUPREME COURT
EN BANC
G.R. No. 161357 November 30, 2005
ELENA P. DYCAICO, Petitioner,
vs.
SOCIAL SECURITY SYSTEM and SOCIAL SECURITY
COMMISSION, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review under Rule 45 of the Rules
of Court filed by Elena P. Dycaico which seeks to reverse and set
aside the Decision1 dated April 15, 2003 of the Court of Appeals
(CA) in CA-G.R. SP
No. 69632. The assailed decision affirmed the Resolution dated
February 6, 2002 of the Social Security Commission (SSC), denying
the petitioners claim for survivors pension accruing from the death
of her husband Bonifacio S. Dycaico, a Social Security System
(SSS) member-pensioner. Likewise sought to be reversed and set
aside is the appellate courts Resolution dated December 15, 2003,
denying the petitioners motion for reconsideration.
The case arose from the following undisputed facts:
Bonifacio S. Dycaico became a member of the SSS on January 24,
1980. In his self-employed data record (SSS Form RS-1), he named
the petitioner, Elena P. Dycaico, and their eight children as his
beneficiaries. At that time, Bonifacio and Elena lived together as
husband and wife without the benefit of marriage.
In June 1989, Bonifacio was considered retired and began receiving

his monthly pension from the SSS. He continued to receive the
monthly pension until he passed away on June 19, 1997. A few
months prior to his death, however, Bonifacio married the petitioner
on January 6, 1997.
Shortly after Bonifacios death, the petitioner filed with the SSS an
application for survivors pension. Her application, however, was
denied on the ground that under Section 12-B(d) of Republic Act
(Rep. Act) No. 8282 or the Social Security Law2 she could not be
considered a primary beneficiary of Bonifacio as of the date of his
retirement. The said proviso reads:
Sec. 12-B. Retirement Benefits.
(d) Upon the death of the retired member, his primary beneficiaries
as of the date of his retirement shall be entitled to receive the
monthly pension.
Applying this proviso, the petitioner was informed that the
Records show that the member [referring to Bonifacio] was
considered retired on June 5, 1989 and monthly pension was
cancelled upon our receipt of a report on his death on June 19, 1997.
In your death claim application, submitted marriage contract with the
deceased member shows that you were married in 1997 or after his
retirement date; hence, you could not be considered his primary
beneficiary.
In view of this, we regret that there is no other benefit due you.
However, if you do not conform with us, you may file a formal petition
with our Social Security Commission to determine your benefit
eligibility.3
On July 9, 2001, the petitioner filed with the SSC a petition alleging
that the denial of her survivors pension was unjustified. She
contended that Bonifacio designated her and their children as

primary beneficiaries in his SSS Form RS-1 and that it was not
indicated therein that only legitimate family members could be made
beneficiaries. Section 12-B(d) of Rep. Act No. 8282 does not,
likewise, require that the primary beneficiaries be legitimate relatives
of the member to be entitled to the survivors pension. The SSS is
legally bound to respect Bonifacios designation of them as his
beneficiaries. Further, Rep. Act No. 8282 should be interpreted to
promote social justice.
On February 6, 2002, the SSC promulgated its Resolution affirming
the denial of the petitioners claim. The SSC refuted the petitioners
contention that primary beneficiaries need not be legitimate family
members by citing the definitions of "primary beneficiaries" and
"dependents" in Section 8 of Rep. Act No. 8282. Under paragraph (k)
of the said provision, "primary beneficiaries" are "[t]he dependent
spouse until he or she remarries, the dependent legitimate,
legitimated or legally adopted, and illegitimate children " Paragraph
(e) of the same provision, on the other hand, defines "dependents"
as the following: "(1) [t]he legal spouse entitled by law to receive
support from the member; (2) [t]he legitimate, legitimated or legally
adopted, and illegitimate child who is unmarried, not gainfully
employed and has not reached twenty-one (21) years of age, or if
over twenty-one (21) years of age, he is congenitally or while still a
minor has been permanently incapacitated and incapable of selfsupport, physically or mentally; and (3) [t]he parent who is receiving
regular support from the member." Based on the foregoing,
according to the SSC, it has consistently ruled that entitlement to the
survivors pension in ones capacity as primary beneficiary is
premised on the legitimacy of relationship with and dependency for
support upon the deceased SSS member during his lifetime.
Under Section 12-B(d) of Rep. Act No. 8282, the primary
beneficiaries who are entitled to survivors pension are those who
qualify as
such as of the date of retirement of the deceased member. Hence,
the petitioner, who was not then the legitimate spouse of Bonifacio
as of the date of his retirement, could not be considered his primary
beneficiary. The SSC further opined that Bonifacios designation of
the petitioner as one of his primary beneficiaries in his SSS Form
RS-1 is void, not only on moral considerations but also for

misrepresentation. Accordingly, the petitioner is not entitled to claim
the survivors pension under Section 12-B(d) of Rep. Act No. 8282.
Aggrieved, the petitioner filed with the CA a petition for review of the
SSCs February 6, 2002 Resolution. In the assailed Decision, dated
April 15, 2003, the appellate court dismissed the petition. Citing the
same provisions in Rep. Act No. 8282 as those cited by the SSC, the
CA declared that since the petitioner was merely the common-law
wife of Bonifacio at the time of his retirement in 1989, his designation
of the petitioner as one of his beneficiaries in the SSS Form RS-1 in
1980 is void. The CA further observed that Bonifacios children with
the petitioner could no longer qualify as primary beneficiaries
because they have all reached twenty-one (21) years of age. The
decretal portion of the assailed decision reads:
WHEREFORE, premises considered, the Petition is DISMISSED and
the assailed 06 February 2002 Resolution of respondent
Commission is hereby AFFIRMED in toto. No costs.
SO ORDERED.4
The petitioner sought reconsideration of the said decision but in the
assailed Resolution dated December 15, 2003, the appellate court
denied her motion. Hence, the petitioners recourse to this Court.
The petitioner points out that the term "primary beneficiaries" as
used in Section 12-B(d) of Rep. Act No. 8282 does not have any
qualification. She thus theorizes that regardless of whether the
primary beneficiary designated by the member as such is legitimate
or not, he or she is entitled to the survivors pension. Reliance by the
appellate court and the SSC on the definitions of "primary
beneficiaries" and "dependents" in Section 8 of Rep. Act No. 8282 is
allegedly unwarranted because these definitions cannot modify
Section 12-B(d) thereof.
The petitioner maintains that when she and Bonifacio got married in
January 1997, a few months before he passed away, they merely
intended to legalize their relationship and had no intention to commit
any fraud. Further, since Rep. Act No. 8282 is a social legislation, it
should be construed liberally in favor of claimants like the petitioner.
She cites the Courts pronouncement that "the sympathy of the law
on social security is toward its beneficiaries, and the law, by its own
terms, requires a construction of utmost liberality in their favor." 5
The SSS, on the other hand, contends that Section 12-B(d) of Rep.
Act No. 8282 should be read in conjunction with the definition of the
terms "dependents" and "primary beneficiaries" in Section 8 thereof.
Since the petitioner was not as yet the legal spouse of Bonifacio at
the time of his retirement in 1989, she is not entitled to claim the
survivors pension accruing at the time of his death. The SSS insists
that the designation by Bonifacio of the petitioner and their
illegitimate children in his SSS Form RS-1 is void.
According to the SSS, there is nothing in Rep. Act No. 8282 which
provides that "should there be no primary or secondary beneficiaries,
the benefit accruing from the death of a member should go to his
designated common-law spouse" and that "to rule otherwise would
be to condone the designation of common-law spouses as
beneficiaries, a clear case of circumventing the SS Law and a
violation of public policy and morals."6 Finally, the SSS is of the
opinion that Section 12-B(d) of Rep. Act No. 8282 is clear and
explicit; hence, there is no room for its interpretation, only for
application.
In the Resolution dated July 19, 2005, the Court required the parties,
as well as the Office of the Solicitor General, to file their respective
comments on the issue of whether or not the proviso "as of the date
of his retirement" in Section 12-B(d) of Rep. Act No. 8282 violates
the equal protection and due process clauses of the Constitution.
The Court believes that this issue is intertwined with and
indispensable to the resolution of the merits of the petition.
In compliance therewith, in its comment, the SSC argues that the
proviso "as of the date of his retirement" in Section 12-B(d) of Rep.
Act No. 8282 does not run afoul of the equal protection clause of the
Constitution as it merely determines the reckoning date of
qualification and entitlement of beneficiaries to the survivorship
pension. It asserts that this classification of beneficiaries is based on

valid and substantial distinctions that are germane to the legislative
purpose of Rep. Act No. 8282.
The SSC also impugns the marriage of the petitioner to Bonifacio
after his retirement stating that it was contracted as an afterthought
to enable her to qualify for the survivorship pension upon the latters
death. It further alleges that there is no violation of the due process
clause as the petitioner was given her day in court and was able to
present her side.
The SSS filed its separate comment and therein insists that the
petitioner was not the legitimate spouse of the deceased member at
the time when the contingency occurred (his retirement) and,
therefore, she could not be considered a primary beneficiary within
the contemplation of Rep. Act No. 8282. The SSS posits that the
statutes intent is to give survivorship pension only to primary
beneficiaries at the time of the retirement of the deceased member.
Rep. Act No. 8282 itself ordains the persons entitled thereto and
cannot be subject of change by the SSS.
The Solicitor General agrees with the stance taken by the SSS that
the proviso "as of the date of his retirement" merely marks the period
when the primary beneficiary must be so to be entitled to the
benefits. It does not violate the equal protection clause because the
classification resulting therefrom rests on substantial distinctions.
Moreover, the condition as to the period for entitlement, i.e., as of the
date of the members retirement, is relevant as it set the parameters
for those availing of the benefits and it applies to all those similarly
situated. The Solicitor General is also of the view that the said
proviso does not offend the due process clause because claimants
are given the opportunity to file their claims and to prove their case
before the Commission.
For clarity, Section 12-B(d) of Rep. Act No. 8282 is quoted anew
below:
Sec. 12-B. Retirement Benefits.

(d) Upon the death of the retired member, his primary beneficiaries
as of the date of his retirement shall be entitled to receive the
monthly pension.
Under Section 8(k) of the same law, the "primary beneficiaries" are:
1. The dependent spouse until he or she remarries; and
2. The dependent legitimate, legitimated or legally adopted, and
illegitimate children.
Further, the "dependent spouse" and "dependent children" are
qualified under paragraph (e) of the same section as follows:
1. The legal spouse entitled by law to receive support until he or she
remarries; and
Decree (P.D.) No. 11469 which stated that "the dependent spouse
shall not be entitled to said pension if his marriage with the pensioner
is contracted within three years before the pensioner qualified for the
pension." In the said case, the Court characterized retirement
benefits as property interest of the pensioner as well as his or her
surviving spouse. The proviso, which denied a dependent spouses
claim for survivorship pension if the dependent spouse contracted
marriage to the pensioner within the three-year prohibited period,
was declared offensive to the due process clause. There was
outright confiscation of benefits due the surviving spouse without
giving him or her an opportunity to be heard. The proviso was also
held to infringe the equal protection clause as it discriminated against
dependent spouses who contracted their respective marriages to
pensioners within three years before they qualified for their pension.
For reasons which shall be discussed shortly, the proviso "as of the
date of his retirement" in Section 12-B(d) of Rep. Act No. 8282
similarly violates the due process and equal protection clauses of the
Constitution.
2. The dependent legitimate, legitimated or legally adopted, and

illegitimate child who is unmarried, not gainfully employed and has
not reached twenty-one (21) years of age, or if over twenty-one
years of age, he is congenitally or while still a minor has been
permanently incapacitated and incapable of self-support, physically
or mentally.
The proviso infringes the equal protection clause
The SSS denied the petitioners application for survivors pension on

the sole ground that she was not the legal spouse of Bonifacio "as of
the date of his retirement;" hence, she could not be considered as
his primary beneficiary under Section 12-B(d) of Rep. Act No. 8282.
(1) Those dependent spouses whose respective marriages to SSS

members were contracted prior to the latters retirement; and
The Court holds that the proviso "as of the date of his retirement" in
Section 12-B(d) of Rep. Act No. 8282, which qualifies the term
"primary beneficiaries," is unconstitutional for it violates the due
process and equal protection clauses of the Constitution.7
In an analogous case, Government Service Insurance System v.
Montesclaros,8 the Court invalidated the proviso in Presidential
As illustrated by the petitioners case, the proviso "as of the date of

his retirement" in Section 12-B(d) of Rep. Act No. 8282 which
qualifies the term "primary beneficiaries" results in the classification
of dependent spouses as primary beneficiaries into two groups:
(2) Those dependent spouses whose respective marriages to SSS

members were contracted after the latters retirement.
Underlying these two classifications of dependent spouses is that
their respective marriages are valid. In other words, both groups are
legitimate or legal spouses. The distinction between them lies solely
on the date the marriage was contracted. The petitioner belongs to
the second group of dependent spouses, i.e., her marriage to
Bonifacio was contracted after his retirement. As such, she and
those similarly situated do not qualify as "primary beneficiaries"

under Section 12-B(d) of Rep. Act No. 8282 and, therefore, are not
entitled to survivors pension under the same provision by reason of
the subject proviso.
It is noted that the eligibility of "dependent children" who are
biological offsprings of a retired SSS member to be considered as
his primary beneficiaries under Section 12-B(d) of Rep. Act No. 8282
is not substantially affected by the proviso "as of the date of his
retirement." A biological child, whether legitimate, legitimated or
illegitimate, is entitled to survivors pension upon the death of a
retired SSS member so long as the said child is unmarried, not
gainfully employed and has not reached twenty-one (21) years of
age, or if over twenty-one (21) years of age, he or she is congenitally
or while still a minor has been permanently incapacitated and
incapable of self-support, physically or mentally.
On the other hand, the eligibility of legally adopted children to be
considered "primary beneficiaries" under Section 12-B(d) of Rep. Act
No. 8282 is affected by the proviso "as of the date of his retirement"
in the same manner as the dependent spouses. A legally adopted
child who satisfies the requirements in Section 8(e)(2) 10 thereof is
considered a primary beneficiary of a retired SSS member upon the
latters death only if the said child had been legally adopted prior to
the members retirement. One who was legally adopted by the SSS
member after his or her retirement does not qualify as a primary
beneficiary for the purpose of entitlement to survivors pension under
Section 12-B(d) of Rep. Act No. 8282.
In any case, the issue that now confronts the Court involves a
dependent spouse who claims to have been unjustly deprived of her
survivors pension under Section 12-B(d) of Rep. Act No. 8282.
Hence, the subsequent discussion will focus on the resultant
classification of the dependent spouses as primary beneficiaries
under the said provision.
As earlier stated, the petitioner belongs to the second group of
dependent spouses, i.e., her marriage to Bonifacio was contracted
after his retirement. She and those similarly situated are undoubtedly
discriminated against as the proviso "as of the date of his retirement"

disqualifies them from being considered "primary beneficiaries" for
the purpose of entitlement to survivors pension.
Generally, a statute based on reasonable classification does not
violate the constitutional guaranty of the equal protection clause of
the law.11 With respect to Rep. Act No. 8282, in particular, as a social
security law, it is recognized that it "is permeated with provisions that
draw lines in classifying those who are to receive benefits.
Congressional decisions in this regard are entitled to deference as
those of the institution charged under our scheme of government
with the primary responsibility for making such judgments in light of
competing policies and interests."12
However, as in other statutes, the classification in Rep. Act No. 8282
with respect to entitlement to benefits, to be valid and reasonable,
must satisfy the following requirements: (1) it must rest on
substantial distinctions; (2) it must be germane to the purpose of the
law; (3) it must not be limited to existing conditions only; and (4) it
must apply equally to all members of the same class. 13
The legislative history of Rep. Act No. 8282 does not bear out the
purpose of Congress in inserting the proviso "as of the date of his
retirement" to qualify the term "primary beneficiaries" in Section 12B(d) thereof. To the Courts mind, however, it reflects congressional
concern with the possibility of relationships entered after retirement
for the purpose of obtaining benefits. In particular, the proviso was
apparently intended to prevent sham marriages or those contracted
by persons solely to enable one spouse to claim benefits upon the
anticipated death of the other spouse.
This concern is concededly valid. However, classifying dependent
spouses and determining their entitlement to survivors pension
based on whether the marriage was contracted before or after the
retirement of the other spouse, regardless of the duration of the said
marriage, bears no relation to the achievement of the policy objective
of the law, i.e., "provide meaningful protection to members and their
beneficiaries against the hazard of disability, sickness, maternity, old
age, death and other contingencies
resulting in loss of income or financial burden."14 The nexus of the

classification to the policy objective is vague and flimsy. Put
differently, such classification of dependent spouses is not germane
to the aforesaid policy objective.
For if it were the intention of Congress to prevent sham marriages or
those entered in contemplation of imminent death, then it should
have prescribed a definite "duration-of-relationship" or durational
period of relationship as one of the requirements for entitlement to
survivors pension. For example, in the United States, a provision in
their social security law which excludes from social security benefits
the surviving wife and stepchild of a deceased wage earner who had
their respective relationships to the wage earner for less than nine
months prior to his death, was declared valid.15 Thus, nine months is
recognized in the United States as the minimum duration of a
marriage to consider it as having been contracted in good faith for
the purpose of entitlement to survivorship pension.
In contrast, the proviso "as of the date of his retirement" in Section
12-B(d) in Rep. Act No. 8282 effectively disqualifies from entitlement
to survivors pension all those dependent spouses whose respective
marriages to retired SSS members were contracted after the latters
retirement. The duration of the marriage is not even considered. It is
observed that, in certain instances, the retirement age under Rep.
Act No. 8282 is sixty (60)
years old.16 A marriage contracted by a retired SSS member after
the said age may still last for more than ten years, assuming the
member lives up to over seventy (70) years old. In such a case, it
cannot be said that the marriage was a sham or was entered into
solely for the purpose of enabling one spouse to obtain the financial
benefits due upon the death of the other spouse. Nonetheless, the
said surviving spouse is not entitled to survivors pension because he
or she is not a primary beneficiary as of the date of retirement of the
SSS member following Section 12-B(d) of Rep. Act No. 8282.
Further, the classification of dependent spouses on the basis of
whether their respective marriages to the SSS member were
contracted prior to or after the latters retirement for the purpose of
entitlement to survivors pension does not rest on real and
substantial distinctions. It is arbitrary and discriminatory. It is too
sweeping because the proviso "as of the date of his retirement,"

which effectively disqualifies the dependent spouses whose
respective marriages to the retired SSS member were contracted
after the latters retirement as primary beneficiaries, unfairly lumps all
these marriages as sham relationships or were contracted solely for
the purpose of acquiring benefits accruing upon the death of the
other spouse. The proviso thus unduly prejudices the rights of the
legal surviving spouse, like the petitioner, and defeats the avowed
policy of the law "to provide meaningful protection to members and
their beneficiaries against the hazards of disability, sickness,
maternity, old age, death, and other contingencies resulting in loss of
income or financial burden."17
The proviso infringes the due process clause
As earlier opined, in Government Service Insurance System v.
Montesclaros,18 the Court characterized retirement benefits as a
property interest of a retiree. We held therein that "[i]n a pension plan
where employee participation is mandatory, the prevailing view is
that employees have contractual or vested rights in the pension
where the pension is part of the terms of employment." 19 Thus, it was
ruled that, "where the employee retires and meets the eligibility
requirements, he acquires a vested right to benefits that is protected
by the due process clause" and "[r]etirees enjoy a protected property
interest whenever they acquire a right to immediate payment under
pre-existing law."20 Further, since pursuant to the pertinent law
therein, the dependent spouse is entitled to survivorship pension, "a
widows right to receive pension following the demise of her husband
is also part of the husbands contractual compensation."21
Although the subject matter in the above-cited case involved the
retirement benefits under P.D. No. 1146 or the Revised Government
Service Insurance Act of 197722 covering government employees,
the pronouncement therein that retirees enjoy a protected property
interest in their retirement benefits applies squarely to those in the
private sector under Rep. Act No. 8282. This is so because the
mandatory contributions of both the employers23and the
employees24 to the SSS do not, likewise, make the retirement
benefits under Rep. Act No. 8282 mere gratuity but form part of the
latters compensation. Even the retirement benefits of self-employed
individuals, like Bonifacio, who have been included in the compulsory

coverage of Rep. Act No. 828225 are not mere gratuity because they
are required to pay both the employer and employee
contributions.26 Further, under Rep. Act No. 8282, the surviving
spouse is entitled to survivors pension accruing on the death of the
member; hence, the surviving spouses right to receive such benefit
following the demise of the wife or husband, as the case may be, is
also part of the latters contractual compensation.
The proviso "as of the date of his retirement" in Section 12-B(d) of
Rep. Act No. 8282 runs afoul of the due process clause as it
outrightly deprives the surviving spouses whose respective
marriages to the retired SSS members were contracted after the
latters retirement of their survivors benefits. There is outright
confiscation of benefits due such surviving spouses without giving
them an opportunity to be heard.
By this outright disqualification of the surviving spouses whose
respective marriages to SSS members were contracted after the
latters retirement, the proviso "as of the date of his retirement"
qualifying the term "primary beneficiaries" for the purpose of
entitlement to survivors pension has created the presumption that
marriages contracted after the retirement date of SSS members
were entered into for the purpose of securing the benefits under Rep.
Act No. 8282. This presumption, moreover, is conclusive because
the said surviving spouses are not afforded any opportunity to
disprove the presence of the illicit purpose. The proviso, as it creates
this conclusive presumption, is unconstitutional because it presumes
a fact which is not necessarily or universally true. In the United
States, this kind of presumption is characterized as an "irrebuttable
presumption" and statutes creating permanent and irrebutable
presumptions have long been disfavored under the due process
clause. 27
In the petitioners case, for example, she asserted that when she and
Bonifacio got married in 1997, it was merely to legalize their
relationship and not to commit fraud. This claim is quite believable.
After all, they had been living together since 1980 and, in fact, during
that time their eldest child was already twenty-four (24) years old.
However, the petitioner was not given any opportunity to prove her
claim that she was Bonifacios bona fide legal spouse as she was
automatically disqualified from being considered as his primary
beneficiary. In effect, the petitioner was deprived of the survivors
benefits, a property interest, accruing from the death of Bonifacio
without any opportunity to be heard. Standards of due process
require that the petitioner be allowed to present evidence to prove
that her marriage to Bonifacio was contracted in good faith and as
his bona fide spouse she is entitled to the survivors pension
accruing upon his death.28 Hence, the proviso "as of the date of his
retirement" in Section 12-B(d) which deprives the petitioner and
those similarly situated dependent spouses of retired SSS members
this opportunity to be heard must be struck down.
Conclusion
Even as the proviso "as of the date of his retirement" in Section 12B(d) is nullified, the enumeration of primary beneficiaries for the
purpose of entitlement to survivors pension is not substantially
affected since the following persons are considered as such under
Section 8(k) of Rep. Act No. 8282:
(1) The dependent spouse until he or she remarries; and
(2) The dependent legitimate, legitimated or legally adopted, and
illegitimate children.
In relation thereto, Section 8(e) thereof qualifies the dependent
spouse and dependent children as follows:
(1) The legal spouse entitled by law to receive support from the
member;
(2) The legitimate, legitimated or legally adopted, and illegitimate
child who is unmarried, not gainfully employed and has not reached
twenty-one years (21) of age, or if over twenty-one (21) years of age,
he is congenitally or while still a minor has been permanently
incapacitated and incapable of self-support, physically or mentally.
Finally, the Court concedes that the petitioner did not raise the issue
of the validity of the proviso "as of the date of his retirement" in
Section 12-B(d) of Rep. Act No. 8282. The rule is that the Court does
not decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.29 However, the question of the
constitutionality of the proviso is absolutely necessary for the proper
resolution of the present case. Accordingly, the Court required the
parties to present their arguments on this issue and proceeded to
pass upon the same in the exercise of its equity jurisdiction and in
order to render substantial justice to the petitioner who, presumably
in her advanced age by now, deserves to receive forthwith the
survivors pension accruing upon the death of her husband.
WHEREFORE, the petition is GRANTED. The Decision dated April
15, 2003 and Resolution dated December 15, 2003 of the Court of
Appeals in CA-G.R. SP No. 69632 are REVERSED and SET ASIDE.
The proviso "as of the date of his retirement" in Section 12-B(d) of
Rep. Act No. 8282 is declared VOID for being contrary to the due
process and equal protection clauses of the Constitution. The Social
Security System cannot deny the claim of petitioner Elena P.
Dycaico for survivors pension on the basis of this invalid proviso.
SO ORDERED.

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represented by its Executive Director

- versus HON. EDUARDO ERMITA, in his

BAGONG ALYANSANG MAKABAYAN

WORKERS, LEAGUE OF FILIPINO

GLORIA MACAPAGAL-ARROYO, in her

GLORIA MACAPAGAL-ARROYO, in her

THE INTEGRATED BAR OF THE

EXECUTIVE SECRETARY EDUARDO

PARA SA REPORMANG AGRARYO

INVESTIGATION (NBI), THE BUREAU

CARPIO MORALES, J.:

Union and Human Rights (CTUHR), represented by their respective

Justice and Peace (EMJP), and Promotion of Church Peoples

Response (PCPR), which were represented by their respective

filed a petition for certiorari and prohibition docketed as G.R. No.

petition for certiorari and prohibition docketed as G.R. No. 178890.

The following day, July 17, 2007, organizations Bagong Alyansang

On August 29, 2007, the Integrated Bar of the Philippines (IBP),

Makabayan (BAYAN), General Alliance Binding Women for Reforms,

Counsels for the Defense of Liberty (CODAL),[6] Senator Ma. Ana

Integrity, Equality, Leadership and Action (GABRIELA), Kilusang

Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada

Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for

filed a petition for certiorari and prohibition docketed as G.R. No.

Civil Liberties (MCCCL), Confederation for Unity, Recognition and

Advancement of Government Employees (COURAGE), Kalipunan ng

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other

(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang

regional chapters and organizations mostly based in the Southern

Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of

Concerned Teachers (ACT), Migrante, Health Alliance for Democracy

on September 19, 2007 a petition for certiorari and prohibition

(HEAD), and Agham, represented by their respective officers, [4] and

docketed as G.R. No. 179461that replicates the allegations raised in

joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr.

the BAYAN petition in G.R. No. 178581.

Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John

Impleaded as respondents in the various petitions are the Anti-

Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina

Terrorism Council[9] composed of, at the time of the filing of the

Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de

petitions, Executive Secretary Eduardo Ermita as Chairperson,

Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign

and prohibition docketed as G.R. No. 178581.

Affairs Secretary Alberto Romulo, Acting Defense Secretary and

On August 6, 2007, Karapatan and its alliance member organizations

National Security Adviser Norberto Gonzales, Interior and Local

Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa

Government Secretary Ronaldo Puno, and Finance Secretary

Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for

also impleaded Armed Forces of the Philippines (AFP) Chief of Staff

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded

quasi-judicial functions has acted without or in

particularity how respondents acted without or in excess of their

respective jurisdictions, or with grave abuse of discretion amounting

The impropriety of certiorari as a remedy aside, the petitions fail just

In constitutional litigations, the power of judicial review is limited by

four exacting requisites, viz: (a) there must be an actual case or

exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the

controversy; (b) petitioners must possess locus standi; (c) the

Rules of Court is clear:

question of constitutionality must be raised at the earliest opportunity;